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Righthaven’s Copyright Case|Quickly Dispatched by 9th Circuit

(CN) - Calling yourself a copyright owner doesn't make it so, the 9th Circuit ruled Thursday, making quick work of the controversial copyright enforcer Righthaven.

The federal appeals court in Pasadena affirmed the Las Vegas District Court's dismissal of two copyright infringement lawsuits that Righthaven filed under an agreement with Stephens Media, owner of the Las Vegas Review-Journal. The ruling could doom hundreds more actions filed in recent years by Righthaven, a company founded by attorney Steven Gibson in 2010 that has become a favorite enemy of fair-use advocates.

The key issue in the case was whether a Strategic Alliance Agreement

(SAA) with Stephens Media actually gave Righthaven ownership of any copyrights. Without that, the company has no standing to sue any alleged infringers.

Typical of the Righthaven's other actions, the present cases involve Wayne Hoehn, who pasted a Review-Journal article into the comments section of, and former Assistant U.S. Attonrey Thomas DiBiase, who included an article about a "no body" murder case in his blog dedicated to that subject.

Disparaged as a "copyright troll" by the fair-use crowd, Righthaven filed more than 250 suits in various courts against bloggers and others who posted Review -Journal articles on websites without permission to do so. The 9th Circuit consolidated Hoehn's and DiBiase's cases for appeal after they were tossed out of Las Vegas by U.S. District Judge Roger Hunt. That judge has said the SAA merely gave Righthaven the right to sue, and did not confer ownership of anything.

Hunt based his reasoning on the 9th Circuit's 2005 ruling that "a bare right to sue for infringement" is not enough for standing.

After expressing deep skepticism in Righthaven's arguments during oral arguments in February, a three-judge appeals panel affirmed the dismissals in a 14-page ruling published Thursday.

The ruling begins by recalling Abraham Lincoln's story about a lawyer "who tried to establish that a calf had five legs by calling its tail a leg."

"Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership," Judge Richard Clifton wrote for the panel. "Heeding Lincoln's wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so."

Righthaven's agreement limited what it could and could not do with any of the supposedly assigned copyrights to the extent that "Righthaven did not actually possess any exclusive rights under the Copyright Act," the decision states.

"The SAA provided that Stephens Media automatically received an exclusive license in any copyrighted work it assigned to Righthaven, so that Stephens Media retained 'the unfettered and exclusive ability' to exploit the copyrights," Clifton wrote. "Righthaven, on the other hand, had 'no right or license' to exploit the work or participate in any royalties associated with the exploitation of the work. The contracts left Righthaven without any ability to reproduce the works, distribute them, or exploit any other exclusive right under the Copyright Act.. Without any of those rights, Righthaven was left only with the bare right to sue, which is insufficient for standing under the Copyright Act and Silvers."

After Hoehn and DiBiase filed their motions to dismiss in Las Vegas, Righthaven attempted to rework its agreement with Stephens Media to meet the standing requirements. Hunt was unconvinced by this tactic, as was the appellate panel.

"In general, jurisdiction is based on facts that exist at the time of filing," Clifton wrote. "The Supreme Court has enunciated few exceptions to this general principle. So far, permitting standing based on a property interest acquired after filing is not one of them."

The panel also rejected Righthaven's argument that the District Court had improperly "failed to construe the contract in accordance with the 'parties' intent" to convey enough rights to create standing.

"The SAA clearly delineated the respective rights of Righthaven and Stephens Media in any assigned works," Clifton wrote. "Moreover, the contract evinced not just an intent that Righthaven receive whatever rights were necessary for it to sue, but also an intent that Stephens Media retained complete control over all exclusive rights. The problem is not that the district court did not read the contract in accordance with the parties' intent; the problem is that what the parties intended was invalid under the Copyright Act."

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