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Media Bloggers Association's Amicus Curiae Brief (Righthaven)

Media Bloggers Association's Amicus Curiae Brief (Righthaven)

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Published by Jay DeVoy
Media Bloggers Association's Amicus Curiae Brief in Righthaven v. Hyatt
Media Bloggers Association's Amicus Curiae Brief in Righthaven v. Hyatt

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Published by: Jay DeVoy on Mar 24, 2011
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RandazzaLegal Group7001 W Charleston Blvd#1043Las Vegas, NV 89117(888) 667-1113
J. Malcolm DeVoy IV (Nevada Bar No. 11950)Marc J. Randazza (
Application for pro hac vice admission pending 
)RANDAZZA LEGAL GROUPjmd@Randazza.commjr@Randazza.com7001 W. Charleston Boulevard, # 1043Las Vegas, NV 89117Telephone: 888-667-1113Facsimile: 305-437-7662Ronald D. Coleman (
Application for pro hac vice admission pending 
)GOETZ FITZPATRICK LLPrcoleman@goetzfitz.com1 Penn Plaza – Suite 4401New York, NY 10119Telephone: 212-695-8100Facsimile: 212-629-4013Attorneys for 
Amicus Curiae
,Media Bloggers Association
RIGHTHAVEN, LLC, a Nevada limited liabilitycompany,Plaintiff,vs.BILL HYATT, an individualDefendant.Case No. 2:10-cv-01736-KJD-RJJ
BRIEFI. Introduction
Righthaven is a Nevada LLC (hereinafter, “Righthaven”) with the most questionable of business models. It was formed by an attorney who, instead of simply representing copyrightplaintiffs in justifiable cases, chose to create an entirely champertous enterprise out of unsoundcopyright claims. Its “business model” is to seek out unwitting and, perhaps, careless bloggers
Case 2:10-cv-01736-KJD-RJJ Document 19-1 Filed 02/23/11 Page 1 of 22
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RandazzaLegal Group7001 W Charleston Blvd#1043Las Vegas, NV 89117(888) 667-1113
who have used portions of the
Las Vegas Review Journal 
in online discussions. OnceRighthaven finds these uses by conducting internet “sweeps,” it fallaciously “acquires” the rightsto the articles in question, essentially as causes of action, solely for the purpose of filing alawsuit.The vast majority of the victims of this scheme are under the impression that by givingproper attribution to a source, they are within their rights to use such excerpts. Almost none of them could ever afford legal representation; flummoxed by the threat of a $150,000 potentialstatutory damage award – an amount that it can safely be said none of them could dream of satisfying – and lacking even a clue as to whom to turn to for advice, many will simply default.Righthaven now seeks to turn a default into a windfall by asking this Court to grant it aconstitutionally impermissible and outrageous award of at least $30,000 in statutory damages,ranging up to $150,000.00 in this matter, in addition to $1,850.00 in costs and attorney’s fees
– all based on specious infringement claims for forgotten newspaper articles whose economicvalue is surely orders of magnitude below these astronomical sums.Righthaven’s assertion of itself as the plaintiff in these suits is dubious, abusive, andcontrary to the Copyright Act’s intent. In order to sue for copyright infringement, one must ownthe copyright or be the owner, assignee or licensee of an “exclusive” copyright right found in 17U.S.C. § 106.
Sybersound Records, Inc. v. UAV Corp.
, 517 F.3d 1137, 1145-46 (9th Cir. 2008);
Silvers v. Sony Pictures Entmt., Inc.
, 402 F.3d 881, 887 (9th Cir. 2005) (“only owners of anexclusive right in a copyright may sue”). The right to sue is not considered an exclusive andintrinsic right, and can only be asserted by a bona fide owner, assignee, or licensee of anexclusive copyright right.
, 517 F.3d at 1146. In short, contrary to the entire premiseof the Righthaven enterprise, copyright owners are not permitted to assign their rights to sueindependent of their ownership of the work sued upon.
, 402 F.3d at 884 (holding that theright to sue is not an exclusive, assignable right under 17 U.S.C. § 106).
17 U.S.C. §§ 412, 504(c), 505.
Case 2:10-cv-01736-KJD-RJJ Document 19-1 Filed 02/23/11 Page 2 of 22
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RandazzaLegal Group7001 W Charleston Blvd#1043Las Vegas, NV 89117(888) 667-1113
If the
Las Vegas Review-Journal 
(hereinafter, the “LVRJ”) or its parent company,Stephens Media LLC (hereinafter, “Stephens Media”), were the plaintiffs in these cases, thisargument would not apply. But Righthaven’s exercise in champerty seeks to make an end-runaround the rule of law limiting the right to sue for copyright infringement to creators and thoselegitimate enterprises that make creativity possible and protectable. Nobody can seriouslybelieve that Righthaven, which publishes nothing anywhere, has acquired the full ownership of the articles it sues upon. The assignments it secures – only after finding “infringed” articles tosue over – contain mysterious (and heretofore unexamined) language about a “right of reversion”which, on frank consideration, demonstrates how transparently illegitimate these “assignments”are.Phony “assignments” are not the only venal and manipulative aspects of the Righthavenscheme. By design, Righthaven sues mostly retirees who, terrified of losing their retirementsavings, generally settle their cases quickly and without discovery. But this Court should notrestrain its own duty to inquire into the underlying law and facts on which both Righthaven’sclaims and Righthaven’s coerced settlements are based when considering its decision ondamages in this case. This Court should hold serious doubts about the propriety of Righthavenbringing these suits with rights obtained from a third party that has no stated stake in thislitigation or related cases. Either the LVRJ and Stephens Media are “selling lawsuits,” which isimpermissible under 
, 402 F. 3d at 884-85, or Righthaven is simply a law firm in disguise,engaged in champerty, which is impermissible in Nevada, as it is almost everywhere legal ethicsand fundamental justice are a concern of the law.
Schwartz v. Eliades
, 113 Nev. 586, 589 (Nev.1997);
Lum v. Stinnett 
, 87 Nev. 402, 408 (Nev. 1971). Without revealing exactly what exclusiverights Righthaven has acquired in the works, if acquiring any at all, Righthaven essentially buysthe bare right to sue for copyright infringement – which purchase is banned by copyright law – and uses it to sue small website operators by the hundreds. Left unchallenged, Righthaven’spractices create a secondary commodities market for copyrights, or exclusive subsidiary rights incopyrights, to be used only in suing others who may have valid defenses, but cannot afford to
Case 2:10-cv-01736-KJD-RJJ Document 19-1 Filed 02/23/11 Page 3 of 22

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