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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 11-16751

RIGHTHAVEN LLC, Appellant v. WAYNE HOEHN, Appellee

APPELLANT RIGHTHAVEN LLCS OPENING BRIEF Appeal from the United States District Court for the District of Nevada Case No. 2:11-cv-00050-PMP-RJJ SHAWN A. MANGANO, LTD. Shawn A. Mangano, Esq. Nevada Bar No. 6730 8367 West Flamingo Road, Suite 100 Las Vegas, Nevada 89147 Phone: (702) 304-0432 Fax: (702) 922-3851 Counsel for Appellant Righthaven LLC

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Appellant Righthaven LLC, a Nevada limited-liability company, files this statement identifying parent corporations and publicly held companies that own 10-percent or more of its stock: None. Dated this 28th day of November, 2011. SHAWN A. MANGANO, LTD. By: /s/ Shawn A. Mangano SHAWN A. MANGANO, ESQ. Nevada Bar No. 6730 shawn@manganolaw.com 8367 West Flamingo Road Suite 100 Las Vegas, Nevada 89147 Attorney for Appellant Righthaven LLC

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TABLE OF CONTENTS I. STATEMENT OF JURISDICTION ...................................................... 1 II. ISSUES PRESENTED FOR REVIEW .................................................. 2 III. STATEMENT OF THE CASE ............................................................. 3 IV. STATEMENT OF RELEVANT FACTS .............................................. 4 V. ARGUMENT SUMMARY .................................................................. 10 VI. ARGUMENT ....................................................................................... 12

A. The District Court Erred in Concluding it Lacked Subject Matter Jurisdiction Under Silvers Over Righthavens Copyright Infringement Action Based on Its Interpretation of The Assignment And The SAA. .. 12 B. The District Court Erred in Finding it Lacked Subject Matter Jurisdiction Under the Amendment. ........................................................ 24 C. The District Court Erred by Substantively Adjudicating The Merits of The Defendants Fair Use Defense After Determining That it Lacked Subject Matter Jurisdiction Over The Dispute. ....................................... 26 D. Assuming Subject Matter is Found to Exist Upon Review, The District Court Erred in Granting Summary Judgment on Fair Use Grounds in View of The Defendants 100% Unauthorized Replication of The Work. ................................................................................................ 29 1. The District Court Erred in Its Purpose And Character of The Use Analysis. ....................................................................................... 30 2. The District Court Erred in Its Nature of The Copyrighted Work Analysis. ........................................................................................ 35

3. The District Court Erred in Its Analysis of the Amount of The Copyrighted Work Used. ............................................................... 37 4. The District Court Erred in Its Effect Upon The Potential Market For The Work Analysis.................................................................. 38

V. CONCLUSION ..................................................................................... 40
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TABLE OF AUTHORITIES FEDERAL CASES A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) ----------------------------------------------------------------------- 29, 33, 31, 39 ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991) ------------------------------------------------------------------------------ 15 Atwood v. Fort Peck Tribal Court Assiniboine & Sioux Tribes, 513 F.3d 943, 946 (9th Cir. 2008) -------------------------------------------------------- 12 Burnett v. Twentieth Century Fox Film Corp., 491 F.Supp.2d 962, 967 (C.D. Cal. 2007) ----------------------------------------------------------------- 30 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) -------- 29, 39 Cone Corp. v. Florida Dept of Transp., 921 F.2d 1190, 1203 n. 42 (11th Cir. 1991) ------------------------------------------------------------------------- 28 Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir.1985) ------- 28 Fisher v. Dees, 794 F.2d 432, 435-36 (9th Cir. 1986) ------------------------ 30 Haper & Row Publishers, Inc. v. Nation Enter., 471 U.S.539, 562 (1985) 33 Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir. 1986) ------------------------------------------------------------------------- 37 Key Maps, Inc. v. Pruitt, 470 F. Supp. 33, 38 (S.D. Tex. 1978). ------------ 21 Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983) --------------------- 36 Morongo Band of Mission Indians v. California State Bd. of Equalization, 858 F.2d 1376, 1380-81 (9th Cir. 1988) -------------------------------------- 27 Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir. 2009) -------------- 30 Orff v. United States, 358 F.3d 1137, 1149 (9th Cir. 2004) ------------------ 27 Pressleys Estate v. Russen, 513 F. Supp. 1339, 1350 (D. N. J. 1981) ----- 21 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)---------------- 27 Silvers v. Sony Pictures Entmt Inc., 402 F.3d 881, 884 (9th Cir. 2005) ------------------------------------------------------------------------------- passim Sony Computer Entmt, Inc. v. Connectix Corp., 203 F.3d 596, 607 (9th Cir. 2000) ------------------------------------------------------------------------------ 39 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984) ------------------------------------------------------------------------------------- 39 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) 27 Supermarket of Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1409 (9th Cir. 1986) ----------------------------------------------- 36 Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir.1990) --------------------------- 27 Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757 (9th Cir. 1978) ----- 37 Wilbur v. Locke, 423 F.3d 1101, 1106 (9th Cir. 2005) ------------------------ 27

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Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1115-16 (9th Cir. 2000) ------------------------------------------------- 31

STATE CASES Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 488, 117 P.3d 219, 224 (2005) -----------------------------------------------------------------23 STATUTES 17 U.S.C. 107 -------------------------------------------------------------------- 29 FED.R.CIV.P. 12(h)(3) ------------------------------------------------------------- 12

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I.

STATEMENT OF JURISDICTION (a) District Court Jurisdiction: Appellant Righthaven LLC

(Righthaven) sought to invoke the district courts subject matter jurisdiction over its copyright infringement Complaint pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1331. The district court determined that it lacked federal question subject matter jurisdiction over Righthavens copyright infringement action, which is a primary issue on appeal in this matter. (b) Appellate Jurisdiction: This Court has jurisdiction pursuant to

28 U.S.C. 1291. (c) Timeliness of Appeal: Righthavens appeal is timely pursuant

to Federal Rule of Appellate Procedure 4(a)(1)(A). The Clerks Judgment was entered in this action on June 20, 2011. Righthavens Notice of Appeal was filed on July 19, 2011. (d) Appeal From Final Judgment: This case is an appeal of a final

judgment entered on June 20, 2011.

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II.

ISSUES PRESENTED FOR REVIEW 1. Whether the district erred by determining that it lacked subject

matter jurisdiction over Righthavens copyright infringement, which was based on an accrued infringement claim, given the companys receipt of an assignment of ownership in the copyrighted work at issue along with the express right to sue for, among other things, past, accrued infringement claims (the Assignment) from Stephens Media LLC (Stephens Media) because the terms of a Strategic Alliance Agreement (the SAA) granted Stephens Media a license-back to exploit the assigned work after the transfer of ownership to Righthaven. 2. Whether the district court erred, to the extent its decision is not deemed advisory, by determining that its lacked subject matter jurisdiction over Righthavens copyright infringement action under the terms of a Clarification and Amendment to Strategic Alliance Agreement (the Amendment). 3. Whether the district court erred by granting summary judgment on the grounds that the alleged infringing conduct at issue constituted fair use under 17 U.S.C. 107 (Section 107) after it had determined that subject matter jurisdiction was absent over the dispute.

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4. Whether, if subject matter is found to exist upon review, the district court erred by entering summary judgment on fair use grounds. III. STATEMENT OF THE CASE On January 11, 2011, Righthaven filed its Complaint for copyright infringement. (EOR 1 at #1.) On February 4, 2011, Defendant Wayne Hoehn (Defendant) answered the Complaint. (Id. at 7.) On February 11, 2011, the Defendant filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Rule 56) in which he asserted that any alleged infringement was protected as fair use under Section 107. (Id. at # 8.) The district court took Defendants motion for summary judgment under advisement following oral argument. (Id. at # 19.) On April 17, 2011, Defendant moved to dismiss Righthavens Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)). (Id. at # 16.) Defendants Rule 12(b)(1) motion argued that Righthaven lacked standing to sue for the accrued infringement claim under the Assignment in view of the more general terms of the SAA. (Id.) In response, Righthaven argued, among other things, that the Assignment effectively conveyed the accrued infringement claim, thereby giving it standing, and the terms of the SAA and the terms of the

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Amendment further supported the companys standing to maintain the action. (EOR 1 at # 23.) On June 20 2011, the district court found that it lacked subject matter over the action and dismissed Righthavens Complaint without prejudice. (EOR 28.) In so dismissing, the district court interpreted the Assignment in view of the more general contractual provisions of the SAA, which does not specifically grant any assignments to any works. (Id. at 8-10.) Despite finding that it lacked subject matter under the terms of the Assignment in view of the SAA and that the jurisdictional record was limited to the facts at issue at the time the action was commenced, the district court nevertheless further reasoned that it also lacked subject matter under the terms of the Amendment. (Id. at 10.) The district court then proceeded to grant Defendants motion for summary judgment on fair use grounds even though it had already determined that it lacked subject matter jurisdiction over the action. (Id. at 13-16.) Righthaven thereafter appealed the district courts decision. (EOR 33.) IV. STATEMENT OF RELEVANT FACTS

Righthaven asserts that it is the owner of a copyrighted editorial piece entitled Public employee pensions. We cant afford them (the Work), which originally appeared in the Las Vegas Review-Journal on or about

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November 28, 2010. (EOR at 1 # 1.) On December 6, 2010, Stephens Media, the original owner of the Work, assigned all rights, title and interest in and to the Work, including the right to seek redress for all past, present and future infringements to Righthaven. (EOR 25, Ex. 1; EOR 24, Ex. 1.) Separate and apart from the Assignment, Stephens Media and Righthaven had entered into the SAA, which was subsequently clarified and amended while the copyright infringement claims were pending before the district court. (EOR 25, Ex. 2; EOR 24, Ex. 2.) Righthaven contends that Defendant was a registered user of and content contributor to the Internet domain <madjacksports.com> (the Domain and the content available through the Internet at the Domain is referred to herein as the Website). (EOR 1 at # 1.) Since July 13, 1999, Defendant has been identified by the as the user name Dogs that Bark on the Website. (Id.) According to data published on the Website as of the time the Complaint was filed, Defendant had contributed content to the Website through approximately 18,000 total posts. (Id.) The owner of the Website apparently never employed Defendant. (Id.) Righthavens Complaint alleged that on or about November 29, 2010, the Defendant displayed a 100% unauthorized reproduction of the Work as part of the content contributed by him on the Website. (Id.) Thus,

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Defendants alleged act of copyright infringement occurred prior to the Assignment, thereby constituting an accrued claim at the time Righthaven was conveyed ownership rights in and to the Work along with the right to sue for past, present and future infringement claims. Defendant was further alleged to have willfully violated the exclusive copyrights to the Work. (EOR 1 at # 1.) Shortly after answering the Complaint, the Defendant filed a motion for summary judgment in which he asserted that any alleged infringement was protected as fair use under Section 107. (EOR 1 at # 8.) No discovery had occurred as of Defendants Rule 56 filing and none had occurred prior to oral argument on Defendants motion. Defendants Rule 56 motion was taken under advisement by the district court following oral argument. (EOR 1 at # 19.) While Defendants Rule 56 motion was pending, he filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). (EOR 1 at # 16.) Defendants Rule 12(b)(1) motion argued that Righthaven lacked standing to sue for the accrued infringement claim under the Assignment in view of the more general terms of the SAA. (Id.) On or about May 9, 2011, Righthaven and Stephens Media executed the Amendment, which, among other things, clarified that Stephens Media

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was to be granted a non-exclusive license to exploit works assigned by it to Righthaven. (EOR 25 at 3-4, Ex. 3; EOR 24 at 3, Ex. 3.) The Amendment was effective as of January 18, 2010, thereby making it applicable to all previously assigned works under the SAA. (EOR 25 at 3-4, Ex. 3; EOR 24 at 3, Ex. 3.) Righthaven thereafter responded the Defendants Rule 12(b)(1) dismissal request. (EOR 1 at # 23.) Righthavens response argued, among other things, that it was granted all rights, title and interest in and to the Work along with the express right to sue for past, present and future infringements by Stephens Media under the Assignment. (Id.) As such, the company was vested with standing to sue for, at least, a past, accrued infringement of the Work. (Id.) Righthaven further argued that the SAA terms did not alter this required conclusion, which was wholly consistent with the companys and Stephens Medias intent when entering into the agreement. (Id.) Righthaven also maintained that to the extent the Court was inclined to conclude the SAA failed to vest Righthaven with standing, it was expressly empowered to correct any defects in the SAA to effectuate the parties intent. (Id.) Finally, Righthaven asserted that the Amendment removed all doubt as to whether the company had standing to maintain suit

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because it further clarified that Stephens Media only held an exclusive license to exploit the assigned Work under the SAAs terms. (EOR 1 # 23.) On June 20, 2011, the district court found, without entertaining oral argument, that it lacked subject matter over the action and dismissed Righthavens Complaint without prejudice. (EOR 28.) The district court did not consider the Assignment on its own merits, but instead interpreted the Assignment in view of the more general contractual provisions of the SAA despite the fact the SAA does not specifically effectuate the assignment of any work. (Id. at 8-10.) In so interpreting the Assignment in conjunction with the SAA, the district court concluded that Righthaven was left with the mere right to sue and, as such, it lacked standing under this Courts decision in Silvers v. Sony Pictures Entmt Inc., 402 F.3d 881, 884 (9th Cir. 2005) (Silvers). (Id.) After determining that the jurisdictional facts were limited to those in existence at the time of filing and that subject matter jurisdiction was lacking, the district court then proceeded to find that Righthaven also lacked standing to maintain its case under the terms of the Amendment. (Id. at 10.) Specifically, the district court found that despite the Assignment expressly granting Righthaven ownership of the Work and the right to sue for, at least accrued infringement claims and the Amendment clarifying that

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Stephens Media was given a non-exclusive license in any assigned works, Righthaven still on held a bare right to sue. (EOR 28 at 10.) Accordingly, the district court determined that Righthaven lacked standing to maintain its copyright infringement action because both the SAA and the Amendment, despite delineating post-assignment license rights granted back to Stephens Media, served to divest it of ownership of the Work and the right to sue for at least accrued infringement claims under the express language of the Assignment. (Id. at 8-10.) Righthaven maintains the district court erred in determining as a matter of law that it lacked subject matter jurisdiction over the companys copyright infringement action against the Defendant. Having determined that it lacked subject matter jurisdiction over Righthavens copyright infringement action, the district court proceeded to grant Defendants motion for summary judgment by finding that his alleged infringing conduct constituted fair use as a matter of law under Section 107. (Id. at 11-16.) The district court reasoned that the Defendants 100% replication in an online discussion group was for a noncommercial use, that despite being an editorial piece the Work had a lesser creative element than a fictional work, that a finding of fair use was not precluded by the unauthorized, wholesale replication of the Work, and that Righthaven had not affirmatively demonstrated through admissible evidence the

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Defendants 100% replication of the Work caused any market harm. (EOR 28 at 11-16.) Righthaven contends the district court erred by adjudicating Defendants motion for summary judgment after determining that it lacked subject matter over the action. Assuming subject matter jurisdiction is found to exist upon review, the district court erred as a matter of law by granting summary judgment on fair use grounds. V. ARGUMENT SUMMARY 1. The district court erred as a matter of law in determining that it lacked subject matter jurisdiction over Righthavens copyright infringement action against the Defendant. As required by this Courts en banc decision in Silvers, Stephens Media assigned Righthaven ownership of the Work along with the express right to sue for, among other things, past infringements of the Work. Following assignment of the work to Righthaven, Stephens Media was granted a license-back to exploit the Work and to enjoy revenue from its exploitation efforts under the terms of the SAA. In sum, the transactional structure at issue in this case necessarily required ownership of the Work to vest in Righthaven pursuant to the express terms of the Assignment before Stephens Media was granted a license-back of exploitation rights under the SAA.

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Despite this transactional structure fully complying with the requirements of the Silvers decision, the district court determined that Righthaven was only conferred the bare right to sue and, as such, failed to vest the company with standing to maintain suit. Righthaven maintains the district court erred in its analysis and this Court must reverse the determination that subject matter jurisdiction was absent in Righthavens copyright infringement suit against the Defendant. 2. While arguably advisory in nature, Righthaven additionally argues below that the district court erred as a matter of law by determining that it lacked subject matter jurisdiction given the terms of Amendment to the SAA. 3. Given the determination that it lacked subject matter jurisdiction over Righthavens copyright infringement action, the district court erred as a matter of law by subsequently providing a merits-based adjudication on the merits of the Defendants fair use defense by granting his motion for summary judgment. Simply put, the district court is precluded from deciding the merits of a claim or defense once subject matter jurisdiction is absent from a case. 4. Assuming subject matter is found to exist upon review, the district court erred as a matter of law by entering summary judgment in favor of the

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Defendant on fair use grounds. Specifically, the district courts determination fails to correctly apply the law of this Court in circumstances involving the 100% unauthorized replication of a copyrighted work. Under such circumstances, a finding of fair use is virtually unsustainable. VI. ARGUMENT A. The District Court Erred in Concluding it Lacked Subject Matter Jurisdiction Under Silvers Over Righthavens Copyright Infringement Action Based on Its Interpretation of The Assignment And The SAA. Righthaven maintains the district court erred in determining that it lacked subject matter jurisdiction over the companys copyright infringement action based on application of this Courts decision in Silvers. (EOR 28 at 8-10.) Accordingly, this Court should reverse the district courts subject matter jurisdiction determination. The existence of subject matter jurisdiction is reviewed de novo on appeal. Atwood v. Fort Peck Tribal Court Assiniboine & Sioux Tribes, 513 F.3d 943, 946 (9th Cir. 2008). Standing is a subject matter jurisdictional requirement that can be raised at any time, including on a sua sponte basis. D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008); FED.R.CIV.P. 12(h)(3). Pursuant to Section 501(b) of the Copyright Act, only the legal or beneficial owner of an exclusive right under a

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copyright is entitled to sue for infringement. Silvers, 402 F.3d at 884. Section 106 of the Copyright Act, in turn, defines the exclusive rights that can be held in a copyright (e.g. the right to reproduce, to prepare derivative works, and to distribute copies). Exclusive rights in a copyright may be transferred and owned separatelyfor example, through assignment or an exclusive licensebut no exclusive rights exist other than those listed in Section 106. Silvers, 402 F.3d at 885. While the right to assert an accrued cause of action for copyright infringement cannot be transferred alone, such a right can be transferred along with one or more of the exclusive rights in a copyright. See id. at 890. The district court erred in finding a lack of subject matter jurisdiction because as the assignee-owner of the full right and title in and to the Work, Righthaven has standing to sue for acts of copyright infringement occurring after it acquired ownership of the copyright under the Assignment from Stephens Media. (EOR 25 at 2, Ex. 1; EOR 24 at 2, Ex. 1.) Pursuant to the express terms of the Assignment, Stephens Media also expressly transferred to Righthaven the right to assert accrued causes of action for infringement of the Work, giving Righthaven standing to sue the Defendant for infringement, even though his infringement occurred prior to the Assignment. (Id.) The fact that Stephens Media was

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subsequently granted a license-back to exploit the Work after the transfer of ownership to Righthaven by virtue of the SAAs terms does not, contrary to the district courts reasoning, mean that Righthaven was only granted only a bare right to sue in violation of the requirements set forth in Silvers. (EOR 28 at 8-10.) Adopting the district courts reasoning would essentially find that an assignment of ownership and the more limited grant of a license equate to the same property interests. In additionally, as discussed more fully as an alternative ground for reversal, Stephens Media and Righthaven executed a clarification and amendment to the SAA in order to further clarify and effectuate, to the extent not already accomplished, what has at all times been the intent of the partiesto transfer full ownership in copyright to Righthaven while subsequently granting Stephens Media a non-exclusive license back to exploit any assigned works. (EOR 25 11, Ex. 3; EOR 24 12, Ex. 3.) This Amendment cured any arguable defects in standing that existed under the parties original contractual relationship, but it was considered insufficient to do so by the district court. (EOR 28 at 10.) Therefore, as set forth below, the district court erred in determining that it lacked subject matter jurisdiction.

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1. The District Court Erred in Determining That Lacked Subject Matter Jurisdiction Because Righthaven Has Standing to Sue For Past Infringement Pursuant to The Express Language of The Assignment. Binding precedent establishes that the assignment from Stephens Media to Righthaven conveys upon Righthaven standing to maintain its copyright infringement action against the Defendant. As such, the district court erred in concluding it lacked subject matter jurisdiction over Righthavens Complaint. (EOR 28 at 8-10.) Accordingly, this Court must reverse the district courts subject matter determination upon review. In Silvers, an en banc panel of this Court held that an assignor can transfer the ownership interest in an accrued past infringement, but the assignee has standing to sue only if the interest in the past infringement is expressly included in the assignment and the assignee is also granted ownership of an exclusive right in the copyrighted work. Silvers, 402 F.3d at 889-90. In so holding, the panel in Silvers aligned the law of this Circuit with that of the Second Circuit as set forth in ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991), which recognized the right to sue for past infringement when both the copyright and the accrued claims were purchased. Silvers, 402 F.3d at 889.

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Specifically, the Assignment at issue in this case fully complied with the requirements under the Silvers decision because it transferred all exclusive ownership rights in and to the Work to Righthaven, and expressly included all accrued causes of action for copyright infringement: Assignor hereby transfers, vests and assigns [the Work]to Righthavenall copyrights requisite to have Righthaven recognized as the copyright owner of the Work for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present and future infringements of the copyright in and to the Work. (EOR 25 4, Ex. 1; EOR 24 4, Ex. 1, emphasis added.) At the moment of the Assignment, Righthaven became the owner of the Work with all rights of ownership, including the right to register the Work, license the Work and seek redress for infringement, including past infringement. In other words, the Assignment conferred upon Righthaven the exclusive rights required under the Copyright Act to bring suit for both past and future acts of infringement. Following assignment of ownership to Righthaven, Stephens Media was granted a license to exploit the Work pursuant to the terms of the SAA. Righthaven thereafter sought registration of the Work with the Untied States Copyright Office and brought suit against a blatant infringer.

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Contrary to the district courts decision, nothing in the SAAs provisions alters the unambiguous language of the Assignment or the rights that Righthaven acquired. First, the SAA does not effectuate the assignment of any work. (EOR 25 5, Ex. 2 7.2; EOR 24 5, Ex. 2 7.2.) Rather, the SAA reflects promises made by the parties with regard to future transactions in copyrights. (Id.) The SAA envisions an assignment to Righthaven of all rights, title and interest in and to potential copyrighted works, which includes the right to sue for any past, present or future infringements, coupled with a license back to Stephens Media of the right to exploit any copyrighted works. (Id.) But the SAA itself does not cause an assignment of property rights. The district court, however, erred in concluding the SAA in its original form qualifies the Assignment with restrictions or rights of rights of reversion, such that in the end, Righthaven is not left with ownership of any exclusive rights. (EOR 28 at 8:7-9.) The district court reasoned that the potential exercise of a right of reversion and/or Righthavens obligation to to reassign a specifically assigned work back to Stephen Media supported such a conclusion. As further support for its conclusion, the district court cited Righthavens inability to exploit an assigned work or receive royalties related to any such exploitation by virtue of the exclusive license granted to

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Stephens Media under Section 7.2 of the SAA. (EOR 28 at 8.) The district courts interpretation of the SAA eviscerates the real transactional structure set forth under the SAA, which, together with the Assignment, fully comports with the holding in Silvers. Under the SAA, when an individual assignment is ultimately executed by Stephens Media, Righthaven is assigned all ownership rights, along with the right to sue for past, present and future infringements, associated with the work assigned. (See, e.g., EOR 25 4, Ex. 1; EOR 24 4, Ex. 1.) While Righthaven promises under the SAA to license rights back to Stephens Media to exploit the acquired works, there can be no license until after the assignment of ownership rights and the right to sue for past infringements is conveyed. Section 7.2 of the SAA serves to delineate that Righthaven has no right to exploit an assigned work or participate in associated royalties from any such exploitation after the specific assignment of a work based on the grant of an exclusive license to Stephens Media. (EOR 25 5, Ex. 2 7.2; EOR 24 5, Ex. 2 7.2, emphasis added.) Moreover, limiting Righthavens ability to benefit from another partys exploitation of a work pursuant to the granted of license rights is wholly consistent with that partys right to use and benefit from such use of the licensed work during the license term. Accordingly, the

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district courts reliance on the nature of the license-back of rights to exploit an assigned work to Stephens Media and its reliance on Righthavens inability to monetarily benefit from Stephens Medias exploitive efforts during the term of the license granted to it does not mean that Righthaven has either not been granted ownership of the Work under the Assignment or that it has been only been assigned a bare right to sue. In this regard, the Court is reminded that the standing issue before it concerns the assignment of a past, accrued infringement claim not the ability to sue for present or future infringements of the Work, which may be limited by the exclusive license rights granted to Stephens Media under the original version of the SAA. Likewise, the district courts reliance on the SAAs revisionary rights do not justify the conclusion that Righthaven has either not been granted ownership of the Work under the Assignment or that it has been only been assigned a bare right to sue. As noted by the district court, Section 3.3 of the SAA requires Righthaven to reassign the rights to the Work if it does not pursue an infringement action within 60 days of the Assignment. (EOR 28 at 8:9-11.) A reassignment is a transactional requirement because Righthaven has already been transferred ownership of the Work via the Assignment. Again, this requirement is wholly consistent with

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Righthavens full acquisition of ownership of an assigned work not evidence of the contrary. Nor does the SAAs right of reversion provision have any impact on Righthavens present standing to sue for past infringement, which was also cited as a basis for the district courts conclusion. (EOR 28 at 8.) The right of reversion gives Stephens Media the right to regain the ownership to any assigned work in the future under certain conditions. (EOR 24 5, Ex. 2 8; EOR 25 5, Ex. 2 8.) That future right has no impact on Righthavens current ownership status, its ownership status at the time of the assignment, or its status at the time it filed this action. Indeed, unless and until Stephens Media exercises its right of reversion, that right will have no impact whatsoever. Stephens Media has not exercised that right (Id.), and there is nothing in the record to suggest it will. Accordingly, the district court erred in relying in part on the right of reversion expressed in the SAA as somehow divesting Righthaven of the right to sue for past infringement despite the plain language of the Assignment. The district courts subject matter determination is essentially a finding that the Assignment is meaningless in view of the SAAs more general provisions. By adopting this position in finding that Righthaven lacks standing to maintain suit for past infringement, the district court has

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called into question the viability of countless complex commercial and intellectual property transactions. Principles of contract law are generally applicable in the construction of copyright assignments, licenses and other transfers of rights. Key Maps, Inc. v. Pruitt, 470 F. Supp. 33, 38 (S.D. Tex. 1978). An assignment transfers all rights, title and interest in and to the assigned property. See id.; see also Pressleys Estate v. Russen, 513 F. Supp. 1339, 1350 (D. N. J. 1981) (An assignment passes legal and equitable title to the property . . . .). Axiomatically, when the totality of rights are assigned by one party to another, and the party receiving said assignment then conveys a license of some interest to the same party or to another party, complete title to ownership vests in the assignee prior to being divested through licensure. The district courts decision, however, is completely at odds with this fundamental proposition. While the transactional structure described in the SAA, in which an exclusive license is given back to Stephens Media, may potentially be construed to limit Righthavens ability to bring suit for present and future infringements during the term of the license, it does not limit the companys ability to bring suit for past infringements, which is precisely the opposite result reached by the district court in finding a lack of subject matter jurisdiction. As this Court held in Silvers, the right to sue for past

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infringement requires only an assignment of an ownership interest along with the expressed right to sue for an accrued claim for infringement. Silvers, 402 F.3d at 889-90. As Righthaven was conveyed ownership along with the express right to sue for past infringement under the Assignment as required by this Court in Silvers, the district court erred in finding an absence of subject matter jurisdiction over the companys copyright infringement claim against the Defendant. Accordingly, the district courts subject matter determination must be reversed. 2. The District Court Improperly Construed The Contracts Without Regard to The Parties Intent to Convey All Rights Necessary For Righthaven to Have Standing. In finding that it lacked subject matter jurisdiction over Righthavens copyright action, the district court improperly construed the SAA and the Assignment without regard to the parties intent to convey all rights necessary to for Righthaven to have standing. The district courts failure to construe the SAA and the Assignment in a manner consistent with the parties intent serves to underscore the error of its subject matter determination. Under Nevada law,1 the district court should have interpreted the SAA and the Assignment to find that they convey any and all rights
1 Nevada law governs the SAA. (EOR 25 5, Ex. 15.3; EOR 24 5, Ex. 15.3.) 22

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necessary to establish Righthaven as the true and lawful owner of the copyright to the Work. To the extent any ambiguity exists with respect to whether the Assignment sufficiently conveyed the rights to Righthaven so that it has standing to bring this action, the district court should have looked to parties intent. See Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 488, 117 P.3d 219, 224 (2005) (internal quotation omitted). Moreover, pursuant to the express language of the SAA, if any portion of the SAA is deemed void or unenforceable, the district court was contractually vested with the power to correct any defective provision in order to approximate the manifest intent of the [p]arties. (EOR 24 11, Ex. 2 15.1; EOR 25 10, Ex. 2 15.1.) The record presented to the district court clearly established the parties intended to convey to Righthaven any right necessary for it to bring suit. As set forth in the cited supporting declarations and as reflected in the SAA, the Assignment, and the subsequently executed Amendment discussed below, the parties to the SAA and the Assignment intended to vest copyright ownership of specific works in Righthaven so as to grant it the right to sue for infringement, including past infringement, while still permitting Stephens Media to use the works going forward based on a license of rights to do so from Righthaven. (EOR 25 5-12, Exs. 2-3;

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EOR 24 5-11, Exs. 2-3.) Accordingly, the district court should have construed the SAA and the Assignment in such a way that they conveyed to Righthaven all rights that are necessary to have standing to maintain it copyright infringement action against the Defendant. The district court, however, erred in failing to do so. Specifically, the district court completely failed to address Righthavens insistence that the SAAs terms should be interpreted in a manner to effectuate the parties intent. Likewise, the district court completely failed to address Righthavens insistence that it was expressly empowered by the parties to modify the SAAs terms in order to effectuate their manifest intent when they entered into the agreement. The district courts failure to address these issues as part of its determination that it lacked subject matter jurisdiction over Righthavens copyright infringement action constitutes error that requires reversal upon review by this Court. B. The District Court Erred in Finding it Lacked Subject Matter Jurisdiction Under the Amendment. As stated above, the district court erred in finding an absence of subject matter jurisdiction because Righthaven lacked standing to bring suit pursuant to the Assignment and SAA, which expressly confer (and reflect the intent to confer) full copyright ownership on Righthaven. The district

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court additionally erred in its analysis by finding that it lacked subject matter jurisdiction under the Amendment to the SAA, which further clarified the parties intent as set forth in cited supporting declarations and in the Amendment. (EOR 28 at 10; EOR 24 12, Ex. 3; EOR 25 11, Ex. 3.) In the Amendment, Righthaven and Stephens Media promise to execute individual assignments for certain copyrighted works (as before), but Righthaven promises to grant Stephens media only a non-exclusive license to exploit any assigned works. (Id. Ex. 3 at 1-2.) As a mere holder of the right to use the assigned copyrighted work, Stephens Media would not have standing to sue for infringement. See, e.g., Silvers 402 F.3d at 884-85. Thus, the sole party holding any exclusive rights, and the attendant standing to sue for infringement, would be Righthaven. See id. This agreement reflects the parties intent to transfer full rights in the copyright to Righthaven. (EOR 24 5-12, Ex. 3; EOR 25 5-11, Ex. 3.) Further, the Amendment extinguishes the right of reversion previously held by Stephens Media, and replaces it with a standard option to re-purchase the copyright upon the satisfaction of certain conditions. (EOR 24 Ex. 3 at 2-3; EOR 25 Exs. 3 at 2-3.) The Amendment also contains provisions requiring Stephens Media to pay Righthaven royalties for its use of the Work, making

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Righthaven the beneficial owner in the Work, in addition to its status as legal owner. (EOR 24, Ex. 3 at 2-3; EOR 25, Ex. 3 at 1-2.) Once again, the district relied upon post-assignment reversionary and repurchase rights granted to Stephens Media as justification for its conclusion that the express transfer of ownership along with the right to sue for past, accrued infringement of the Work under the Assignment is illusory. (EOR 28 at 10.) Again, rights of repurchase or other reversionary rights under the Amendment are only effective following the transfer of ownership under a specific assignment. Exercise of such rights would obviously impact Righthavens ability to sue for present or future infringement of an assigned work, but that does not render the express rights granted under the Assignment void ab initio. Accordingly, the district court also erred in also concluding it lacked subject matter jurisdiction under the Amendment. C. The District Court Erred by Substantively Adjudicating The Merits of The Defendants Fair Use Defense After Determining That it Lacked Subject Matter Jurisdiction Over The Dispute. Despite having determined that it lacked subject matter jurisdiction over Righthavens copyright infringement action, the district court nevertheless proceeded to substantively adjudicate the merits of the

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Defendants fair use defense under Section 107 by granting summary judgment in his favor. (EOR 28 at 11-16.) The district court erred as a matter of law in doing so. The law is clear that a court cannot adjudicate the any merits in a dispute upon determining that it lacks subject matter jurisdiction over an action. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999) ([A] federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits.); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) (noting a courts statutory or constitutional power to adjudicate the case must generally be decided before the merits); Wilbur v. Locke, 423 F.3d 1101, 1106 (9th Cir. 2005); Orff v. United States, 358 F.3d 1137, 1149 (9th Cir. 2004) (rulings on the merits vacated as nullities absent subject matter jurisdiction); Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir.1990); Morongo Band of Mission Indians v. California State Bd. of Equalization, 858 F.2d 1376, 1380-81 (9th Cir. 1988) (If jurisdiction is lacking at the outset, the district court has no power to do anything with the case except dismiss . . . .) (internal citations omitted). As recognized by this Court, a judge ordering a dismissal based upon lack of subject matter jurisdiction retains no power to make judgments relating to the merits of the case. Wages, 915 F.2d at 1234

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(quoting Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir.1985)). Consequently, a judge who concludes that subject matter jurisdiction is lacking has no power to rule alternatively on the merits of a case. Id. (citing Cook, 775 F.2d 1035 ("Dismissal based on failure to state a claim requires a judgment on the merits and cannot be decided before the court assumes jurisdiction....")). Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Cone Corp. v. Florida Dept of Transp., 921 F.2d 1190, 1203 n. 42 (11th Cir. 1991). In contravention of the foregoing controlling authority, the district court formally adjudicated the Defendants fair use defense through entry of summary judgment in his favor after determining that it lacked subject matter jurisdiction over Righthavens copyright infringement action. (EOR 28.) The district court erred as a matter of law by taking such action because in finding an absence of subject matter jurisdiction is lacked power to adjudicate the merits of the dispute. Accordingly, the district courts entry of summary judgment in favor of the Defendant on fair use grounds must be reversed if subject matter is found not to exist over Righthavens copyright infringement action.

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D.

Assuming Subject Matter is Found to Exist Upon Review, The District Court Erred in Granting Summary Judgment on Fair Use Grounds in View of The Defendants 100% Unauthorized Replication of The Work.

Righthaven maintains the district court erred as a matter of law by concluding it lacked subject matter jurisdiction over its copyright infringement action. If the Court finds in favor of Righthaven on this issue, then it must consider the propriety of the district courts entry of summary judgment in favor of the Defendant on fair use grounds. (EOR 28 at 11-16.) Righthaven asserts the district court erred in finding the Defendants alleged infringement qualified for fair use protection given his 100% unauthorized replication of the Work. Substantively, when a copyright defendant asserts the affirmative defense of fair use, the district court must consider the following factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; and (4) the effect of the use upon the potential market for the work or the value of the work. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (internal quotation marks omitted); see also 17 U.S.C. 107. The fair use doctrine requires a case-by-case analysis. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). Courts are

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required to consider and weigh all four factors when conducting a fair use analysis. Campbell, 510 U.S. at 577. Conducting such an analysis as a matter of law requires that controlling facts be presumed or admitted. See Fisher v. Dees, 794 F.2d 432, 435-36 (9th Cir. 1986); accord Burnett v. Twentieth Century Fox Film Corp., 491 F.Supp.2d 962, 967 (C.D. Cal. 2007). Here, the district court improperly entered summary judgment in favor of the Defendant on fair use grounds as a matter of law despite circumstances involving the 100% unauthorized replication and display of the Work at issue. Given these circumstances, and in view of this Courts decisional law, the district court erred in its entry of summary judgment on fair use grounds, which is subject to a de novo review by this Court on appeal. See Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir. 2009). 1. The District Court Erred in Its Purpose And Character of The Use Analysis. Turning first to the purpose and character of the use portion of its analysis, the district court summarily concluded that the Defendants wholesale, 100% unauthorized replication of the Work on an Internet website forum constituted noncommercial use. (EOR 28 at 13-14.) In employing this reasoning, the district court failed to recognize several

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aspects of this Court decision in Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1115-16 (9th Cir. 2000) (Worldwide Church of God) that demonstrate the error in concluding, as a matter of law on summary judgment, that the Defendants wholesale unauthorized duplication efforts entitled him to a finding of fair use at the inception the case. As emphasized by this Court in Worldwide Church of God, which rejected, as a matter of law, a fair use defense for the 100% unauthorized replication and use of an authors copyrighted work: We have found no published case holding that fair use protected the verbatim copying, without criticism, of a written work in its entirety. Worldwide Church of God, 27 F.3d at 1120. This case is no different. To begin with, the district courts purpose and character of the use analysis failed to recognize that the Defendants cyberspace Xerox unauthorized duplication efforts did nothing to add a further purpose or different character to the Work. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001). Rather, as this Court has found, such wholesale replication of a work weighs against fair use because copying . . . in its entirety bespeaks of no intellectual labor and judgment. Worldwide Church of God, 227 F.3d at 1117 (internal citation omitted). The district courts decision, however, apparently accords the Defendants

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cyberspace unauthorized cut-and-paste efforts transformative elements to which it is simply not entitled under the decisional law of this Court. This point is underscored by the district courts own characterization of the Defendants unauthorized duplication efforts as being done to foster discussion . . . regarding recent budget shortfalls facing state governments. (EOR 28 at 1-2.) This, however, is exactly the same purpose for which the Work was authored as an editorial piece and originally published in the Las Vegas-Review Journal to inform and foster discussion about the given topic. Moreover, the district courts reasoning failing to acknowledge that the Defendant could have certainly fostered discussion about the topic or the Work without replicating it wholesale on an Internet website. For instance, the Defendant could have shared a link to the Work that would have allowed viewers to read its contents on the source publication or he could have summarized the article in his own words. He failed to take either of these fairly simple steps for achieving his alleged purpose of fostering discussion on the topic addressed by the Work. In doing so, he has merely replaced the object of the Work appearing in the source publication by making it available for free for the public to view. See A&M Records,

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Inc., 239 F.3d at 1014. These reasons alone demonstrate error in the district courts fair use analysis. The district courts purpose and character of the use analysis is equally flawed in its reliance on the alleged noncommercial aspect of the Defendants infringing conduct. In sum, the district court concluded that the Defendant did not and could not profit from posting the Work. (EOR 28 at 13:24-25.) This conclusion erroneously equates commercial use with monetary gain, which is not the germane inquiry under a purpose and character of the use analysis. Rather, as this Court has reasoned, [t]he crux of the profit/nonprofit distinction [under a fair use analysis] is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. Worldwide Church of God, 227 F.3d at 1117 (quoting Haper & Row Publishers, Inc. v. Nation Enter., 471 U.S.539, 562 (1985)); accord A&M Records, Inc., 239 F.3d at 1014 ([d]irect economic benefit is not required to demonstrate a commercial use.). In fact, reputational benefits conferred as a result of displaying unauthorized content may constitute a form of commercial use or profit under a fair use analysis. Worldwide Church of God, 227 F.3d at 1117-18.

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Here, the district courts analysis under the first fair use analysis factor completely failed to appreciate that the Defendant may have profited by receiving reputational benefits in the online community in which he disseminated the unauthorized version of the Work. As noted earlier, the Defendant actively participates as a content contributor on the Website where the infringing copy of the Work was posted. (EOR 1 at # 1.) In fact, as of the filing of the Complaint, it was alleged that the Defendant had contributed approximately 18,000 total posts to the Website. (Id.) These circumstances certainly support an inference that the Defendant is looked upon by other users and visitors of the Website as an important content contributor, which would also support a finding that he enjoys a reputational benefit from such conduct whether his content contributions are done with or without authorization to do so. Once again, the district courts analysis erred by failing to correctly apply a correct commercial standard in view of the facts presented when determining that the purpose and character of the use factor weighed in favor of a fair use finding.

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2. The District Court Erred in Its Nature of The Copyrighted Work Analysis. The district courts fair use analysis additionally erred in its examination of the nature of the copyrighted work in determining the Defendants 100% unauthorized duplication of the Work justified entry of summary judgment in his favor under Section 107. The district court erred in its analysis by diminishing the creative aspects of the Work while giving little weight to this fair use factor, which should have weighed against a finding of fair use. (EOR 28 at 14-15.) Specifically, while the district court readily acknowledged the Work was an editorial literary piece, it parsed through the contents as a means of weighing how much of the Work was informative and how much of it qualified as creative. (Id. at 14:18-24.) To begin with, such a qualitative evaluation of the contents of a copyrighted work at issue in an infringement action does not amount to a controlling assumed or admitted fact amenable to adjudication through summary judgment, but rather should be an undertaking reserved for the trier of fact. See Fisher, 794 F.2d at 435-36; accord Burnett, 491 F.Supp.2d at 967. Second, the district court summarily concluded, despite its conclusion that the Work included both creative and informational content, the Work did not fall within the core of intended copyright protection.
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(EOR 28 at 14:24-25, citation omitted.) The district court erred in this conclusion as the [c]reation of a nonfiction work, even a compilation of pure fact, entails originality. Harper & Row Publishers, Inc., 471 U.S. at 547. The district courts reasoning is also at odds with this Courts prior finding that a copyright defendants reliance on the second fair use factor may be diminished if the defendant made a verbatim copy of the protected work in its entirety. Supermarket of Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1409 (9th Cir. 1986); see also Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983) (Even if it were true that plaintiffs book contained only facts, this argument fails because defendant engaged in virtually verbatim copying.). Furthermore, the district court equally erred by determining this factor is not terribly relevant in the overall fair use balancing, and the lessor creative element of the Work lessens the impact further. (EOR 28 at 15:1-3.) In sum, the district courts nature and character of the copyrighted work analysis was fundamentally flawed in several respects. First, it engaged in a literal parsing of fact versus creative content contained in the Work, which should be performed by the trier of fact. Second, the district court failed to accord the Work with the degree of copyright protection entitled to it under existing case law based on its flawed conclusion that the

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Work contained sufficient informational aspects. Finally, the district courts analysis erred in concluding the second fair use factor was not terribly relevant given the nature of the Work at issue. 3. The District Court Erred in Its Analysis of the Amount of The Copyrighted Work Used. The district court next erred in its analysis of the amount of the copyrighted work used in its decision to grant the Defendants motion for summary judgment. (EOR 28 at 15.) Surprisingly, faced with the Defendants 100% unauthorized duplication and dissemination of the Work on the Website, the district court determined [t]he three other factors need to be balanced to determine if fair use is appropriate. (EOR at 15:18-19.) Through its analysis of the third factor, the district court simply and improperly refused to acknowledge that the wholesale copying of a copyrighted work does not support a finding of fair use. For instance, this Court has observed, with regard to the amount and substantiality third fair use factor, [w]hile wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use. Worldwide Church of God, 227 F.3d at 1117 (quoting Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir. 1986)); accord Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757 (9th Cir. 1978) (acknowledging

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that near-verbatim copying generally precludes a finding of fair use). Thus, despite this factor unquestionably weighing against a finding of fair use, the district court instead elected to balance the three other fair use factors in its analysis. (EOR 28 at 15.) The district court erred in employing this approach. Righthaven was entitled to a finding that this analysis factor weighed against the Defendants fair use claim given his 100% unauthorized duplication of the Work. The district courts failure to acknowledge this necessary conclusion underscores the error of its overall fair use analysis. 4. The District Court Erred in Its Effect Upon The Potential Market For The Work Analysis. Finally, the district court erred in its analysis of the effect upon the potential market for the Work under the fourth fair use factor. (EOR 28 at 15-16.) The district courts analysis of this factor is based on a culmination of several other errors contained in its fair use analysis. To begin with, the district courts market effect analysis is predicated on the flawed premise that it was undisputed the Defendants use of the Work [was] noncommercial. (Id. at 16:2.) As argued above, Righthaven maintains the district court reached this conclusion based on an erroneous analysis under the first fair use factor. Thus, the district court was not presented with undisputed facts of noncommercial use by the Defendant
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under a proper analysis of the nature and character of use. In fact, under a proper analysis of the first fair use factor, Righthaven may have been entitled to a presumption of market harm under the fourth analysis factor. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984). Likewise, while the district court determined that Righthaven had failed to present a genuine issue of material fact that the Defendants use was harmful to the market, it was unquestionably argued that the Defendants wholesale duplication merely replaced the object of the Work appearing in the source publication by making it available for free for the public to view. See A&M Records, Inc., 239 F.3d at 1014. In fact, Righthaven strenuously argued that the Defendants unauthorized republication of the Work, which was entirely lacking in even a scintilla of transformational content or qualities, warranted the finding that his infringing conduct has likely caused a substantial impairment on the potential market for the Work and/or that the Defendants display of the infringing copy fulfilled the demand for the original. See Campbell, 510 U.S. at 587-88; Sony Computer Entmt, Inc. v. Connectix Corp., 203 F.3d 596, 607 (9th Cir. 2000). While the district court rejected this argument because Righthaven had failed to introduce supporting evidence, the case

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was at its inception and neither party had conducted any discovery in the case. Moreover, the district court rejected Righthavens request to conduct discovery as being insufficient in its decision. (EOR 28 at 11-12.) In sum, the district courts fourth fair use analysis factor failed to effectively consider the Defendants wholesale misappropriation of the Work and the commensurate impact of on the market as a result of such conduct. Instead, the district court refused to acknowledge case law cited by Righthaven in support of its arguments based on the absence of supporting evidence. In doing so, the district court applied a form over substance analysis to the facts before it in a case that was at its inception where absolutely no discovery had been conducted. The district court compounded this error by refusing Righthavens request to conduct discovery. Accordingly, as with its analysis of the other three fair use factors, the district court erred in its analysis of the fourth fair use factor. Reversal of its decision to enter summary judgment in favor of the Defendant on fair use grounds is required as a result. V. CONCLUSION In sum, the district court erred in finding that Righthaven was not conferred standing to maintain this action for the accrued copyright infringement claim against the Defendant based on the Assignment, which

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included the transfer of ownership along with the right to seek redress for past infringement, as required by this Courts decision in Silvers. The district court further erred in finding a lack of subject matter jurisdiction under the Amendment to the SAA. Given the district courts determination that subject matter jurisdiction was absent, it also erred by thereafter substantively adjudicating the merits of this dispute by granting the Defendants motion for summary judgment on fair use grounds under Section 107. Simply put, once the district court found that it lacked subject matter jurisdiction over this dispute, it did not have authority to then proceed to a merits-based adjudication of the copyright infringement claim before it. Finally, assuming the Court agrees with Righthaven that the district court erred in its subject matter jurisdiction determination, it next must conclude that error was committed by entry of summary judgment in favor of the Defendant on fair use grounds. Simply put, the district court failed to properly apply the law of this Court in granting such relief given the Defendants 100% unauthorized replication of the Work at issue. Based on the foregoing, Righthaven respectfully requests the Court reverse the district courts subject matter jurisdiction determination and

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further reverse the district courts entry of summary judgment on fair use grounds. Dated this 28th day of November, 2011. SHAWN A. MANGANO, LTD. By: /s/ Shawn A. Mangano SHAWN A. MANGANO, ESQ. Nevada Bar No. 6730 shawn@manganolaw.com 8367 West Flamingo Road, Suite 100 Las Vegas, Nevada 89147 Attorney for Appellant Righthaven LLC

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STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6, Righthaven identifies the following related cases pending in this Court that raise the same or closely related issues or involve the same transaction or event: 1. Righthaven LLC v. Hoehn, Case No. 11-16995: This is a companion appeal challenging the district courts award of attorneys fees and costs following its determination that it lacked subject matter jurisdiction. Righthaven LLC v. DiBiase, Case No. 11-16776: This case involves the alleged infringement of a copyrighted work assigned by Stephens Media, LLC, which was dismissed by the district court for lack of subject matter jurisdiction. Righthaven LLC v. Center for Intercultural Organizing, Case No. 11-16358: This case involves the alleged infringement of a copyrighted work assigned by Stephens Media, LLC, which was dismissed by the district court on fair use grounds. Righthaven LLC v. Newman, Case No. 11-17690: This case involves the alleged infringement of a copyrighted work assigned by Stephens Media, LLC, which was dismissed by the district court for lack of subject matter jurisdiction. Righthaven LLC v. Democratic Underground, LLC, Case No. 1117210: This case involves the alleged infringement of a copyrighted work assigned by Stephens Media, LLC. This appeal involves the district courts denial of leave to intervene as a matter of right following dismissal of Righthavens complaint for lack of subject matter jurisdiction.

2.

3.

4.

5.

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6.

Righthaven LLC v. Realty One Group, Inc., Case No. 11-15714: This case involves the alleged infringement of a copyrighted work assigned by Stephens Media, LLC in which the district court dismissed Righthavens compliant on fair use grounds.

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B) because: X this brief contains 8,902 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or __ this brief uses a monospaced typeface and contains ___ lines of

text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(6) because: X this brief has been prepared in a proportionately spaced

typeface using Microsoft Word in 14 point font size and Times New Roman style, or __ this brief has been prepared in a monospaced spaced typeface

using ___________ with __________. DATED this 22nd day of November, 2011. SHAWN A. MANGANO, LTD. By: /s/ Shawn A. Mangano SHAWN A. MANGANO, ESQ. 8367 West Flamingo Road, #100 Las Vegas, Nevada 89147 Attorney for Appellant Righthaven LLC
45