First Defendant to Win Dismissal: Michael Nelson, Real Estate Agent

Righthaven Defendant Wins First Lawsuit Dismissal Motion

The "housing sale odds" story that Righthaven obtained a copyright for and sued over consisted of 30 sentences, but Nelson reproduced "only" the first eight sentences, Hicks wrote in his ruling that was filed Tuesday.
"The court finds that this use weighs in favor of a fair use of the copyrighted material," Hicks wrote in his ruling, citing case law stating "copying only as much as necessary in a greater work (story) to provide relevant factual information weighs in favor of fair use."
As to whether the online posting affected the potential market for the Review-Journal story, Hicks wrote: "Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article...

See: Article in full | View: Dismissal ruling

The Bureau of National Affairs (BNA), who recently published an article critical of Righthaven's practices, is also noted in the article.

Defense: Field & Stream Fires Back (Kudos to Field & Stream!)

Sharron Angle Signals Interest in Settling Copyright Lawsuit
Attorneys for Field & Stream (Bonnier Corporation):

• "The plaintiff's purported assignor (Review-Journal owner Stephens Media LLC) granted an implied license to copy and share the work (story) by posting the work on its website and by providing tools for electronically sharing the work."
• "The posting of the work by Clay Cooper was fair use. The work was attributed to the author and publisher."
• "The plaintiff's claim is barred by its unclean hands, in that the plaintiff is engaged in barratry."
• "The plaintiff's claim is barred by its unclean hands, because the alleged infringement, if any, resulted from the plaintiff's purported assignor's use and promotion of electronic tools for copying and sharing the work."
• "The plaintiff's claim is barred by copyright misuse."

See: Article in full

Bonnier is represented by Michael Crosbie of Shutts & Bowen LLP and Byrne of Snell & Wilmer.

Jonathan Fountain of Lewis and Roca LLP Explains Defenses in Recent Article

Jonathan Fountain is one of at least four Lewis and Roca attorneys in Las Vegas that have represented Righthaven defendants in litigation and settlements. Fountain recently wrote an opinion article that was published in Lexology.com, Las Vegas startup sues websites: copyright trolls and the rise of the internet police (registration required). Fountain discusses a variety of defenses, including: subject matter jurisdiction, personal jurisdiction, fair use, implied license the de minimis doctrine, champerty and barratry.

Some defendants have suggested the existence of an implied license because the Review-Journal posts its news stories on its webpage where they can be viewed for free, displays links that allow persons who view its articles to save, email, or print the articles, and also allows visitors to its site who view its articles to right-click and copy the articles when technical measures are available to prevent the articles from being copied. These defendants have also pointed out that the Review Journal does not post any terms or conditions on its website stating that copying articles is forbidden.

See: Article in full
See: Related Las Vegas Sun article

Defense: Estoppel, Acquiescence, Copyright Misuse, Unclean Hands, Barratry, Champerty

Defendant Accuses Righthaven of Misusing Legal System
As reported by Steve Green of the Las Vegas Sun on Sunday, a corporation being sued by Righthaven "came out swinging." The case involves California-based Internet Brands Inc. with just over 37 million cash on hand and the ownership of about 100 website brands. In answering to the suit, Internet Brands said Righthaven's claims are "barred based on the doctrine of fair use and that an 'implied license' was provided by the Review-Journal for the use of its material." Internet Brands also said Righthaven's claims are barred based on the following legal arguments:

[Please read the Las Vegas Sun article in full to better understand the below legal arguments, which I've pulled from legal definition websites.]

• Estoppel: (dictionarylaw.com) "A bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act or judgment against the person in..."
• Acquiescence: (wikipedia) "A legal term used to describe an act of a person in knowingly standing by without raising any objection to infringement of his rights, when someone else is unknowingly and honestly putting in his resources under the impression that the said rights actually belong to him..."
• Copyright Misuse: (encyclopedia.thefreedictionary.com) "An equitable defense against copyright infringement in the United States based on the unreasonable conduct of the copyright owner. The doctrine forbids the copyright owner from attempting to secure an exclusive right or limited..."
• Unclean Hands: (dictionary.law.com) "A legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff..."
• Barratry: (dictionary.law.com) "Creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter. Barratry is illegal in all states and subject to criminal punishment and/or discipline by the state bar, but there must be a showing that..."
• Champerty: (dictionary.law.com) "An agreement between the party suing in a lawsuit (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery (money won and paid). In common law this was illegal on the theory..."
  

Defense: The Doctrine of Unclean Hands

Settlement is Reached in Two Cases
The Las Vegas Sun reports today that at least two victims of Righthaven LLC copyright lawsuits have filed responses asking the court to dismiss the lawsuits. Both victims cite the "the doctrine of unclean hands" as well.

Salzano also complained about Righthaven's legal tactics.
"Plaintiff brings these claims with unclean hands, which mandates dismissal of this action," Salzano wrote in court papers.
"The actions of plaintiff Righthaven in pursuing the instant action for copyright infringement smack of barratry," he wrote.
"Barratry" is defined by one dictionary as "the persistent incitement of litigation."

Attorney Sergio Salzano is representing Las Vegas real estate agent Michael J. Nelson.