Righthaven Copyright Infringement Cases Put on Hold in Colorado

Last week, all pending copyright infringement lawsuits in Colorado involving copyright troll Righthaven, LLC were placed on hold by Colorado District Court Judge John Kane. Righthaven, LLC is a Nevada-based firm working principally on behalf of the Denver Post and Stephens Media, parent company of the Las Vegas Review Journal. Also last week, Buzzfeed, a New York City based web content aggregator and Righthaven target initiated a class action suit in Colorado on behalf of all Righthaven defendants facing suit in Colorado. The Buzzfeed class action lawsuit was filed by the Denver office of Brownstein Hyatt Farber & Schreck.

Righthaven’s very business model is under assault. As a copyright troll, Righthaven’s model is premised upon a very, very aggressive copyright enforcement strategy. Generally, when a copyright owner believes that a party has reproduced the copyright-protected work on a website, the copyright-owner will send a cease & desist or take-down request to the alleged infringer prior to filing a lawsuit. The copyright owner might also investigate whether the alleged infringer’s use may fall into an exception to infringement, such as fair use. Righthaven, however, dispenses with take-down notices, and instead commences litigation in order to compel a quick settlement. To date, Righthaven has filed in excess of 200 cases in Nevada and over 50 in Colorado.

Righthaven’s requests for damages are equally aggressive. In several cases, Righthaven has sought not only the maximum civil penalty allowed under the Copyright Act ($150,000 per work), but also a demand for the defendant to relinquish their website domain – a remedy not provided for in the Copyright Act. Righthaven splits any award or settlement with Stephens Media.

The interesting thing about Righthaven is that it does not actually own or commercialize any of the copyrighted works upon which it sues. Righthaven locates alleged infringements of copyright-protected works owned by its clients, and obtains a license from the copyright owner for the limited purpose off filing a lawsuit against the infringer.
In Righthaven v. Democratic Underground, a Nevada case, Chief U.S. District Judge for Nevada, Roger Hunt released the Strategic Alliance Agreement that had governed the relationship between Righthaven and Stephens Media, the parent company of the Las Vegas Review Journal. The defendant in the Democratic Underground case was represented by the Electronic Frontier Foundation, Fenwick & West, LLP, and attorney Chad Bowers. Though the Agreement between Righthaven and Stephens Media has been reportedly modified, the terms of the Strategic Alliance Agreement has proved to be a boon to defendants, who question Righthaven’s standing to bring suit based on the limitations of its relationship with Stephens Media’s copyrights.
The release of the Strategic Alliance Agreement and the resulting questions of Righthaven’s standing at least contributed to the decision of the Honorable John Kane to place a hold on all of the Righthaven’s copyright suits in Colorado federal district court. Judge Kane is charged with hearing all Righthaven initiated suits in Colorado’s federal court.
There remain two questions to be answered with regards to whether Righthaven’s current model will survive. First, does the Strategic Alliance Agreement grant Righthaven standing to file lawsuits on behalf of Stephens Media and the Denver Post? Second, if Righthaven lacks standing, can it modify its relationships with Stephens Media and the Denver Post in order to provide it with the necessary authority to bring copyright infringement suits, while at the same time making economic sense for those involved?