In a ruling issued Thursday, U.S. District Court Judge John Kane said there were "serious questions" about whether Righthaven has the right to sue for infringement of material that originated with The Denver Post. Until he resolves those questions, he wrote, the "most prudent" course is to stay all pending matters. Kane is presiding over all Righthaven cases in Colorado.
Since launching last year, Righthaven has sued around 300 bloggers, nonprofits, political groups, small publishers and other sites for allegedly infringing copyright. Almost all of the cases have concerned either articles from the Las Vegas Review-Journal, owned by Stephens Media, or a photo of an airport patdown that originally appeared in The Denver Post. In Colorado alone, Righthaven has filed 57 cases, 22 of which appear to have settled; most of the company's other cases have been filed in federal court in Nevada.
Righthaven routinely asks for up to $150,000 in damages -- the statutory maximum. But the only two settlements that have so far been made public were for less than $6,000.
Two judges so far have dismissed Righthaven lawsuits on fair-use grounds. Righthaven has also backed down in several of its most questionable cases -- including one against 20-year-old blogger Brian Hill, who suffers from autism and a severe form of diabetes.
But the biggest hurdle for Righthaven seems to stem from its contract with Stephens Media -- which was recently unsealed at the request of the Electronic Frontier Foundation. That agreement (presumably similar to the one covering Denver Post material) gives Righthaven the right to sue, but none of the other rights typically associated with copyright ownership. Without those rights -- including the ability to license material -- it's debatable whether Righthaven can claim that it was injured as a result of alleged infringement. The reason that's a problem for Righthaven is that companies typically can't get into federal court at all unless they can first show an injury.
Kane has already indicated he doesn't think much of Righthaven's tactics. He publicly criticized the company in the Hill case for its business model which, Kane said, "relies in large part upon reaching settlement agreements with a minimal investment of time and effort." Kane continued as follows: "Plaintiff's wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from defendants cowed by the potential costs of litigation and liability."
Of course, Kane's remarks don't mean that he thinks that Righthaven lacks the right to sue at all. But they at least indicate that Righthaven hasn't made particularly persuasive legal arguments in the past.