April 18, 2011 | By corynne mcsherry

More Bad News for Righthaven: Domain Name Claim Dismissed in DiBiase Case

Nevada federal judge Roger Hunt was busy last week. In addition to his widely reported decision in Righthaven v. Democratic Underground to unseal Righthaven LLC’s business agreement with publisher Stephen Media – an agreement that shows Righthaven's claim of copyright ownership is a sham – Judge Hunt also granted Tad DiBiase’s motion to dismiss Righthaven’s request to seize his domain name. As the judge noted, there simply is no legal basis for Righthaven’s threat to seize domain names as a remedy for copyright infringment.

While this latter ruling was overshadowed by the unsealing of the Strategic Alliance Agreement, it represents a crucial precedent for other Righthaven victims. Righthaven always requests this relief in its complaints, and then uses the demand as leverage in settlement negotiations. As Righthaven CEO Steve Gibson said last year, the company sees the domain name threat as “something available to deter infringements.” Websites that have built up strong name recognition are highly reluctant to put that domain at risk.

Yet, as we explained in our motion to dismiss, the threat is utterly improper. The country’s most popular online destinations, like the New York Times, Amazon and Yahoo!, have faced copyright infringement allegations based on their ordinary operations. But no one would imagine that a plaintiff alleging copyright infringement against those companies would be entitled to domain-name transfer as a copyright remedy if infringement was established. Consider the Drudge Report, one of many sites that Righthaven sued. Its domain name is estimated to be worth well into the millions of dollars. Transfer would confer a lottery- sized jackpot on the plaintiff and cause catastrophic harm to the defendant – a result that Congress did not and could not have intended when it crafted the copyright damages scheme. Moreover, seizing an entire website based on a tiny portion of content, even if that content were infringing, necessarily violates the First Amendment.

Hopefully other Righthaven targets will take heed of this ruling, and refuse to be intimidated by this preposterous claim.

In the same order, Judge Hunt denied Righthaven’s motion to dismiss our counterclaim seeking a declaration that Mr. DiBiase is protected by the fair use doctrine. The court recognized that a declaration can provide guidance for Mr. DiBiase and others.

Finally, the court denied our motion for attorneys’ fees as premature, but noted the arguments had merit. We’re confident that Mr. DiBiase will eventually succeed on this point as well.


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