May 9, 2013 | By Kurt Opsahl

9th Circuit: No Relief for Copyright Troll Righthaven

The Ninth Circuit appeals court today turned down copyright troll Righthaven’s last ditch effort to salvage its failed business model, upholding the federal district court’s decision to dismiss its bogus copyright case on the grounds that it never actually held the copyrights it was suing under.

In one of the two cases decided together, EFF represents Tad DiBiase, a criminal justice blogger who provides resources for difficult-to-prosecute "no body" murder cases. Righthaven sued DiBiase in 2010 based on a news article that DiBiase posted to his blog. Instead of paying them off, DiBiase fought back with the help of EFF and its co-counsel at Wilson, Sonsini, Goodrich and Rosati, and helped drive Righthaven out of business.

The leading issue on appeal was whether a newspaper could transfer the right to sue for copyright infringement to a copyright troll, while retaining all other rights in the newspaper articles. (audio of argument) Under the Copyright Act, only the "owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it." 

Righthaven attempted to get around this rule by drafting a document that pretended to transfer copyrights even as a secret agreement between Righthaven and Stephens Media, the newspaper publisher, ensured that Stephens retained all of the rights to exploit the news articles. As the Ninth Circuit noted, citing a story about Abraham Lincoln: “we conclude that merely calling someone a copyright owner does not make it so.” 

Nor was the Ninth Circuit impressed by Righthaven’s argument that the court should implement its intent, even if the contract drafting was not up to snuff.  “The problem is not that the district court did not read the contract in accordance with the parties’ intent; the problem is that what the parties intended was invalid under the Copyright Act.” Finally, the Court rejected a desperate attempt by Righthaven to retroactively revise their contract after it started to lose in the courts.

With that, the court affirmed the lower court decisions tossing Righthaven’s cases.  Since it had found that the Righthaven had no legal standing, it also vacated the decision in the companion case, Righthaven v. Hoehn, that had found fair use as an alternative grounds on which Righthaven lost. 

The troll problem continues to persist, especially porn trolls, but today’s decision effectively ends one pernicious species by establishing that copyright owners cannot sell the right to sue to attorneys looking to make a quick buck off the back of bloggers, while otherwise doing business as usual.  

In the appeal, Righthaven was represented by a new attorney, Erik Syverson of Miller Barondess. Righthaven's CEO and founder, Steven A. Gibson is now an attorney with Dickinson Wright. EFF, Colleen Bal and Evan Stern from the law firm of Wilson Sonsini Goodrich & Rosati, and Las Vegas attorney Chad Bowers represent Mr. DiBiase. The appeal was consolidated with Righthaven v. Hoehn. Mr. Hoehn is represented by Marc Randazza and Jay DeVoy of the Randazza Legal Group.


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