9th Circuit Concludes Righthaven Isn't Right: No Standing to Press Copyright Claims

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In its 15-page opinion in Righthaven LLC v. Hoehn (Case No. 11-16751), the United States Court of Appeals for the Ninth Circuit last week affirmed a district court ruling that a litigious copyright holding company lacked the substantive exclusive right of ownership to pursue infringement claims against various online sites.

The eloquent decision written by Justice Richard Clifton began: "Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so...Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln's wisdom, and the requirements of the Copyright Act, we conclude that merely callling someone a copyright owner does not make it so." 

Righthaven LLC, founded in 2010 and derided by First Amendment advocates as a copyright troll, has fallen on hard times, selling its domain name at auction in 2012 to help satisfy its debts. Its brief meteoric ascension came from partnering with newspapers to pursue infringement claims against online sites that reproduced content from the dailies without permission.

At issue in the case was an inarticulately drafted assignment agreement between Righthaven and  the actual copyright holder purportedly giving to Righthaven the rights "requisite to have Righthaven recognized as the copyright owner of the [articles] for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present and future infringements of the copyright...in and to the [articles]."

But the Ninth Circuit decision said Righthaven lacked standing to pursue copyright infringement suits and cited a separate agreement between the actual copyright holder and Righthaven that imposed restrictions on what the company could do regarding the assigned copyright, thereby derailing the exclusive right of ownership mandated by the Copyright Act to allow a party to pursue infringement claims.

Judge Clifton's decision awarded costs to the defendant against Righthaven.