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					   Case: 11-16995   10/16/2011   ID: 7929422    DktEntry: 7   Page: 1 of 21



            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE NINTH CIRCUIT


                           CASE NO. 11-16995


                           RIGHTHAVEN LLC,
                               Appellant,

                                     v.

                            WAYNE HOEHN,
                              Appellee.


  RESPONSE TO URGENT MOTION UNDER CIRCUIT RULE 27-3(b)

  APPELLEE’S RESPONSE TO APPELLANT RIGHTHAVEN LLC’S
  URGENT MOTION FOR STAY OF JUDGMENT PENDING APPEAL
PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 8(a)(2)

   Appeal from the United States District Court for the District of Nevada
                  Case Number 2:11-cv-00050-PMP-RJJ

                      RANDAZZA LEGAL GROUP

                            Marc J. Randazza
                            mjr@randazza.com
     J. Malcolm DeVoy IV                        Jason A. Fischer
      jmd@randazza.com                         jaf@randazza.com
                 6525 W. Warm Springs Road, Suite 100
                         Las Vegas, NV 89118
                       Telephone: 888-667-1113
                       Facsimile: 305-437-7662
                            Randazza.com

                    Attorneys for Appellee, Wayne Hoehn
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                                                                                                                                                                                                                                   INTRODUCTION

                                                      In Herman Melville’s classic, Bartleby the Scrivener, an attorney finds

frustration with his scrivener, Bartleby. Any time Bartleby is directed to perform a

task, he replies with the classic refrain:                                                                                                                                                                                                       “I would prefer not to.” 1 Initially

infuriated, but beguiled by Bartleby’s charmingly passive insolence, the narrator

tolerates Bartleby’s masterfully eccentric defiance, but eventually fires him. Once

fired, Bartleby’s behavior becomes stranger, and he refuses to leave the premises

of his employer, who finds Bartleby’s stubbornness to be an immoveable object.

Bartleby’s defiance, as effective as it is, eventually leads to his undoing.

Bartleby’s preference leads to his imprisonment and starvation, as he finally

encounters both men and forces of nature who are unmoved by his antics.

                                                      This Court is now confronted with the corporate Bartleby. Righthaven LLC

began its litigation campaign with a roar – filing hundreds of lawsuits against

defendants who acted lawfully like Mr. Hoehn, engaging in fair use. See 17

U.S.C. § 107. Every court that examined Righthaven’s scheme rejected it. When

asked, courts grant Righthaven defendants their attorneys’ fees. When faced with

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
1
 The first of many such exchanges continued thus:
      “Prefer not to,” echoed I, rising in high excitement, and crossing the room
      with a stride. “What do you mean? Are you moon-struck? I want you to
      help me compare this sheet here – take it,” and I thrust it towards him.
      “I would prefer not to,” said he.
Herman Melville, Bartleby, the Scrivener: A Story of Wall Street 10 (Dover 1990)
(1853).

	
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the prospect of payment, Righthaven figuratively responds, “I would prefer not

to.”2 Now, instead of “I would prefer not to,” Righthaven attempts to couch the

present dispute as an emergency – that it should not be forced to post a bond for

$34,045.50, which is a chore as common to an appellant as reviewing transcribed

documents was to a scrivener in days past.

                                                      This Court should deny Righthaven’s urgent motion for a stay of judgment.

Righthaven most certainly could post the required bond, if it chose to do so.

However, much like Bartleby, Righthaven would simply prefer not to. Righthaven

engages in a calculated sleight of hand, seeking to avoid making an overt material

misrepresentation to the Court – but attempts to mislead it nonetheless.

Righthaven does not state that it lacks the funds, but rather claims it cannot

“allocate” funds to post the required bond. The message is clear – “I would prefer

not to.”

                                                      Unlike Bartleby, whose defiance is honest, Righthaven’s defiance is not.

Righthaven tries to create the false illusion of insolvency. Righthaven’s charade

should be rejected. Unfortunately, this is but one more unsurprising chapter in the

saga of Righthaven’s history. District of Nevada District Court Judge Roger Hunt

has described Righthaven’s conduct as constituting “multiple inaccurate and likely
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
2
  In one case, Righthaven did make a payment, but only on the eve of a Motion for
Preliminary Injunction hearing, which it was certain to lose. Righthaven
reluctantly issued a check for $3,815 to avoid the hearing. Righthaven LLC v.
Leon et al., Case No. 2:10-cv-01672 (D. Nev.).

	
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dishonest                                                                                             statements                                                                                                      to           the   Court,”      including   at   least   one   “flagrant

misrepresentation,” the advancement of arguments that are “disingenuous, if not

outright deceitful.” Righthaven v. Democratic Underground LLC (“DU”), Case

No. 2:10-cv-01356 (Doc. # 116), 2011 WL 2378186, 2011 U.S. Dist. LEXIS

95073 (D. Nev. June 14, 2011).3

                                                      The time has come for Righthaven’s shenanigans to end. Righthaven picked

this fight. Righthaven, created and operated by an attorney, should have known

better. Righthaven could have changed course at any time. Righthaven preferred

not to. The consequence for Righthaven’s actions is now at its door, and whether it

would prefer to or not, the law requires it to comply. Preferring not to comply with

a lawfully issued court order is no emergency, and Righthaven should be

compelled to answer for its transgressions. Even Bartleby, charming as he was,

eventually suffered the inevitable consequences of his irrational intransigence.

Righthaven must as well.

//

//

//



	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
3
  Judge Hunt sanctioned Righthaven $5,000 for its misconduct, and Righthaven
requested an extension of time to comply with the sanction – after the sanctions
were due. DU, Case No. 2:10-cv-01356 (Doc. # 143) (D. Nev. July 29, 2011).

	
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                                                                                                                                                                                                                                   CASE HISTORY

                                                      In January 2010, Las Vegas attorney Steven Gibson4 hatched a plan with

Stephens Media LLC to sue hundreds of bloggers for copyright infringement,

using a scheme that was clearly unlawful under this Circuit’s law in Silvers v. Sony

Pictures Entertainment Corp., 402 F.3d 881 (9th Cir. 2005), and Sybersound

Records, Incorporated v. UAV Corporation, 517 F.3d 1137 (9th Cir. 2008). (See

generally Doc. # 28.) This scheme sought out trivial circumstances of copying on

small blogs and message boards.5 Righthaven did not analyze the “infringement”

to determine if it was actually fair use.6 Rather than sending take-down notices,

Righthaven sued these people without warning, filing 275 lawsuits across the

districts of Nevada, Colorado and South Carolina.7

                                                      Many victims, despite knowing the unsupportable nature of Righthaven’s

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
4
  Steven Gibson is a member of Dickinson Wright PLLC, a position he holds while
serving as CEO of Righthaven LLC. See http://www.dickinson-
wright.com/ourpeople/pages/person.aspx?person=96835d9d-f7d2-430e-a836-
92977532ec50 (last accessed Oct. 10, 2011).
5
  Righthaven’s Operating Agreement clearly identifies the purpose of Righthaven
LLC as finding instances of infringement on the Internet and suing for damages,
which would be divided between Righthaven and its media partners. Righthaven v.
DiBiase, Case No. 2:10-cv-01343 (Doc. # 51) (D. Nev. Apr. 17, 2011).
6
  In one case, Righthaven even sued a journalist for posting an exhibit to one of its
lawsuits in an article about that suit. Righthaven v. Eriq Gardner, Case No. 1:11-
cv-00777 (D. Colo. Mar. 25, 2011).
7
  Appellee acknowledges that the Copyright Act does not require pre-suit notice.
However, given the facts of Righthaven’s 275 cases, its failure to do so illustrates
the scheme’s true nature. This was an unlawful attempt to turn the Copyright Act
into a moneymaking scheme – not a legitimate use of intellectual property rights.

	
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claims, decided to pay rather than incur the expense of fighting. 8 One of

Righthaven’s many victims, Wayne Hoehn, a highly decorated Vietnam veteran,

decided to fight back. (Doc. # 8.) When he prevailed, the District of Nevada used

its discretion to place the cost of that fight upon Righthaven’s shoulders. Again

and again, Righthaven has attempted to shrug off its burden, as it would prefer not

to pay.

                                                      Throughout the life of the Righthaven scheme, courts have seized upon

Righthaven’s use of the copyrights exclusively for litigation, finding this stratagem

undermined its ability to claim it was harmed by infringement. (Doc. # 28);

Righthaven v. Jama, Case No. 2:10-cv-01322, 2011 U.S. Dist. LEXIS 43952 (D.

Nev. Apr. 22, 2011); Righthaven v. Realty One Group, Inc., 38 Media L. Rep.

2441 (D. Nev. Oct. 2010). Every time it was asked to review a defendant’s

conduct under 17 U.S.C. § 107, the District Court found the “infringement” to be

fair use. (Doc. # 28); Jama, 2011 U.S. Dist. LEXIS 43952; Realty One Group, Inc.,

38 Media L. Rep. at 2441.

                                                      Righthaven’s legal position worsened once its agreement with Stephens

Media LLC – known as the Strategic Alliance Agreement (“SAA”) – became

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
8
  See Righthaven v. Nat’l Org. for Reform of Marijuana Laws, Case No. 2:10-cv-
00351 (Doc. #30) (D. Nev. June 4, 2010) (accepting offer of judgment for $2,815
in satisfaction of infringement claim); Righthaven v. Rawlings et al., Case No.
2:10-cv-01527 (Doc. # 25) (D. Nev. June 28, 2011) (settling Righthaven’s
infringement claim for $1,000, at a rate of $100 per month).

	
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public. (See Doc. # 16.) Righthaven knew that this would happen, and it fought

mightily to keep this “smoking gun” document from the eyes of other defendants –

even seeking sanctions against a defendant who questioned the propriety of

Righthaven’s copyright ownership before the SAA came to light. See Righthaven

LLC v. Dr. Shezad Malik Law Firm P.C., Case No. 2:10-cv-00636 (Doc. #13) (D.

Nev., Aug. 18, 2010) (seeking sanctions against defendant for moving to dismiss

Righthaven’s case for lack of standing, prior to discovery of the SAA).

        Before this document came to light, (Righthaven purposely hid it from

courts and the public) courts agreed that Righthaven had a right to sue. Once the

document came to light, the District of Nevada characterized earlier decisions as

“tainted” by Righthaven’s dishonesty. DU, 2011 WL 2378186. This document

revealed that Righthaven was an unlawful scheme to simply assign rights to sue,

while assigning no other rights under Title 17. This practice is prohibited by

Silvers. (Doc. # 28 at 5-6.) To try and engage in a “do over,” Righthaven ginned

up a “Clarified and Restated Strategic Alliance Agreement,” which still did not

cure what ailed the original. Id.

        In this case, the District of Nevada found that Hoehn’s use of the

copyrighted work in order to discuss matters of public concern on a discussion

forum was a non-infringing fair use, and even if it was not, Righthaven lacked the

rigth to sue. (Doc. # 28.)     The district court awarded Hoehn fees to date of



	
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$34,045.50, to be paid by September 14, 2011. (Doc. # 43.) 9 Righthaven,

preferring not to pay, applied for an emergency stay (Doc. # 52), which the district

court partially denied, ordering Righthaven to post a bond by October 28, 2011.

(Doc. # 56.) Righthaven supplemented its motion to this Court, citing no case law,

claiming that it faces irreparable harm if it decides not to post a bond. (Doc. # 6-1.)

                                                      Righthaven prefers not to use its money to provide Hoehn with security that

he will be able to recover his judgment upon appeal, when his incurred fees will be

substantially higher. Righthaven has not pled poverty, but rather has averred that

its “operating capital is being utilized to service its monthly operating expenses,”

and that “it is presently unable to allocate more than $34,000 toward the bond

required by the district court.” (Doc. # 6-1 at 3.) Righthaven can post the bond –

it prefers not to. The district court did not indulge Righthaven’s preference (Doc.

# 56), and neither should this Court.

                                                      Righthaven’s claim that it cannot “allocate” $34,000 for a bond lacks

credibility. At this point, Righthaven exists solely to litigate its many existing

lawsuits; those that have ended in defeat for Righthaven.10 The District of Nevada

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
9
  These fees only encompass Hoehn’s fees up to and including his Motion for fees.
Hoehn intends to seek reimbursement of his fees incurred in drafting his reply
brief, defending this Appeal, and all fees incurred in trying to collect the fee award.
This is, of course, his right. See Clark v. Los Angeles, 803 F.2d 987, 992 (9th Cir.
1986); In re Nucorp Energy, 764 F.2d 655, 661 (9th Cir. 1985).
10
   See Righthaven v. Newman, Case No. 2:10-cv-01762, 2011 U.S. Dist. LEXIS
116654 (D. Nev. Oct. 7, 2011); Righthaven v. Wolf, Case No. 1:11-cv-00830, 2011

	
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even dismissed Righthaven’s case against a defaulting defendant because of the

company’s insurmountable lack of standing. Righthaven v. Hyatt, Case No. 2:10-

cv-01373, 2011 U.S. Dist. LEXIS 93115 (D. Nev. Aug. 19, 2011).

                                                      Righthaven has provided no statement of its operating expenses, and it

appears that Righthaven’s sole expenses are paying its CEO,11 who hatched and

profited from this illegal scheme, and paying its attorneys in order to file frivolous

motions and avoid paying lawful judgments.12 It is clear that Righthaven’s plan is

to consume its remaining capital by transferring money to those who least deserve

it, exhausting its funds until it is in a state of bankruptcy.13 The courts, thus far,

have been unwittingly complicit in this scheme by their failure to take a definitive

and stand against the ongoing fraudulent transfers. It must stop here.

                                                      Righthaven’s mass litigation model now descends upon the Court of

Appeals, and it has brought no fewer than five appeals before this Court – all of
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
U.S. Dist. LEXIS 109901 (D. Colo. Sept. 27, 2011); Righthaven v. Pahrump Life,
Case No. 2:10-cv-01575, 2011 U.S. Dist. LEXIS 90345 (D. Nev. Aug. 12, 2011);
Righthaven v. Mostofi, Case No. 2:10-cv-01066, 2011 WL 2746315 (D. Nev. July
13, 2011); Righthaven v. Barham, Case No. 2:10-cv-02150, 2011 WL 2473602 (D.
Nev. June 22, 2011) DiBiase, 2011 WL 2473531 (D. Nev. June 22, 2011); Hoehn,
(Doc. # 28); DU, 2011 WL 2378186 (D. Nev. June 14, 2011); Jama, 2011 U.S.
Dist. LEXIS 43952 (D. Nev. Apr. 22, 2011); Leon, Case No. 2:10-cv-01672 (Doc.
# 37) (D. Nev. Apr. 20, 2011); Realty One Group, Inc., 38 Media L. Rep. at 2441.
11
   DiBiase, Case No. 2:10-cv-01343 (Doc. # 51).
12
   These motions serve only to multiply and unnecessarily prolong this litigation –
particularly if Righthaven ultimately posts a bond. These kinds of abuses are ripe
for sanctions against a vexatious movant’s counsel under 28 U.S.C. § 1927.
13
   It is Hoehn’s position that these constitute fraudulent transfers, executed in order
to frustrate efforts to collect rightfully-granted fee awards.

	
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which are currently pending. Beyond this case, Righthaven is also the appellant in

Realty One Group, Incorporated, Case No. 11-15714 (9th Cir., filed Mar. 24,

2011); Jama, Case No. 11-16358 (9th Cir., filed June 2, 2011); DiBiase, Case No.

11-16776 (9th Cir., filed July 22, 2011); and DU, Case No. 11-17210 (9th Cir.,

filed Sept. 19, 2011). Righthaven also appealed a loss to the Tenth Circuit. Wolf,

Case No. 11-1469 (10th Cir., filed Oct. 11, 2011). Six appeals pending, yet

Righthaven claims that being required to post a mere $34,045.50 bond is an

“emergency.” Righthaven mocks the definition of the word and mocks this court

by bringing this frivolous motion.

        The propriety of Righthaven’s appeals is in serious doubt. Righthaven’s

opening brief in its first appeal, Realty One Group, Inc., Case No. 11-15714, was

due to this Court on September 19, 2011 and has yet to be filed. This appeal

appears to be another stall tactic for Righthaven to deny the defendant in that case,

and the First Amendment principles its fair use victory embraces, any finality.

This leaves two possibilities explaining Righthaven’s financial condition: Either it

has $34,000 that it can use to post a bond and it prefers not to, or it is absolutely

broke and pursuing its appeals in bad faith, in order to deny prevailing defendants

finality – and extract a settlement from them still. “When you have eliminated the




	
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impossible, whatever remains, however improbable, must be the truth.”14

                                                      With a record of baseless and prolific litigation that shows no sign of

stopping before the appellate courts, Righthaven asks this Court to accept at face

value that it cannot “allocate” funds to post a bond for $34,045.50 – and being

commanded to do so creates an “emergency” of such proportions that this financial

dispute must find itself ennobled with a visit to this Court.                                                                                                                                                                                                       Righthaven’s

predictable conduct and coy word games should not be rewarded with money that

belongs to Mr. Hoehn. Whether Righthaven prefers to or not, it must pay.

                                                                               ARGUMENT
I.                                                    Righthaven Does Not Have a Substantial Likelihood of Success on
                                                      Appeal, And The District Court’s Requirement That it Post to Bond to
                                                      Stay Execution of Hoehn’s Judgment Should Stand.

                                                      On September 28, 2011, Judge Pro held that Righthaven does not have a

likelihood of success on appeal. (Doc. # 56.) That analysis is unassailable. The

propositions Righthaven seeks to vindicate on appeal run directly counter to well-

established precedent.

                                                      First, an award of fees is only overturned if the court abused its discretion.

Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259

F.3d 1186, 1197 (9th Cir. 2001).                                                                                                                                                                                                    Second, Righthaven’s appeal will need to

overturn both rationales provided by the district court in order to prevail – both its

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
14
  Sir Arthur Conan Doyle, Tales of Sherlock Holmes: The Sign of the Four, p. 228
(Grosset & Dunlap 1892).

	
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lack of standing and whether Hoehn’s use of the article was a non-infringing fair

use. Righthaven must convince the Court that the district court erred on fair use,

erred on standing, and abused its discretion in awarding fees. Righthaven’s odds

of success would be understated if described as “extraordinarily unlikely.”

        Righthaven’s failure of standing is well-settled law within this Circuit. The

right to sue is not an exclusive right recognized in 17 U.S.C. § 106, Silvers, 402

F.3d at 890, and the right to sue can only be transferred with an exclusive right,

Sybersound, 517 F.3d at 1145-46. Righthaven acquired no exclusive rights from

Stephens Media LLC. (Doc. # 28.) Similarly, Rigthhaven’s attempted nunc pro

tunc “Clarification” of its obviously flawed Strategic Alliance Agreement with

Stephens Media LLC will not be sufficient to confer Righthaven with standing

under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).             Moreover, the

“Clarification” would not cure Righthaven’s defective standing even if it did

control Stephens Media LLC’s and Righthaven’s relationship. (Doc. # 28.)

        Similarly, the district court’s ruling on fair use is unlikely to be disturbed.

The Ninth Circuit and has repeatedly held that whole reproductions of copyrighted

works can constitute non-infringing fair uses of the copyrighted material. Perfect

10, Inc. v. Amazon, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (finding that

Google’s full reproduction of Perfect 10’s works in image search results was a

non-infringing fair use of the copyrighted images); Kelly v. Arriba Soft



	
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Corporation, 336 F.3d 811 (9th Cir. 2003); Hustler Magazine, Inc. v. Moral

Majority, Inc., 796 F.2d 1148, 1152-53 (9th Cir. 1986). The most relevant factor

in this analysis, market harm, Hustler Magazine, 796 F.2d at 1155-56, is lacking in

this case. Righthaven does not use its “acquired” copyrights for anything but

lawsuits (Doc. # 28) – which it no longer even files. (Doc. # 52-1 ¶ 7).

        Hoehn could not cause an iota of harm to Righthaven’s market for its

putatively owned copyrights unless he too began filing a raft of lawsuits for

copyright infringement, claiming that he owned the copyrights. The District Court

properly found that using a work in order to engage in discussion is fair use.

        Finally, appellate courts review awards of attorney’s fees for an abuse of

discretion. Columbia Pictures, 259 F.3d at 1197. Under 17 U.S.C. § 505, a

prevailing party in a copyright case is entitled to its attorney’s fees if awarded by

the court; additionally, using Rule 11 and its inherent powers, courts possess broad

discretion to award attorney’s fees under Rule 54. See Fogerty v. Fantasy, Inc.,

510 U.S. 517, 534 (1994); Columbia Pictures, 259 F.3d at 1197; Zull v. Shanahan,

80 F.3d 1366, 1371 (9th Cir. 1996).

        In this case, the basis for Righthaven’s dismissal – a lack of ownership in the

copyrights it sued on – is integral to              dismissal of its claim for copyright

infringement, and operates as a judgment on the merits in this case. Williston

Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement



	
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in the Cloverly Subterranean, Geological Formation, 524 F.3d 1090, 1094 (9th

Cir. 2008); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

        This Court is unlikely to find the district court abused its discretion in

awarding Hoehn his attorneys’ fees in a dispute over the Copyright Act’s farthest

reaches, especially as it interacts with the First Amendment. See Love v. Mail on

Sunday, Case No. CV-05-7798, 2007 U.S. Dist. LEXIS 97061 at * 16-17 (C.D. Cal.

Sept. 7, 2007). Abuse of discretion is a high standard to meet on appeal, and it is

presumptuous for Righthaven to claim it will prevail on this basis. See Fogerty,

510 U.S. at 534; Columbia Pictures, 259 F.3d at 1197; Zull, 80 F.3d at 1371.

Righthaven’s appeal rests on legal ground that is as infirm as Florida swampland.

II.     Righthaven’s Requested Relief is Inappropriate For Legal Damages
        Such As Those At Issue In This Case.

        Righthaven must post a bond for $34,045.50 to stay execution and

garnishment. (Doc. # 56.) The district court has not required Righthaven to take

or refrain from any activity, and has merely informed Righthaven of the conditions

that must be met to stay enforcement of a judgment. Righthaven may decline to

post the bond and satisfy Hoehn’s judgment, or allow Hoehn to move for a writ of

execution. Righthaven has specifically avoided saying that it does not possess

$34,000 because that sum is, most certainly, in Righthaven’s possession – thus the

careful use of “allocate” in Righthaven’s supplemental motion when explaining

why Righthaven would prefer not to post a bond for Hoehn’s judgment.

	
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        The present scenario is not the type of coercive and inflexible equitable

remedy that calls for urgent relief. To the contrary, Righthaven’s payment of

money – to Hoehn, the Court or a bond company –is a monetary and therefore

legal damage, rather than an equitable harm.       As a matter of law, monetary

damages are not considered irreparable. Los Angeles Coliseum Comm. v. Nat’l

Football League (“NFL”), 634 F.2d 1197, 1202 (9th Cir. 1980). “Mere injuries,

however substantial, in terms of money, time and energy necessarily expended […]

are not enough [to establish irreparable harm].      The possibility that adequate

compensatory or other corrective relief will be available at a later date, in the

ordinary course of litigation, weights heavily against a claim of irreparable harm.”

Sampson v. Murray, 415 U.S. 61, 90 (1974).

        If Righthaven satisfies Hoehn’s judgment, a legal damage, it is precluded

from claiming irreparable harm. If vindicated on appeal, Righthaven will be made

whole and Hoehn will have to return the value of his judgment to Righthaven.

Similarly, Righthaven does not even suffer theoretical harm by posting a

supersedeas bond as instructed by the district court (Doc. # 56); Righthaven’s

money would be held by the court for safe keeping – and as security for Hoehn’s

judgment – pending appeal.

        Not only is the remedy Righthaven seeks inappropriate, Righthaven has

employed the wrong mechanism by which to seek it. Rule 27-3(b) is applied in



	
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cases where equitable relief will cause irreparable harm. As established supra, no

irreparable harm looms. Moreover, this Circuit has denied review of cases under

Rule 27-3 even where actual lives hung in the balance. West v. Brewer, Case No.

11-16707 2011 U.S. App. LEXIS 14662 (9th Cir. July 18, 2011) (denying

petitioner’s motion under Ninth Circuit Rule 27-3 to stay his execution); Beaty v.

Brewer, Case No. 11-99007 2011 U.S. App. LEXIS 10562 (9th Cir. May 25, 2011)

(denying petitioner’s motion under Rule 27-3 to stay lethal injection, “a stay of

execution to resolve Plaintiffs speculative allegations is not in the public interest”).

        Similarly, the Ninth Circuit has declined to apply Rule 27-3 in other cases

where the petitioner sought relief from injunctions, or expedited proceedings,

rather than having to pay legal damages. One recent motion under Rule 27-3 saw

the Army Corps of Engineers petition this Court for a stay of an injunction

preventing it from building a dam in Alaska while its case was on appeal – a

motion this Circuit denied. S.E. Alaska Conservation Council v. U.S. Army Corps.

of Eng., 472 F.3d 1097, 1101 (9th Cir. 2006). In Ash v. Ash, this Circuit denied the

movant’s Rule 27-3 motion seeking to expedite his appeal’s hearing, as neither an

injunction nor an irreparable harm was present. 71 Fed. Appx. 684 (9th Cir. 2003).

        Sega Ents. v. Accolade Inc., the sole case where Ninth Circuit granted relief

under Rule 27-3, addressed a video game company that was not only negatively

enjoined from participating in the market due to copyright and trademark



	
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infringement, but affirmatively required to withdraw all its allegedly infringing

merchandise from the market within ten days. 977, F.3d 1510, 1517 (9th Cir.

1992).      The Sega case involved factually intensive issues regarding the

dissembling of programming code and labeling of merchandise produced by a third

party and used on another entity’s gaming console. Id. at 1513-14. Ultimately, the

case was about the propriety of Sega’s injunction against Accolade, which

Accolade moved to stay under Rule 27-3. Id. at 1532-33. The court vacated the

injunction and remanded the matter to the district court, due in part to remaining

questions of fact. Id. at 1533.

        This case is starkly different from Sega. The district court has not entered an

injunction against Righthaven. Nor has the district court forced Righthaven to post

a bond – it has merely stated that Righthaven must post a bond if it wishes to stay

enforcement of Hoehn’s judgment. Righthaven certainly would prefer not to post

this bond, but the fact that it would prefer not to “allocate” its funds to a bond does

not create an emergency. (Doc. # 6-1 at 3); See Sampson, U.S. 415 at 90; NFL,

634 F.2d at 1202. A bond is a common procedure. See Fed. R. Civ. P. 62(d).

Righthaven has no right to an exemption. Righthaven’s own submission to this

Court belies its claims of poverty, claiming that it will not “allocate” $34,045.50 to

post the bond, rather than stating that it is utterly out of money. (In that case,

bankruptcy protection would be appropriate).



	
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III.    The District Court’s Order Requiring a Bond of $34,045.50 Is The Bare
        Minimum Amount That Righthaven Should Be Required To Post As
        Security for Hoehn’s Appeal.

        In its Supplemental Brief (Doc. # 6-1), Righthaven claims that Hoehn

refuses to entertain any payment less than the full satisfaction of his judgment.

This is a material misrepresentation. The record reflects that Righthaven refused to

negotiate with Hoehn in good faith before Hoehn moved for his attorneys’ fees

(Doc. # 32-2 ¶¶ 12-18).

        Moreover, in his opposition to Righthaven’s application for a stay, Hoehn

stipulated to Righthaven’s posting a bond for the judgment, Hoehn’s subsequent

attorney’s fees, and estimated costs on appeal. (Doc. # 53) This, too, reflects

Hoehn’s willingness to work with Righthaven, if only Righthaven would make any

effort toward reaching a resolution. Now, after taking no steps to mitigate the

judgment entered against it, Righthaven seeks to stay its enforcement – while

providing Hoehn no security that Righthaven will ever satisfy his judgment.

        Ultimately, the district court ordered Righthaven to post a bond for Hoehn’s

original judgment of $34,045.50. (Doc. # 56) Such a resolution could have been

reached without motion practice if Righthaven had engaged Hoehn in meaningful

settlement discussions. Righthaven preferred not to.

        If the Ninth Circuit is to take any action on Righthaven’s motion, it should

be to increase the bond Righthaven must post with the district court. A Rule 62(d)



	
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supersedeas bond should cover the appellee’s original judgment, subsequent fees15

and estimated costs on appeal. Columbia Pictures Indus. v. Krypton Broad. of

Birmingham, Inc., 259 F.3d 1186, 1197 n. 6 (9th Cir. 2001). Such costs were

accounted for in Hoehn’s opposition to Righthaven’s application for a stay of

Hoehn’s judgment (Doc. # 53). An appellant is not entitled to a stay when it does

not post a bond. Molarius v. N.W. Nev. Telco, Inc., Case No. 3:05-cv-00383-LRH-

VPC 2008 U.S. Dist. LEXIS 117025 at *2 (D. Nev. Sept. 4, 2008).

                                                      In fashioning its September 28 Order, the district court was excessively kind

to Righthaven. Generally, a supersedeas bond must be posted for not only the

judgment, but also costs on appeal, interest, and damages for delay – including fees

sought in collection of the judgment. Poplar Grove Planting and Refining Co. v.

Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91 (5th Cir. 1979); see Columbia

Pictures Indus., 259 F.3d at 1197 n. 6. Righthaven has answered this reprieve with

excuses and ingratitude. Rather than posting the bond, it moved this Court to

accept its overtures of not being unwilling to “allocate” funds to satisfy it.

                                                      As such, this is an opportunity for the Ninth Circuit to impose a greater bond

requirement upon Righthaven and mandate that its bond reflect the value of

Hoehn’s subsequent attorneys’ fees and estimated costs of appeal, delineated in

Hoehn’s Opposition to Righthaven’s application for stay. (Doc. # 53.) Precedent

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
15
                   See Clark, 803 F.2d at 992; In re Nucorp Energy, 764 F.2d at 661.

	
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supports the inclusion of these sums in a supersedeas bond, and Righthaven should

not be given an exception from protecting Hoehn’s right to recovery – especially if

Righthaven seeks to stay it during its frivolous appeal.

                                  CONCLUSION

        Righthaven cannot demonstrate that it has any legitimate basis to avoid

posting a bond as ordered. Righthaven has not shown that it will prevail on appeal,

nor has it shown that any irreparable harm that will be suffered by posting its bond.

Instead, Righthaven asks this Court to affirm its preference not to “allocate” funds

in its possession to meeting a routine step before proceeding on appeal.

Righthaven’s record of conduct belies any benefit of the doubt the Court could

accord it.

Dated October 16, 2011

                                       Respectfully submitted,




                                       Marc J. Randazza
                                       J. Malcolm DeVoy IV
                                       Jason A. Fischer
                                       Randazza Legal Group

                                       Attorneys for Appellee,
                                       Wayne Hoehn




	
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                          CERTIFICATE OF SERVICE

      I, the undersigned, am an authorized representative of Randazza Legal
Group and caused this Response to Appellant’s Motion for Stay of Judgment
Pending Appeal to be served on all parties through the Ninth Circuit’s CM/ECF
system, consistent with the Federal Rules of Appellate Procedure and Ninth Circuit
Rules, on this 16th day of October, 2011.

                                            /s/
                                      Marc J. Randazza




	
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