A Tough Week for ‘Copyright Trolls’

Two courts, one district and the other a court of appeals, handed down rulings in cases involving two of the country’s more notorious “copyright trolls” this week, Righthaven and Prenda Law. These are both cases that DMCA Force and other companies that offer DMCA takedown services have been following closely, in part to remind ourselves of how NOT to do things.

In the Righthaven case, the Ninth Circuit Court of Appeals surprised nobody at all by concurring with the district court that Righthaven had no standing to file its various actions in the first place, because “agreements assigning plaintiff Righthaven LLC the bare right to sue for infringement of
newspaper articles, without the transfer of any associated exclusive rights in the articles, did not confer standing to sue.”

Judge Richard Clifton, writing for the panel, opened with an anecdote that Abraham Lincoln was (evidently) fond of relating to people:

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 calling someone a copyright owner does not make it so.

Meanwhile, U.S. District Judge Otis D. Wright handed down his bad news (namely, sanctions) for various Prenda Law-associated persons in an order peppered with references not to Lincoln, but to Star Trek.

Opening with a quote from Spock in Star Trek II: The Wrath of Khan (“The needs of the many outweigh the needs of the few”), Wright’s order manages to whimsically weave in multiple other Trekkie references into an order that must have been anything but fun to read for those targeted by it.

From the very first “finding of fact,” Judge Wright’s order is a stinger: “Steele, Hansmeier, and Duffy (“Principals”) are attorneys with shattered law practices. Seeking easy money, they conspired to operate this enterprise and formed the AF Holdings and Ingenuity 13 entities (among other fungible entities) for the sole purpose of litigating copyright-infringement lawsuits. They created these entities to shield the Principals from potential liability and to give an appearance of legitimacy.”

To borrow a cup of understatement from Ken White at Popehat, it is not a good thing to be a lawyer about whom a federal judge has written the above.

As you can probably guess, since it seems that nothing involving the American legal system is ever really “over,” at least one of the Prendateers has vowed to appeal Judge Wright’s sanctions order, and word has it that Righthaven may petition the U.S. Supreme Court to hear its case.