Righthaven LLC v. Center For Intercultural Organ, et al

Filing 2

Filed (ECF) Appellant Righthaven LLC Mediation Questionnaire. Date of service: 06/09/2011. [7780826] (SAM)

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Circuit Mediation Office

MEDIATION QUESTIONNAIRE
Righthaven LLC v. Center for Intercultural Organizing, et al.,
Case no. 11-16358
Please briefly describe the dispute that gave rise to this lawsuit.
On August 5, 2010, Righthaven LLC (“Righthaven”) filed a copyright infringement
action against Center for Intercultural Organizing (“CIO”) and Kayse Jama (“Jama” and
collectively referred to with CIO as “Defendants”). CIO is a non-profit organization. Defendants
were alleged to have published, without authorization, a 100% replication of the literary work
entitled “Misdemeanor violations leading to deportations” (the “Work”) on their publicly
available Internet domain located at <interculturalorganizing.org> (the “Website”). The Work
was originally authored by and published by the Las Vegas Review Journal. The Work
Righthaven validly obtained all rights, title and interest to the Work, including the right to sue for
past, present and future infringements. Righthaven was granted registration of the Work from
the United States Copyright Office.
Briefly describe the result below and the main issues on appeal.
Defendants first responded to Righthaven’s Complaint by filing a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), which asserted they were
not subject to personal jurisdiction. While Defendants’ motion to dismiss was still pending, the
district court issued a sua sponte Order to Show Cause (the “OSC”) why Righthaven’s
Complaint should not be dismissed on the basis that Defendants’ unauthorized replication of the
Work was protected as fair use under 17 U.S.C. § 107. The district court’s OSC did not set forth
the procedural basis for it potentially dismissing Righthaven’s Complaint. At the time the OSC
was issued, Defendants had not answered the Complaint, asserted a fair use affirmative defense,
and no discovery been conducted given that the case was at its inception.
After a oral argument and the resulting continuance of the OSC, the invited Righthaven
to file briefing that set forth what it believed to be genuine issues of material fact that precluded
dismissal of its Complaint pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”). After
providing Defendants, along with amicus curiae Jason Schultz, with an opportunity to address
Righthaven’s identified genuine issues of material fact, the district court held a second OSC
hearing. At the second OSC hearing, the district court determined, as a matter of law, that each
of the four factor analysis under 17 U.S.C. § 107 weighed in favor of fair use. In doing so, the
district court refused to acknowledge binding precedent from this Court in view of the wholesale,
unauthorized copying of the Work and refused to acknowledge the reputational benefits and
membership/donation commercial activities engaged in by the Defendants on the Website where
the unauthorized replication was posted. See Worldwide Church of God v. Philadelphia Church
of God, Inc., 227 F.3d 1110, 1115-16 (9th Cir. 2000). The district court then proceeded to enter
summary judgment in favor of Defendants based on its fair use determination.

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MEDIATION QUESTIONNAIRE
Righthaven LLC v. Center for Intercultural Organizing, et al.,
Case no. 11-16358
(Continued)
Briefly describe the result below and the main issues on appeal.
(continued response from page 1)
The main issues on appeal include: (1) whether the district court erred in dismissing the
action pursuant to Rule 56 on fair use grounds, which is an affirmative defense that had not been
asserted via an answer to the Complaint on upon which a defendant bears the burden of proof;
(2) whether the district court erred in dismissing Righthaven’s Complaint on fair use grounds as
a matter of law before the parties had engaged in any discovery whatsoever; and (3) whether the
district court erred in finding that each fair use factor weighed in favor of such a finding as a
matter of law given the record presented and in view of controlling precedent from this Court.
Righthaven reserves the right to raise additional issues on appeal in its formal
submissions to the Court.
Describe any proceedings remaining below or any related proceedings in other tribunals.
There are no other proceedings remaining before the district court in this action.
Righthaven, however, has filed over 200 copyright infringement actions involving a host of
different forms of copyright protected material in the districts of Nevada, Colorado, and South
Carolina as of this submission. The analysis reached by the district court in this action has been
referenced in or cited by defendants in numerous pleadings filed in other actions in support of a
similar finding of fair use. Accordingly, Righthaven certainly has compelling interest in having
this Court fully examine the propriety of the district court’s fair use analysis and decision.
Provide any other thoughts you would like to bring to the attention of the mediator.
Counsel for Righthaven has appeared before this Court. As such, he has reached out to
opposing counsel in an attempt to gauge whether or not there is an interest in settling this matter
prior the mediator taking action. To date, no substantive settlement discussion have materialized
as a result of these efforts.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Righthaven LLC v. Center for Intercultural Organizing, et al.,
Case no. 11-16358
9th CIRCUIT RULE 3-2. REPRESENTATION STATEMENT
Righthaven LLC – Appellant
Shawn A. Mangano, Esq.
Shawn A. Mangano, Ltd.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129
Telephone – [phone]
Facsimile – [phone]
Center for Intercultural Organizing and Kaye Jama – Appellees
Michael E. Stoberski, Esq.
Olson, Cannon, Gormley & Desruisseaux
9950 West Cheyenne Avenue
Las Vegas, Nevada 89129
Telephone – [phone]
Facsimile – [phone]
Jason Schultz – Amicus Curiae
Chad A. Bowers, Esq.
Chad A. Bowers, Ltd.
3202 West Charleston Blvd.
Las Vegas, Nevada 89102
Telephone – [phone]
Facsimile – [phone]

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