Righthaven LLC v. Wolf et al

Filing 49

MEMORANDUM OPINION AND ORDER. The Court converts Mr. Wolf's Rule 12(b)(1) motion to a Rule 56 motion and GRANTs him SUMMARY JUDGMENT. Under Section 505 of the Copyright Act and ORDER that Righthaven shall reimburse Mr. Wolf's full costs in defending this action, including reasonable attorney fees, by Judge John L. Kane on 09/27/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 1:11-cv-00830-JLK
RIGHTHAVEN LLC, a Nevada Limited Liability Company,
Plaintiff,
v.
LELAND WOLF, an individual, and
IT MAKES SENSE BLOG, an entity of unknown origin and nature,
Defendants.

MEMORANDUM OPINION AND ORDER
Kane, J.
The issue presented in this case, whether a party with a bare right to sue has standing to
institute an action for infringement under federal copyright law, is one of first impression in the
Tenth Circuit. After considering the parties’ written and oral arguments and analyzing the
constitutional underpinnings of federal copyright law, the legislative history of the 1909 and 1976
Copyright Acts, and the meager precedent available from analogous situations in other Circuits, I
hold that the answer to that question is a forceful, yet qualified, “no” and GRANT summary
judgment to Defendant Leland Wolf. Furthermore, pursuant to 17 U.S.C. § 505, Righthaven shall
reimburse Mr. Wolf’s full costs in defending this action, including reasonable attorney fees.
FACTUAL BACKGROUND
On November 18, 2010, the Denver Post published a photograph of a Transportation
Security Administration Agent performing an enhanced pat-down search at Denver International
Airport (the “Work”). Although the copyright in this photograph was originally held by MediaNews

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Group, Inc., the Denver Post’s parent company, at some point following its original publication the
copyright was purportedly transferred to Plaintiff Righthaven LLC, which registered the Work with
the federal Copyright Office on December 10, 2010. See Copyright Registration (doc. 1-4). Shortly
thereafter, Righthaven filed fifty-seven lawsuits in this district, each alleging copyright infringement
in violation of the anti-infringement provisions of federal copyright law. See 17 U.S.C. § 501.
Defendant Leland Wolf was among those caught up in Righthaven’s enforcement dragnet.1
As alleged in Righthaven’s complaint, on or about November 29, 2010 and February 5, 2011, Mr.
Wolf displayed the Work on his website, itmakessenseblog.com, without seeking or receiving
permission to do so from Righthaven. Based on these alleged facts, Righthaven filed suit against
Mr. Wolf. On May 17, 2011, Mr. Wolf filed a Motion to Dismiss for Lack of Subject Matter
Jurisdiction (doc. 11).
ANALYSIS
Nature of Review
As a threshold matter, it is necessary to determine the proper framework for resolving Mr.
Wolf’s motion. Ordinarily, motions to dismiss for lack of subject matter jurisdiction are premised
upon Federal Rule of Civil Procedure 12(b)(1) and take one of two forms: either a facial or factual
attack. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). In a facial attack on the
sufficiency of the complaint, a reviewing court must accept the allegations of the complaint as true.

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As evidenced by the caption, Righthaven also named It Makes Sense Blog as a party to
this action. It Makes Sense Blog is not a person or organized legal entity, but the domain name
of a website owned and operated by Mr. Wolf. It is not, therefore, capable of being sued and it is
dismissed as a party to this lawsuit. See, e.g., Aston v. Cunningham, 216 F.3d 1086 n.3 (10th
Cir. 2000) (dismissing Salt Lake County jail as a defendant because a detention facility is not a
person or legally created entity capable of being sued).
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Id. When a party relies on evidence outside of the complaint in mounting a factual attack, however,
a reviewing court may not presume the truthfulness of the complaint’s allegations. Id. at 1003. In
such instances, the reviewing court has “wide discretion to allow affidavits, other documents, and
a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
(citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)).
Ordinarily, the consideration of evidence outside the pleadings does not convert a Rule
12(b)(1) motion to dismiss into a Rule 56 motion. Id. There is, however, one important exception
to this rule: when the resolution of jurisdictional issues is intertwined with the merits of the case,
“a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a
Rule 56 summary judgment motion . . . .” Id. The resolution of jurisdictional issues is said to be
intertwined with the merits of the case “when subject matter jurisdiction is dependent upon the same
statute which provides the substantive claim in the case . . . .” Id. (citing Wheeler, 825 F.2d at 259);
see also Tilton v. Richardson, 6 F.3d 683, 685 (10th Cir. 1993). The parties must, however, be given
notice before a Rule 12(b)(1) motion is converted to a Rule 56 motion. Wheeler, 825 F.2d at 259.
Such notice need not be formal or explicit; “when a party submits material beyond the pleadings in
support of or opposing a motion to dismiss, the prior action on the part of the parties puts them on
notice that the judge may treat the motion as a Rule 56 motion.” Id. at 260.
Because my jurisdiction in this case is dependent upon federal copyright law, which also
provides the basis for Righthaven’s claim of infringement, the jurisdictional issues raised in Mr.
Wolf’s Motion to Dismiss are intertwined with the merits of the case. Accordingly, I will convert
his Rule 12(b)(1) motion to dismiss into a Rule 56 motion for summary judgment. Furthermore,
because both parties submitted materials in support of their respective arguments on Mr. Wolf’s

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motion to dismiss and incorporated those materials into their arguments, they have received ample
notice that Mr. Wolf’s motion was subject to treatment as a Rule 56 motion.
Accordingly, in resolving Mr. Wolf’s motion, I apply the familiar standards governing
motions for summary judgment. As the Federal Rules of Civil Procedure state, I may grant his
motion “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that [Mr. Wolf] is entitled to judgment as a
matter of law.” Fed R. Civ. P. 56(c)(2); Adamson v. Multi. Cmty. Diversified Servs., Inc., 514 F.3d
1136, 1145 (10th Cir. 2008). A fact is material if it could affect the outcome of the suit under
governing law; a dispute of fact is genuine if a rational jury could find for the non-moving party,
Righthaven, on the evidence presented. Adamson, 514 F.3d at 1145. In weighing these standards,
I draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Mr. Wolf bears the initial burden of identifying the basis for his motion and the supporting
evidence he believes demonstrates a lack of genuine issue as to any material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Adamson, 514 F.3d at 1145. Because he does not bear the
ultimate burden of persuasion at trial, he “may satisfy this burden by identifying ‘a lack of evidence
for [Righthaven]on an essential element of [its] claim.’” Adamson, 514 F.3d at 1145 (quoting Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th cir. 1998)).
Once Mr. Wolf has met his initial burden, the burden shifts to Righthaven, and it must
demonstrate more than “some metaphysical doubt” as to the material facts in order to survive
summary judgment. Matsushita Elec. Indus. Co., 475 U.S. at 586. Neither unsupported conclusory
allegations nor a mere scintilla of evidence, however, are sufficient to create a genuine dispute of

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material fact on summary judgment. See Mackenzie v. City & County of Denver, 414 F.3d 1266,
1273 (10th Cir. 2005). With these standards in mind, I turn to the merits of Mr. Wolf’s motion.
Copyright Law
The thrust of Mr. Wolf’s argument focuses upon the nature of the Assignment and the
Copyright Assignment Agreement entered into by Righthaven and MediaNews Group, Inc.
Specifically, Mr. Wolf argues that Righthaven has no right to institute a claim of infringement under
the Copyright Act because MediaNews Group, Inc. did not assign Righthaven any cognizable
copyright interest in the work at issue.
Righthaven counters, arguing that the Copyright Assignment Agreement has no impact upon
the plain text of the Assignment, which states that MediaNews Group transferred “all copyrights
requisite to have Righthaven recognized as the copyright owner of the Work 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 . . . .” Assignment (doc. 24-1). In the alternative, Righthaven
argues that the Copyright Assignment Agreement does not diminish the ownership interest
transferred by the Assignment, because the “license back” provision contained therein only vitiates
claims for present or future infringement. It avers that the copyright interest transferred in the
assignment is sufficient for purposes of instituting an action for past infringement under the
Copyright Act.
Both parties’ arguments assume the underlying legal premise that a party who holds an
accrued claim for copyright infringement, but who has no beneficial or legal interest in the copyright
itself, may not institute an action for infringement. Although this issue has been decided in the
Ninth Circuit, it is one of first impression in the Tenth Circuit, and the parties’ reliance on the Ninth

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Circuit’s resolution of this issue in Silvers v. Sony Pictures Entm’t, 402 F.3d 881 (9th Cir. 2005),
is misplaced. Although that decision, and those of other circuits, are persuasive authority, they are
not controlling. Accordingly, I must first determine the relevant law in light of Tenth Circuit
precedent and traditional tools of statutory interpretation.
I begin my analysis by looking to the text of the Copyright Act. See NISH v. Rumsfeld, 348
F.3d 1263, 1268 (10th Cir. 2003) (noting that “analysis of statutory construction ‘must begin with
the language of the statute itself’”). Righthaven’s claim for infringement is based on 17 U.S.C. §
501, which provides that “the legal or beneficial owner of an exclusive right under a copyright is
entitled, subject to the requirements of section 411, to institute an action for any infringement of that
particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Although this
language is straightforward, it does not expressly limit the right to sue for infringement to a legal
or beneficial owner of an exclusive right. See Silvers, 402 F.3d at 885. Because the statute is silent
on this issue, I must determine Congress’ intent in enacting this provision. I begin by analyzing the
constitutional origins of copyright law before examining the legislative history of the 1909 and 1976
Copyright Acts. See N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1282
(10th Cir. 2001) (“if the statutory language is ambiguous, a court can then resort to legislative
history as an aid to interpretation”).
The precepts of copyright law are rooted in the Constitution itself, which expressly grants
Congress the power “To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries .
. . .” U.S. Const. art. I, § 8, cl. 8. The primary goal of copyright law is to “secure the general
benefits derived by the public from the labors of authors.” See 1 Melville B. Nimmer & David

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Nimmer, Nimmer on Copyright § 1.03[A]. This goal is achieved by creating a limited monopoly
in copyright, which provides an economic benefit to the authors and creators of creative works. As
explained by the Supreme Court, the creation of this limited monopoly is justified by “the conviction
that encouragement of individual effort by personal gain is the best way to advance public welfare
through the talents of authors and inventors . . . .” Mazer v. Stein, 347 U.S. 201, 219 (1954); see
also Eldred v. Ashcroft, 537 U.S. 186, 219 (“By establishing a marketable right to the use of one’s
expression, copyright supplies the economic incentive to create and disseminate ideas”) (quoting
Harper & Row, Publrs v. Nation Enters., 471 U.S. 539, 558 (1985)).
Thus, copyright law necessarily balances the derivative goal of rewarding the creative labor
of authors of original works with the primary goal of promoting further creativity by allowing public
access to copyrighted works. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,
429 (1984), partially superseded by statute, Digital Millennium Copyright Act, Pub. L. No. 105-304,
112 Stat. 2860. This delicate balance underlies each successive iteration of the copyright regime,
as Congress attempts to account for changing methods of communicating and disseminating ideas
and expressions while maintaining the constitutionally mandated equilibrium. With these principles
in mind, I turn to an examination of the relevant legislative history.
Under the Copyright Act of 1909, standing to sue for copyright infringement was strictly
limited to the “proprieter” of a copyright. See 3 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 10.01[A]; 17 U.S.C. § 101 (1909). Furthermore, the 1909 Act prohibited the
assignment of anything less than the entire copyright. Id. When paired with the restriction on the
right to sue for infringement, this limitation on assignment, termed the doctrine of “indivisibility,”
promoted the public interest in the sharing of works by “protect[ing] alleged infringers from the

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harassment of successive law suits.” Id.
In the years following the passage of the 1909 Act, technological developments, such as the
invention of the motion picture, the television, and the phonograph, altered the fundamental nature
of copyright; “as a matter of commercial reality, copyright [became] a label for a collection of
diverse property rights each of which is separately marketable.” Id. In light of these changing
circumstances, courts fashioned remedies designed to circumvent the strictures of the doctrine of
indivisibility. Most of these exceptions involved so-called “beneficial owners” of copyright –
parties who lacked a legal interest in the copyright, but who still stood to gain financially from the
legal dissemination of the copyrighted material. As explained by the Seventh Circuit:
[C]ourts applying the 1909 Act invoked common law trust principles to hold that
when a copyright owner assigned title in exchange for the right to receive royalties
from the copyright’s exploitation, a fiduciary relationship arose between the parties,
and the assignor became a ‘beneficial owner’ of the copyright with standing to sue
infringers should the assignee fail to do so.
Moran v. London Records, Ltd., 827 F.2d 180, 183 (7th Cir. 1987) (citations omitted); but see
Prather v. Neva Paperbacks, Inc., 410 F.2d 698 (5th Cir. 1969) (basing an author’s, and past
copyright owner’s, right to sue not on trust principles but on “the effectiveness of an assignment of
accrued causes of action for copyright infringement”). This principle, that a former owner of a
copyright who has assigned his copyright interest in exchange for the right to receive royalties from
the copyright’s exploitation has the right to sue for infringement, is consistent with the guiding
principles of copyright law. The former copyright owner, often the original author or creator,
continues to derive an economic benefit from legal public access to the copyrighted material. The
public interest in access to copyrighted materials is served, and the former copyright owner is
rewarded for his efforts and encouraged to engage in further creative efforts.

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In contrast, the free assignment of the right to sue for infringement, as permitted by the Fifth
Circuit in Prather and advocated by Judge Bea in his dissent in Silvers, skews the delicate balance
which underlies federal copyright law. See Prather, 410 F.2d at 700; Silvers, 402 F.3d at 895 (Bea,
J., dissenting). A third-party who has been assigned the bare right to sue for infringement has no
interest in the legal dissemination of the copyrighted material. On the contrary, that party derives
its sole economic benefit by instituting claims of infringement, a course of action which necessarily
limits public access to the copyrighted work.2 This prioritizes economic benefit over public access,
in direct contradiction to the constitutionally mandated equilibrium upon which copyright law is
based. The legislative history relating to the Copyright Act of 1976 supports this interpretation.
The Copyright Act of 1976 abandons the doctrine of indivisibility, expressly allowing for
the assignment of numerous “exclusive rights” that, taken together, comprised the copyright. 17
U.S.C. § 201(d), see also 17 U.S.C. § 106 (enumerating the legally recognized copyright interests).
As the drafters of the 1976 Act noted in discussing the import of §§ 201 and 501, “The principle of

2

Although the institution of some third-party infringement suits may protect the interest
of a copyright owner, not all infringement suits are meritorious or worthwhile. Divorcing the
economically beneficial interest in copyright from the right to sue for infringement eliminates
the exercise of “prosecutorial” discretion by the copyright owner. The party whose only interest
is in the proceeds from an action for infringement has no incentive to refrain from filing suit.
Furthermore, in light of the severe statutory damages for copyright infringement and the
burdensome costs of litigation, a party sued for infringement, even a party with a meritorious
defense, will often agree to settlement. Thus, a party with a bare right to sue may file numerous
infringement actions of questionable merit with the intention of extorting settlement agreements
from innocent users. This possibility becomes even more likely when the financial viability of
the entity filing suit depends upon the proceeds from settlement agreements and infringement
suits. Even though copyright law expressly provides for an award of costs and reasonable
attorney fees to a party prevailing in its defense of a meritless infringement action, the economic
realities of securing counsel and paying in advance the costs of litigation turns this remedy into a
Potemkin Village. Both fundamentally and practically, the reality is at odds with the
constitutional prioritization of public access to copyrighted works.
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divisibility of copyright ownership, established by section 201(d), carries with it the need in
infringement actions to safeguard the rights of all copyright owners and to avoid a multiplicity of
suits.” H.R. Rep. No. 94-1476 at 158. To achieve this result, the Act expands the right to sue for
infringement to all legal owners of an exclusive right. 17 U.S.C. § 501(b).
The 1976 Act also expands the right to sue for infringement to beneficial owners of an
exclusive right. According to the drafters, “A ‘beneficial owner’ for this purpose would include, for
example, an author who had parted with legal title to the copyright in exchange for percentage
royalties based on sales or license fees.” See H.R. Rep. No. 94-1476 at 159. This directly parallels
the above-noted judicially created exception to the 1909 Act’s strict limitation of the right to sue for
infringement.
In light of the guiding principles of copyright law and the foregoing analysis of the
legislative history of the 1909 and 1976 Copyright Acts, it is apparent that the 1976 Act expands
standing to sue for copyright infringement to account for the divisibility of copyright ownership and
to incorporate the judicially-recognized exception allowing for the assignment of the right to sue to
a beneficial owner of a copyright interest. An expansive view of the right to sue for infringement,
as advocated by the Fifth Circuit in Prather and Judge Bea in his dissent in Silvers, is inconsistent
with these constitutional principles.3 Accordingly, I hold that only parties with a legally recognized

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Both the Fifth Circuit and Judge Bea based their expansive views on the belief that “the
assignment of an accrued cause of action for copyright infringement to an assignee is nothing
more than ‘simple assignment of a chose in action.’” Silvers, 402 F.3d at 902 (Bea, J.,
dissenting) (quoting Prather, 410 F.2d at 699-700). Although the historical common law rule
prohibiting the assignment of a chose in action has largely disappeared in the context of
contracts, Restatement (Second) of Contracts § 317 cmt. c (1981), the prohibition is much more
robust in the context of torts. See, e.g. U.S. Fax Law Ctr., Inc. v. iHire, Inc., 362 F. Supp. 2d
1248, 1251-53 (D. Colo. 2005). The nature of a copyright injury is enigmatic. In my view,
where the copyright owner is also the author or creator of the copyrighted work, the offense of
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interest in copyright as delineated in §106 (“legal owners”), and parties who stand to benefit from
the legal dissemination of copyrighted material (“beneficial owners”) have the right to sue for
infringement under § 501(b) of the Copyright Act.4 See Hyperquest, Inc. v. N’Site Solutions, Inc.,
632 F.3d 377, 381 (7th Cir. 2011); Silvers, 402 F.3d at 885; Silvers, 402 F.3d at 891 (Berzon, J.,
dissenting) (arguing that “a complete stranger to the creative process” should not be able to institute
an action for infringement).5 Having determined the relevant law, I now turn to the facts of this
case.
As an initial matter, it is necessary to determine the factual scope of my review. As noted
above, the parties contest whether the Copyright Assignment Agreement is relevant to my
determination of whether Righthaven has a sufficient interest to institute an action for infringement.6
Although the Assignment represents the culmination of the agreement between MediaNews Group
infringement is arguably more analogous to a personal tort than any contract right. This issue is,
however, not essential to my ruling in this case, and I decline to definitively address it.
4

One might ask, what of the author of a work-for-hire, who has exchanged his creative
energies for a sum certain? The answer lies in the question. The author of a work-for-hire has
freely bargained away his creative interest in the copyrighted work; he has no creative interest
for federal copyright law to protect.
5

The Second Circuit has taken an even more restrictive view of standing to sue for
copyright infringement. See Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32
(stating that §501(b) “authorizes only two types of claimants to sue for copyright infringement:
(1) owners of copyrights, and (2) persons who have been granted exclusive licenses by owners of
copyrights”). This holding ignores the plain language and legislative history of the 1976 Act,
which expressly provide that beneficial owners have the right to sue for infringement.
6

The parties do not dispute that the only evidence potentially relevant to my
determination of this issue is the Copyright Assignment Agreement and the Assignment.
Because these are contractual agreements, my interpretation of them is a question of law. See
Union Rural Elec. Ass’n, Inc. v. Pub. Util. Comm’n, 661 P.2d 247, 251 (Colo. 1983)
(“Interpretation of contract language is generally a question of law”). There are no other
disputed issues, and the parties’ dispute over the nature of the rights transferred from
MediaNews Group, Inc. to Righthaven is one properly resolved at summary judgment.
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and Righthaven to transfer some interest in the Work, “a contract . . . [must] be appraised in view
of the surrounding circumstances known to the parties at the time of its execution . . . .” Evensen
v. Pubco Petroleum Corp., 274 F.2d 866 (10th Cir. 1960) (citing Restatement (First) of Contracts
§ 230 (1932)).
The blank form of the Assignment agreement, which required MediaNews Group, Inc. to
supply only the date of the transfer and an authorizing signature to give it effect, was attached to
the Copyright Assignment Agreement. See Copyright Assignment Agreement, Schedule 5 –
Copyright Assignment (doc. 20-2) at 21. The Assignment at issue in this case was undeniably
contemplated at the time the parties entered into the Copyright Assignment Agreement. The
Assignment reflected the circumstances bargained for and agreed to by MediaNews Group, Inc. and
Righthaven in the Copyright Assignment Agreement and it must be appraised accordingly.
The Assignment purports to transfer “all rights requisite to have Righthaven recognized as
the copyright owner of the Work . . . .” As evidenced by the parties’ arguments in this case, the
transfer of a copyright interest is an issue of utmost importance in determining whether a party has
standing to institute an action for infringement. A party asserting the transfer of such a right, and
the concomitant standing to sue, bears the burden of establishing such a transfer. A clause
purporting to transfer “all rights requisite” merely begs the question. Accordingly, I turn to the
language of the Copyright Assignment Agreement to determine the nature of the “rights requisite”
transferred from MediaNews Group, Inc. to Righthaven. As the Copyright Assignment Agreement
states:
Despite any Copyright Assignment, [Media News Group] shall retain (and is hereby
granted by Righthaven) an exclusive license to Exploit the Publisher Assigned
Copyrights for any lawful purpose whatsoever and Righthaven shall have no right
or license to Exploit or participate in the receipt of royalties from the Exploitation
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of the Publisher Assigned Copyrights other than the right to proceeds in association
with a Recovery. To the extent that Righthaven’s maintenance of rights to pursue
infringers of the Publisher Assigned Copyrights in any manner would be deemed to
diminish Publisher’s right to Exploit the Publisher Assigned Copyrights, Righthaven
hereby grants an exclusive license to Publisher to the greatest extent permitted by
law so that Publisher shall have unfettered and exclusive ability to Exploit the
Publisher Assigned Copyrights. Righthaven shall have no obligation to protect or
enforce any Work of Publisher that is not Publisher Assigned Copyrights.
Copyright Assignment Agreement (Doc. 20-2), Schedule 1, Paragraph 6 (emphasis added). This
document indicates that the purported assignment of “rights requisite” is meaningless. Media News
Group retained all rights to exploit the Work; no legal interest ever changed hands. The usage of
the term “exclusive license” does not change this analysis. As noted by the Seventh Circuit, “It is
the substance of the agreement, not the labels that it uses, that controls [my] analysis.” Hyperquest,
Inc., 632 F.3d at 383.
Righthaven’s only interest in the Work is “the right to proceeds in association with a
Recovery.” The Copyright Assignment Agreement defines “Recovery” as “any and all sums . . .
arising from an Infringement Action.” Thus, when read together, the Assignment and the Copyright
Assignment Agreement reveal that MediaNews Group has assigned to Righthaven the bare right to
sue for infringement – no more, no less. Although the assignment of the bare right to sue is
permissible, it is ineffectual. Standing alone, “[t]he right to sue for an accrued claim for
infringement is not an exclusive right under § 106.” Silvers, 402 F.3d at 884. Furthermore, neither
the Assignment nor the Copyright Assignment Agreement provide Righthaven any beneficial
interest in the dissemination of the Work. Accordingly, Righthaven is neither a “legal owner” or
a “beneficial owner” for purposes of § 501(b), and it lacks standing to institute an action for
copyright infringement.

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CONCLUSION
It is apparent from the terms of the Assignment and the Copyright Assignment Agreement
that Righthaven lacks standing to institute an action for copyright infringement. Because the
jurisdictional issues raised in the Motion to Dismiss are intertwined with the merits of the case, I
convert Mr. Wolf’s Rule 12(b)(1) motion to a Rule 56 motion and GRANT him SUMMARY
JUDGMENT. Furthermore, in light of the need to discourage the abuse of the statutory remedies
for copyright infringement, I exercise my discretion under Section 505 of the Copyright Act and
ORDER that Righthaven shall reimburse Mr. Wolf’s full costs in defending this action, including
reasonable attorney fees.

Dated: September 27, 2011

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Judge

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