Righthaven LLC v. Vote For The Worst, LLC et al

Filing 40

RESPONSE to 33 MOTION to Dismiss for Lack of Jurisdiction, filed by Plaintiff Righthaven LLC. Replies due by 5/19/2011. (Mangano, Shawn)

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SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: [phone]
Fax: [phone]
Attorney for Plaintiff Righthaven LLC
RIGHTHAVEN LLC, a Nevada limitedliability company,

Case No.: 2:10-cv-01045-KJD-RJJ
PLAINTIFF RIGHTHAVEN LLC’S
RESPONSE TO DEFENDANT’S MOTION
TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION

Plaintiff,
v.

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VOTE FOR THE WORST, LLC, a Utah
limited-liability company; NATHAN E.
PALMER, an individual; and DAVID J.
DELLA TERZA, an individual,

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Defendant.

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Plaintiff Righthaven LLC (“Righthaven”) hereby responds to Defendants Vote For The

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Worst, LLC’s, Nathan E. Palmer’s, and David Della Terza’s (collectively “Defendants”) Motion

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to Dismiss for Lack of Subject Matter Jurisdiction (the “Motion”, Doc. # 33). Defendants’

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Motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), which

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asserts that Righthaven lacks standing to bring this action for copyright infringement. (Doc. # 33

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at 3-5.)

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Righthaven’s response is based on the below memorandum of points and authorities, the

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declaration of Steven A. Gibson (the “Gibson Decl.”), the declaration of Mark A. Hinueber (the

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“Hinueber Decl.”), the pleadings and papers on file in this action, any oral argument this Court

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may allow, and any other matter upon which this Court takes notice.

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION
Congress authorized a limited monopoly in copyrighted works “to motivate the creative

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activity of authors and inventors by the provision of a special reward.” See Sony Corp. of Am. v.

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Universal City Studios, Inc., 464 U.S. 417, 429.

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the number of people with websites and blogs, copyright holders have seen their works

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repeatedly copied and posted online without permission, recognition, or compensation. That is

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the case here, where Defendants displayed an unauthorized reproduction of an article by the Las

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Vegas Review-Journal on their blog. The abundance of infringement just like the one at issue

Yet, since the proliferation of the internet and

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here is why Stephens Media LLC (“Stephens Media”), owner of the Las Vegas Review-Journal,

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entered into an agreement with Righthaven to help it pursue these infringers.

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Part of the strategy to pursuing online infringers requires Stephens Media to assign its

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copyright in a particular work to Righthaven, along with the right to sue for past, present and

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future infringement. It is black letter law that at the moment such an assignment occurs,

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Righthaven, as the current copyright owner, has standing to pursue a claim for infringement.

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This is a much different situation than in Silvers v. Sony Pictures Entm’t Inc., 402 F.3d 881, 884

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(9th Cir. 2005), where the plaintiff, assigned only a bare right to sue for past copyright

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infringement, lacked standing.

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To further clarify the mutual intent of Righthaven and Stephens Media to confer full

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ownership in copyright to Righthaven when entering into copyright assignments, both parties

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have provided declarations in support of this memorandum. Thus, to the extent the Court finds

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that anything in the Strategic Alliance Agreement (“SAA”) or copyright assignment is

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ambiguous such that it is unclear whether Righthaven has standing, it may interpret these

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agreements to confer full ownership rights in Righthaven. The Court’s ability to do this is also

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expressly set forth in the SAA, which vests the Court with the power to correct any defective

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provision in order to “approximate the manifest intent of the [p]arties.” (Gibson Decl. ¶ 11, Ex.

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2 § 15.1; Hinueber Decl. ¶ 10, Ex. 2 § 15.1.)

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Finally, in an effort to cure any possible doubt as to whether Righthaven has full

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ownership in an assigned copyright, Righthaven and Stephens Media have recently executed a

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Clarification and Amendment to Strategic License Agreement (the “Amendment”), which not

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only makes clear that Righthaven has full ownership rights in any assigned copyright, it gives

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Stephens Media only a non-exclusive right to use an assigned work.
For these reasons, Righthaven respectfully requests that the Court find that it has at all

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times had standing to maintain this suit, or in the alternative, that any defect in Righthaven’s

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standing has been cured by the Amendment. Accordingly, Defendants’ Motion must be denied.

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II.

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STATEMENT OF FACTS
Righthaven is the owner of a copyright registration for the literary piece entitled “NORM:

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‘Idol’ finalists keep busy in Las Vegas” (the “Work”), which originally appeared in the Las

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Vegas Review-Journal on or about April 11, 2010. (Doc. # 1 at 2; Doc. # 1-1 at 2-3; Gibson

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Decl. ¶ 3; Hinueber Decl. ¶ 3.) May 25, 2010, Stephens Media, the original owner of the Work,

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assigned all rights, title and interest in and to the Work, including the right to seek redress for all

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past, present and future infringements (the “Assignment”). (Gibson Decl. ¶ 4, Ex. 1; Hinueber

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Decl. ¶ 4, Ex. 1; see also Doc. #1 at 4.) On June 21, 2010, Righthaven was granted registration

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of the Work with the United States Copyright Office based on the ownership rights conveyed by

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the Assignment. (Doc. # 1-1 at Ex. 3; Gibson Decl. ¶ 4.)

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Righthaven contends that on April 12, 2010, an Internet forum user with the moniker

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“Racing Rat” posted an unauthorized copy of the Work on a website forum owned, operated and

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controlled by the Defendants. (See Doc. # 1 at 2-3.) Thus, Defendants’ alleged act of copyright

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infringement occurred prior to the Assignment, thereby constituting an accrued claim at the time

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Righthaven was conveyed ownership rights in and to the Work along with the right to sue for

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past, present and future infringement claims. (Gibson Decl. ¶ 4, Ex. 1; Hinueber Decl. ¶ 4, Ex. 1;

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see also Doc. #1 at 4.) Defendant is alleged to have willfully violated the exclusive copyrights to

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the Work. (Doc. # 1 at 5.)

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Defendants responded to Righthaven’s Complaint by filing a motion to dismiss on the
grounds that this Court lacked subject matter jurisdiction and personal jurisdiction over them.

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(Doc. # 14.) On March 30, 2011, the Court expressly found that Righthaven has sufficiently

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alleged standing to sue based on the ownership rights conferred by the Assignment, which

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expressly included the right to bring accrued infringement claims, in view of the decision in

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Silvers. (Doc. # 28 at 2-3.) The Court further determined the Defendants were subject to

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personal jurisdiction in this forum. (Id. at 3-6.)
Defendants’ current dismissal request is nothing more than an attempt to take a proverbial

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second bite at a subject matter jurisdiction apple under the cloak of Internet-based innuendo and

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speculation as to the effect of SAA upon the Assignment. (Doc. # 33 at 3-6.) Defendants’

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pejorative bluster and meritless claims of willful deception by Righthaven must necessarily wilt

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in view of the well-founded arguments presented below. Simply put, Defendants’ Motion must

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be denied because Righthaven was effectively conveyed ownership of the Work, along with,

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among other things, the right to seek redress of accrued infringement claims, through the

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Assignment. The terms of the SAA, upon which Defendant relies, does not divest Righthaven of

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standing to maintain this action for past infringement of the Work. To the extent there is any

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dispute about the parties’ intent in entering into the transaction at issue, they have

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unquestionably expressed their intent and, if deemed necessary, have further clarified their intent

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through the Amendment. Accordingly, the Court should conclude, as it has previously found,

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that Righthaven has standing to maintain this action.

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III.

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ARGUMENT
Standing is a jurisdictional requirement that can be raised at any time, including sua

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sponte by the court, as is the case here. D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d

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1031, 1035 (9th Cir. 2008). Pursuant to Section 501(b) of the Copyright Act, only “the legal or

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beneficial owner of an exclusive right under a copyright” is entitled to sue for infringement.

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Silvers, 402 F.3d at 884. Section 106 of the Act, in turn, defines the exclusive rights that can be

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held in a copyright (e.g. the right to reproduce, to prepare derivative works, and to distribute

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copies). Exclusive rights in a copyright may be transferred and owned separately—for example,

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through assignment or an exclusive license—but no exclusive rights exist other than those listed

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in Section 106. Silvers, 402 F.3d at 885. While the right to assert an accrued cause of action for

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copyright infringement cannot be transferred alone, such a right can be transferred along with

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one or more of the exclusive rights in a copyright. See id. at 890.
As the assignee-owner of the full right and title in and to the Work, Righthaven has

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standing to sue for acts of copyright infringement occurring after it acquired ownership of the

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copyright. Pursuant to the express terms of the Assignment, Stephens Media also expressly

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transferred to Righthaven the right to assert accrued causes of action for infringement of the

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Work, giving Righthaven standing to sue for Defendant’s infringement, even though that

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infringement occurred prior to the Assignment. (Gibson Decl. ¶ 4, Ex. 1; Hinueber Decl. ¶ 4,

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Ex. 1.) In addition, Stephens Media and Righthaven recently executed a clarification and

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amendment to the SAA in order to further clarify and effectuate, to the extent not already

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accomplished, what has at all times been the intent of the parties—to transfer full ownership in

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copyright to Righthaven. (Gibson Decl. ¶ 12, Ex. 3; Hinueber Decl. ¶ 11, Ex. 3.) This

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Amendment has cured any defects in standing that existed under the parties’ original contractual

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relationship. (Id.) Therefore, as set forth below, Righthaven respectfully requests that the Court

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find that Righthaven has standing to maintain this action.1
A.

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Pursuant to the Written Assignment, Righthaven Has Standing to Sue for
Past Infringement.

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Binding precedent establishes that the assignment from Stephens Media to Righthaven

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conveys upon Righthaven standing to bring this case. In Silvers, the Ninth Circuit held that an

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assignor can transfer the ownership interest in an accrued past infringement, but the assignee has

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standing to sue only if the interest in the past infringement is expressly included in the

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assignment and the assignee is also granted ownership of an exclusive right in the copyrighted

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work. Id. at 889-90. In so holding, the panel in Silvers aligned Ninth Circuit law with that of the

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Second Circuit as set forth in ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980

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If the Court finds that despite the parties’ Amendment to the SAA, Righthaven still lacks
standing, Righthaven requests that it be granted leave to join Stephens Media as a plaintiff in
order to cure the jurisdictional deficiency. See Benchmark Homes, Inc. v. Legacy Home Builders
L.L.C., 2006 WL 208830, at *1 (D. Neb. Jan. 26, 2006) (granting plaintiff’s request for leave to
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(2d Cir. 1991), which recognized the right to sue for past infringement when both the copyright

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and the accrued claims were purchased. Silvers, 402 F.3d at 889.

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Multiple courts in this district have already determined that Righthaven has standing to

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bring a claim for past infringement under the Ninth Circuit’s standard in Silvers, including this

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very Court in this same case (Doc. # 28 at 2-3) based on the plain language of the copyright

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assignment:

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Righthaven LLC v. Majorwager.com, Inc., 2010 WL 4386499, at *2 (D. Nev. Oct.
28, 2010).

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Righthaven LLC v. Dr. Shezad Malik Law Firm P.C., 2010 WL 3522372, at *2
(D. Nev. Sept. 2, 2010).

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(See also Gibson Decl. ¶¶ 9-10.)

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Just like the assignments at issue in the cases above, and as this Court has already

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determined in this very case, the Assignment transferred all exclusive ownership rights in and to

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the Work to Righthaven, and expressly included all accrued causes of action for copyright

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infringement:

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Assignor hereby transfers, vests and assigns [the Work]…to
Righthaven…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 in and to the Work.

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(Gibson Decl. ¶ 4, Ex. 1; Hinueber Decl. ¶ 4, Ex. 1, emphasis added.) At the moment of

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the Assignment, Righthaven became the owner of the Work with all rights of ownership,

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including the right to register the Work, license the Work and seek redress for

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infringement, including past infringement. In other words, the Assignment conferred

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upon Righthaven the exclusive rights required under the Copyright Act to bring suit for

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both past and future acts of infringement. The Court has already reached this conclusion

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once in this very case. (Doc. # 28 at 2-3.) This inevitable observation aside, as parties

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frequently do, Righthaven licensed back to Stephens Media the right to exploit the Work.

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It also sought registration of the Work with the USCO and brought suit against a blatant

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infringer.

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While Defendants argue that the SAA renders the Assignment ineffective, nothing in the

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SAA’s provisions alter the unambiguous language of the Assignment or the rights that

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Righthaven acquired. 2 First, the SAA does not effectuate the assignment of any work. (Gibson

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Decl. ¶ 5, Ex. 2 § 7.2; Hinueber Decl. ¶ 5, Ex. 2 § 7.2.) Rather, the SAA reflects promises made

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by the parties with regard to future transactions in copyrights. (Id.) The SAA envisions an

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assignment to Righthaven of all rights, title and interest in and to potential copyrighted works,

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which includes the right to sue for any past, present or future infringements, coupled with a

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license back to Stephens Media of the right to exploit any copyrighted works. (Id.) But the SAA

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itself does not cause an assignment of property rights.

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Nor does the SAA’s right of reversion provision have any impact on Righthaven’s

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present standing to sue for past infringement. The right of reversion gives Stephens Media the

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right to regain the ownership to any assigned work in the future under certain conditions. (Id. §

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8.) That future right has no impact on Righthaven’s current ownership status, its ownership

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status at the time of the assignment, or its status at the time it filed this action. Indeed, unless

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and until Stephens Media exercises its right of reversion, that right will have no impact

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whatsoever. Stephens Media has not exercised that right (Gibson Decl. Ex. 2 § 8; Hinueber

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Decl. Ex. 2 § 8.), and there is nothing in the record to suggest it will.

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While parties in numerous other actions have alleged that this transactional structure

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constitutes a “sham” or meaningless assignment, adopting these allegations by a finding that

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Righthaven further contends that Defendants’ lack standing to challenge the contractual
validity of the SAA. Courts have held, that as a matter of public policy, it would be inequitable
to allow an infringer to use the validity of transfer of rights to a copyrighted work as a defense
when no dispute exists between the parties to the transfer. See Magnuson v. Video Yesteryear,
85 F.3d 1424, 1428-29 (9th Cir. 1996); Elden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d
27, 36-37 (2d Cir. 1982); Sabroso Publ’g, Inc. v. Caiman Records Am., Inc., 141 F.Supp.2d 224,
227-28 (D. P.R. 2001)(denying motion to dismiss for lack of standing based on alleged invalidity
of transfer of copyrighted interest). Moreover, as a matter of general contract law, only the
contracting parties to an agreement have standing to attack its validity. See, e.g., Greater Iowa
Corp. v. McLendon, 378 F.2d 783, 792 (8th Cir. 1967).
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Righthaven lacks standing to maintain this action for past infringement would eviscerate

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countless complex commercial and intellectual property transactions. “Principles of contract law

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are generally applicable in the construction of copyright assignments, licenses and other transfers

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of rights.” Key Maps, Inc. v. Pruitt, 470 F. Supp. 33, 38 (S.D. Tex. 1978). An assignment

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transfers all rights, title and interest in and to the assigned property. See id.; see also Pressley’s

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Estate v. Russen, 513 F. Supp. 1339, 1350 (D. N. J. 1981) (“An assignment passes legal and

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equitable title to the property . . . .”). Axiomatically, when the totality of rights are assigned by

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one party to another, and the party receiving said assignment then conveys a license of some

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interest to the same party or to another party, complete title to ownership vests in the assignee

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prior to being divested through licensure.
While the transactional structure described in the SAA, in which a license is given back

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to Stephens Media, may potentially be construed to limit Righthaven’s ability to bring suit for

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present and future infringements during the term of the license, it does not limit the company’s

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ability to bring suit for past infringements, which is precisely what is at issue here. As the Ninth

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Circuit held in Silvers, the right to sue for past infringement requires only an assignment of an

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ownership interest along with the expressed right to sue for an accrued claim for infringement.

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Silvers, 402 F.3d at 889-90.

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The transactional structure under the SAA and the actual assignment of rights comport

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with the holding in Silvers. Pursuant to the individual assignments that are ultimately executed,

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Righthaven is assigned all ownership rights, along with the right to sue for past, present and

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future infringements, associated with the work assigned. (See, e.g., Gibson Decl. ¶ 4, Ex. 1;

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Hinueber Decl. ¶ 4, Ex. 1.) While Righthaven promises under the SAA to license rights back to

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Stephens Media to exploit the acquired works, there can be no license until after the assignment

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of ownership rights and the right to sue for past infringements is conveyed. This structure thus

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conveys ownership and the right to sue for accrued infringement claims, which is precisely what

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is required to establish standing under Silvers for purposes of accrued or past infringement

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claims. This Court has already determined as much in denying the Defendants’ first attempt at

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dismissal for lack of subject matter. (Doc. # 28 at 2-3.) The same result is compelled upon

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examination of the Defendants’ apparently new but not improved subject matter jurisdiction

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attack predicated on the SAA’s disclosure. Any other conclusion would require the Court to

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ignore the expressly defined assignment and license-back structure contemplated by the parties

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to the SAA.
B.

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The Court Should Construe the Contracts to Convey to Righthaven All
Rights Necessary for It to Have Standing.

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Under Nevada law,3 the Court should interpret the contracts to find that they convey any

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and all rights necessary to establish Righthaven as the true and lawful owner of the copyright to

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the Work. To the extent there is any ambiguity with respect to whether the Assignment

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sufficiently conveyed the rights to Righthaven so that it has standing to bring this action, the

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court should look to parties’ intent. Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481,

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488, 117 P.3d 219, 224 (2005) (internal quotation omitted). Moreover, pursuant to the express

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language of the SAA, if any portion of the SAA is deemed void or unenforceable, the Court is

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contractually vested with the power to correct any defective provision in order to “approximate

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the manifest intent of the [p]arties.” (Gibson Decl. ¶ 11, Ex. 2 § 15.1; Hinueber Decl. ¶ 10, Ex. 2

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§ 15.1.)
Contrary to Defendants’ conspiratorial assertions, there can be no question that the

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parties intended to convey to Righthaven any right necessary for it to bring suit. As set forth in

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the accompanying declarations and as reflected in the SAA, the Assignment, and the recently-

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executed Amendment discussed below, the parties to the SAA and the Assignment intended to

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vest copyright ownership of specific works in Righthaven so as to grant it the right to sue for

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infringement, including past infringement, while still permitting Stephens Media to use the

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works going forward based on a license of rights to do so from Righthaven. (Gibson Decl. ¶¶ 5-

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12, Exs. 2-3; Hinueber Decl. ¶¶ 5-11, Exs. 2-3.) Accordingly, the Court should construe the

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contracts in such a way that they convey to Righthaven all rights that are necessary to have

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The SAA expressly states that it is governed by Nevada law. (Gibson Decl. ¶ 5, Ex. § 15.3;
Hinueber Decl. ¶ 5, Ex. § 15.3.)
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standing to maintain this action. If the Court does so, it will necessarily conclude once again that

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Righthaven has always had standing to bring this suit.

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C.

Standing Is Also Effected by the Amendment.

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As stated above, Righthaven has standing to bring suit pursuant to the Assignment and

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SAA, which expressly confer (and reflect the intent to confer) full copyright ownership on

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Righthaven. Nevertheless, to further clarify the parties’ intent—and to preempt any future

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challenges to Righthaven’s standing—Righthaven and Stephens Media have clarified and

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amended their intent when entering into the SAA as set forth in the supporting declarations and

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in the Amendment. (Gibson Decl. ¶ 12, Ex. 3; Hinueber Decl. ¶ 11, Ex. 3.) In the Amendment,

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Righthaven and Stephens Media promise to execute individual assignments for certain

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copyrighted works (as before), but Righthaven promises to grant Stephen’s media only a non-

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exclusive license to Exploit the work. (Gibson Decl. Ex. 3 at 1-2; Hinueber Decl. Ex. 3 at 1-2.)

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As a mere holder of the right to use the assigned copyrighted work, Stephens Media would not

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have standing to sue for infringement. See, e.g., Silvers 402 F.3d at 884-85. Thus, the sole party

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holding any exclusive rights, and the attendant standing to sue for infringement, would be

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Righthaven. See id. This agreement reflects the parties’ intent to transfer full rights in the

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copyright to Righthaven. (Gibson Decl. ¶¶ 5-12, Ex. 3; Hinueber Decl. ¶¶ 5-11, Ex. 3.) Further,

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the Amendment extinguishes the “right of reversion” previously held by Stephens Media, and

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replaces it with a standard option to re-purchase the copyright upon the satisfaction of certain

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conditions. (Gibson Decl. Ex. 3 at 2-3; Hinueber Decl. Exs. 3 at 2-3.) The Amendment also

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contains provisions requiring Stephens Media to pay Righthaven royalties for its use of the

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Work, making Righthaven the beneficial owner in the Work, in addition to its status as legal

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owner. (Id. at 1-2.)

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Courts frequently allow parties to a copyright transfer to subsequently clarify or amend

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their agreement in order to express their original intent to grant the assignor the right to sue for

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infringement. See Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 591 (7th Cir. 2003)

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(recognizing that an oral assignment can be confirmed later in writing); Imperial Residential

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Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995) (“[A] copyright owner’s

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later execution of a writing which confirms an earlier oral agreement validates the transfer ab

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initio.”); Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1532 (11th Cir.

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1994); see also Sabroso Publ’g, Inc., 141 F. Supp. 2d at 228; Intimo, Inc. v. Briefly Stated, Inc.,

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948 F. Supp. 315, 318 (S.D.N.Y. 1996) (giving effect to a “very late” amendment granting the

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plaintiff the right to bring the accrued causes of action); Goldfinger Silver Art Co., Ltd. v. Int’l

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Silver Co., 1995 WL 702357, at *4 (S.D.N.Y. Nov. 28, 1995) (holding that plaintiff could cure

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standing defect after the action was filed); Infodek, Inc. v. Meredith-Webb Printing Co., Inc., 830

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F. Supp. 614, 620 (N.D. Ga. 1993) (holding that second assignment cured standing defect).
Given that the parties to the Assignment and the Amendment do not dispute the rights in

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the Work and the Defendant has not been prejudiced in any way by the Amendment, the Court—

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if it finds that original standing was defective—should allow the Amendment to cure the defect

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without dismissing the case.4 See Intimo, Inc., 948 F. Supp. at 317-18; Infodek, Inc., 830 F.

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Supp. at 620; Wade Williams Dist., Inc. v. Am. Broad. Co., Inc., 2005 WL 774275, at *4

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(S.D.N.Y. April 5, 2005); see also Dubuque Stone Prod. Co. v. Fred L. Gray Co., 356 F.2d 718,

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724 (8th Cir. 1966); Kilbourn v. Western Surety Co., 187 F.2d 567, 571 (10th Cir. 1951).

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Moreover, permitting subsequent clarification or amendment of the parties’ original intent so as

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to cure any technical standing defects promotes judicial economy and reduces litigation costs

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that would necessarily arise from the dismissal and re-filing of a new action. Intimo, Inc., 948 F.

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Supp. at 318-19.

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D.

Defendant’s Claim That Righthaven Has Willfully Deceived The Court is
Wholly Without Merit.

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In a transparent attempt to benefit from the groundswell of Internet-based conspiracy

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theories and baseless attacks against the propriety of its alleged business model, Defendants

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alternatively request dismissal of Righthaven’s Complaint because it has willfully deceived the

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Court. (Doc. # 33 at 5-8.) As the above arguments clearly establish, Righthaven has standing to

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Federal Rule of Civil Procedure 17(a) additionally supports Righthaven’s request to have the
parties’ intent to grant the company standing to bring this action by recognizing and giving effect
to the Amendment through ratification. See Clarkson Co. Ltd. v. Rockwell Int’l Corp., 441 F.
Supp. 792, 797 (N.D. Cal. 1977).
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maintain this action for past infringement of the Work. (Gibson Decl. ¶ 4, Ex. 1; Hinueber Decl.

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¶ 4, Ex. 1.) Righthaven has buttressed this inevitable conclusion by supplying the Court with

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supporting declarations from both parties to the transaction that unquestionably demonstrates

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their intent in effectuating the Assignment. (Gibson Decl. ¶¶ 5-12, Exs. 2-3; Hinueber Decl. ¶¶ 5-

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11, Exs. 2-3.) Moreover, Righthaven has further submitted the Amendment, which, while

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unnecessary to vest the Court with standing for Defendants’ past infringement under Silvers,

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unequivocally clarifies Righthaven’s standing to maintain this action along with actions for

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present and future infringements of the Work. (Gibson Decl. ¶ 12, Ex. 3; Hinueber Decl. ¶ 11,

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Ex. 3.)
Given the above-cited authority, supporting materials and this Court’s own prior decision

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(Doc. # 28 at 2-3), Defendants would have to somehow pull a proverbial rabbit from a

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magician’s top hat in order to successfully justify dismissal of Righthaven’s Complaint on the

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ground that it willfully deceived this Court by filing this action. In short, the record before the

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Court demonstrates Righthaven’s entitlement to maintain this action. Accordingly, Defendants’

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request for dismissal based on willful deception by Righthaven must be rejected and the rampant,

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unjustified Internet-based criticism attendant to such baseless claims must come to an end in

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view of this Court’s anticipated, well-reasoned decision.

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IV.

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CONCLUSION
For the foregoing reasons, Righthaven respectfully requests the Court find that Righthaven

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has standing to maintain this infringement action. Accordingly, Defendants’ Motion must be

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denied.

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Dated this 9th day of May, 2011.

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SHAWN A. MANGANO, LTD.

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By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701

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Attorney for Righthaven LLC

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CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that I on this 9th day of
May, 2011, I caused the foregoing document to be served by the Court’s CM/ECF system.

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SHAWN A. MANGANO, LTD.

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By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: [phone]
Fax: [phone]

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Attorney for Righthaven LLC

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