Righthaven LLC v. Democratic Underground, LLC et al
Filing
134
SUPPLEMENT to 120 MOTION to Intervene as of Right Pursuant to Federal Rule of Civil Procedure 24(a)(2) ; by Plaintiff Righthaven LLC. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Mangano, Shawn)
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SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
shawn@manganolaw.com
SHAWN A. MANGANO, LTD.
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: (702) 304-0432
Fax: (702) 922-3851
DALE M. CENDALI, ESQ. (admitted pro hac vice)
dale.cendali@kirkland.com
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
Tel: (212) 446-4800
Fax: (212) 446-4900
Attorneys for Plaintiff Righthaven LLC
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RIGHTHAVEN LLC, a Nevada limited-liability
company,
Plaintiff,
Case No.: 2:10-cv-01356-RLH-CWF
v.
DEMOCRATIC UNDERGROUND, LLC, a District
of Columbia limited-liability company; and DAVID
ALLEN, an individual,
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Defendants.
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DEMOCRATIC UNDERGROUND, LLC, a District
of Columbia limited-liability company,
Counterclaimant,
v.
RIGHTHAVEN LLC, a Nevada limited-liability
company; and STEPHENS MEDIA LLC, a Nevada
limited-liability company,
Counterdefendants.
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SUPPLEMENTAL MEMORANDUM IN
SUPPORT OF RIGHTHAVEN LLC’S
APPLICATION TO INTERVENE AS OF
RIGHT PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 24(A)(2)
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On June 23, 2011, Righthaven LLC (“Righthaven”) moved the Court to intervene in this
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action as of right pursuant Federal Rule of Civil Procedure 24(a)(2) (“Application”). (Dkt. 120.) In
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its Application, Righthaven addressed the basis for its standing to sue for copyright infringement
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under the Clarification and Amendment to Strategic License Agreement (“Amendment”).
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Although Righthaven continues to believe that the Amendment was sufficient to confer
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standing to sue, Righthaven and Stephens Media wish to put the standing issue to rest. Therefore,
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these parties have further amended the Strategic Alliance Agreement in order to address the concerns
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raised in Righthaven LLC v. Hoehn, where the Court in that case found that Righthaven lacked
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standing to sue, even under the Amendment. Doc. # 28, Case. No. 2:11-CV-00050-PMP-RJJ (D.
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Nev.) (Pro, J.) The Amended and Restated Strategic Alliance Agreement (“Restated and Amended
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SAA”) was executed on July 7, 2011, and is attached hereto as Exhibit 1. The Restated and
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Amended SAA gives Righthaven the sole discretion to determine whether or not to bring an
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infringement action based on an assigned copyright. Further, as in the first Amendment, Righthaven
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is the sole owner of each assigned copyright, and Stephens Media holds only a non-exclusive
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license. Stephens Media may not encumber Righthaven’s rights in any assigned copyright, and
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Stephens Media’s option to re-purchase any assigned copyright does not accrue until five years after
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the copyright is assigned. In short, there can be no question that Righthaven is the only true owner
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of any assigned copyright and thus, has standing to sue for infringement.
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Shortly after the Restated and Amended SAA was executed, Righthaven’s counsel informed
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counsel for the defendants and counsel for amicus curiae of the existence of the new agreement, sent
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them a copy of the agreement, and informed them of Righthaven’s intention to inform the Court of
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this recent development. Righthaven communicated to counsel that it was amenable to requesting an
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additional briefing schedule from the Court in the event that the defendants wished to address the
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issue of standing under the Restated and Amended SAA. Defendants have indicated that they would
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like the opportunity to address the Restated and Amended SAA.
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Given these recent developments, Righthaven has submitted along with this supplemental
memorandum a revised proposed complaint, which alleges facts relating to standing under the
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Restated and Amended SAA. See Exhibit 2. The parties are currently working to provide the Court
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with a stipulated revised briefing schedule.
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Dated this 11th day of July, 2011.
SHAWN A. MANGANO, LTD.
By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
shawn@manganolaw.com
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel:
(702) 304-0432
Fax:
(702) 922-3851
DALE M. CENDALI, ESQ. (admitted pro hac vice)
dale.cendali@kirkland.com
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
Tel:
(212) 446-4800
Fax:
(212) 446-4900
Attorneys for Plaintiff Righthaven LLC
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CERTIFICATE OF SERVICE
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Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that I on this 11th day of
July, 2011, I caused the foregoing document to be served by the Court’s CM/ECF system.
SHAWN A. MANGANO, LTD.
By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
shawn@manganolaw.com
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: (702) 304-0432
Fax: (702) 922-3851
Attorney for Righthaven LLC
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