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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1 2 3 4 5 6 7 8 9 10 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 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 15 16 17 18 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, 19 Defendants. 20 21 22 23 24 25 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. 26 27 28 1 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF RIGHTHAVEN LLC’S APPLICATION TO INTERVENE AS OF RIGHT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24(A)(2) 1 On June 23, 2011, Righthaven LLC (“Righthaven”) moved the Court to intervene in this 2 action as of right pursuant Federal Rule of Civil Procedure 24(a)(2) (“Application”). (Dkt. 120.) In 3 its Application, Righthaven addressed the basis for its standing to sue for copyright infringement 4 under the Clarification and Amendment to Strategic License Agreement (“Amendment”). 5 Although Righthaven continues to believe that the Amendment was sufficient to confer 6 standing to sue, Righthaven and Stephens Media wish to put the standing issue to rest. Therefore, 7 these parties have further amended the Strategic Alliance Agreement in order to address the concerns 8 raised in Righthaven LLC v. Hoehn, where the Court in that case found that Righthaven lacked 9 standing to sue, even under the Amendment. Doc. # 28, Case. No. 2:11-CV-00050-PMP-RJJ (D. 10 Nev.) (Pro, J.) The Amended and Restated Strategic Alliance Agreement (“Restated and Amended 11 SAA”) was executed on July 7, 2011, and is attached hereto as Exhibit 1. The Restated and 12 Amended SAA gives Righthaven the sole discretion to determine whether or not to bring an 13 infringement action based on an assigned copyright. Further, as in the first Amendment, Righthaven 14 is the sole owner of each assigned copyright, and Stephens Media holds only a non-exclusive 15 license. Stephens Media may not encumber Righthaven’s rights in any assigned copyright, and 16 Stephens Media’s option to re-purchase any assigned copyright does not accrue until five years after 17 the copyright is assigned. In short, there can be no question that Righthaven is the only true owner 18 of any assigned copyright and thus, has standing to sue for infringement. 19 Shortly after the Restated and Amended SAA was executed, Righthaven’s counsel informed 20 counsel for the defendants and counsel for amicus curiae of the existence of the new agreement, sent 21 them a copy of the agreement, and informed them of Righthaven’s intention to inform the Court of 22 this recent development. Righthaven communicated to counsel that it was amenable to requesting an 23 additional briefing schedule from the Court in the event that the defendants wished to address the 24 issue of standing under the Restated and Amended SAA. Defendants have indicated that they would 25 like the opportunity to address the Restated and Amended SAA. 26 27 Given these recent developments, Righthaven has submitted along with this supplemental memorandum a revised proposed complaint, which alleges facts relating to standing under the 28 2 1 Restated and Amended SAA. See Exhibit 2. The parties are currently working to provide the Court 2 with a stipulated revised briefing schedule. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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 17 18 19 20 21 22 23 24 25 26 27 28 3 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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