Righthaven LLC v. Democratic Underground, LLC et al

Filing 168

MOTION for Summary Judgment on Counterclaim and Memorandum of Points and Authorities In Support Thereof [Redacted] # 167 by Defendants David Allen, Democratic Underground, LLC, Counter Claimant Democratic Underground, LLC. Responses due by 11/17/2011. (Attachments: # 1 Declaration of Kurt Opsahl In Support of Motion for Summary Judgment on Counterclaim, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9 (redacted), # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12 (redacted), # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17 (redacted), # 19 Proposed Order Granting Democratic Underground's Motion for Summary Judgment)(Johnson, Jennifer)

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LAURENCE F. PULGRAM (CSB NO. 115163) (pro hac vice)
[e-mail]
JENNIFER J. JOHNSON (CSB NO. 252897) (pro hac vice)
[e-mail]
CLIFFORD WEBB (CSB NO. 260885) (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]
KURT OPSAHL (CSB NO. 191303) (pro hac vice)
[e-mail]
CORYNNE MCSHERRY (CSB NO. 221504) (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, California 94110
Telephone:
[phone]

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SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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CHAD BOWERS (NV State Bar No. 7283)
[e-mail]
CHAD A. BOWERS, LTD
3202 West Charleston Boulevard
Las Vegas, Nevada 89102
Telephone:
[phone]
Attorneys for Defendant and Counterclaimant
DEMOCRATIC UNDERGROUND, LLC, and
Defendant DAVID ALLEN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RIGHTHAVEN LLC, a Nevada limited liability company, Case No. 2:10-cv-01356-RLH (GWF)
Plaintiff,
v.
DECLARATION OF KURT
OPSAHL IN SUPPORT OF
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company; and DAVID ALLEN, MOTION FOR SUMMARY
JUDGMENT ON
an individual,
COUNTERCLAIM
Defendants.
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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OPSAHL DECLARATION IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

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CASE NO. 2:10-CV-01356-RLH (GWF)

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DECLARATION OF KURT B. OPSAHL, ESQ.

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1. I am an attorney licensed to practice law in the State of California and am a Senior Staff

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Attorney at the Electronic Frontier Foundation, attorney for Defendants and

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Counterclaimant in the above-captioned matter.

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2. I have knowledge of the facts set forth herein, and would testify to the same if called upon

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to do so. I make this Declaration in support of Democratic Underground’s Brief in

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Support of its Motion for Summary Judgment.

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3. Attached as Exhibit 1 is a true and correct copy of a May 20, 2010 Letter from
Righthaven to Mark A. Hinueber, produced in discovery by Stephens and marked with
Bates stamp numbers SM000166-167.
4. Attached as Exhibit 2 is a true and correct copy of a purported Assignment dated July 8,

SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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2010, produced in discovery by Stephens Media and marked with Bates stamp numbers

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SM000162-163.

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5. Attached as Exhibit 3 is a true and correct copy of a purported Assignment dated July 19,

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2010, produced in discovery by Stephens Media and marked with Bates stamp numbers

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SM000164-165.

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6. Attached as Exhibit 4 is a true and correct copy of Stephens Media’s Responses to

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Request for Admission (“RFA”) 22, 30, 39, 40, 56 and 57 and its objections.

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7. I last visited the Las Vegas Review-Journal website on October 19, 2011, where I

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determined that the entire story “U.S. Senate Race: Tea Party Power Fuels Angle” was

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still publicly available, at no cost, at http://www.lvrj.com/news/tea-party-power-fuels-

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angle-93662969.html.

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8. The page hosting the article found at www.lvrj.com/news/tea-party-power-fuels-angle-

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93662969.html, supra, encourages users to share articles on at least 18 different third-

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party Internet resources or to email, save, or print the article at no cost.

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9. When a user chooses the “Print This” option, a new window opens containing the text of

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the full article without advertising. Attached as Exhibit 5 is a true and correct copy of the

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article as provided with the “Print This” button.
OPSAHL DECLARATION IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

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CASE NO. 2:10-CV-01356-RLH (GWF)

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10. Attached as Exhibit 6 is a printout of the article on the Las Vegas Review Journal web
site, encouraging the use of these resources, with all user comments.

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11. Attached as Exhibit 7 a true and correct copy of Sherman Frederick, Content protection --

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Night of the unthinking commentator, Las Vegas Review-Journal (Jun 18, 2011), available

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at http://www.lvrj.com/blogs/sherm/Content_protection_--

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_Night_of_the_unthinking_commentator_.html.

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12. Attached as Exhibit 8 is a true and correct copy of Patrick Anderson, Three Copyright

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Assets Available For Purchase From Gametime IP, GametimeIP.com (Jun. 23, 2011),

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available at http://gametimeip.com/2011/06/23/three-copyright-assets-available-for-

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purchase-from-gametime-ip/.

SAN FRANCISCO

ATTORNEYS AT LAW

13. Attached as Exhibit 9 is a true and correct copy of a web traffic log produced by Stephens

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F ENWICK & W EST LLP

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Media and marked as confidential under the protective order, with Bates stamp numbers

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SM000003-8.

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14. Attached as Exhibit 10 is a true and correct copy of Stephens Media’s Responses to
Interrogatory Nos. 4 and 11 and its objections.

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15. Attached as Exhibit 11 is a true and correct copy of Stephens Media’s advertising rate

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chart for online advertising on lvrj.com, with Bates stamp numbers SM000048-49

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16. Attached as Exhibit 12 is a true and correct copy of a license agreement produced by

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Stephens Media and marked as confidential under the protective order, with Bates stamp

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numbers SM000050-58.

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17. Attached as Exhibit 13 is a true and correct copy of a license agreement produced by

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Stephens Media and marked as confidential under the protective order, with Bates stamp

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numbers SM000060-62.

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18. Attached as Exhibit 14 is a true and correct copy of a license agreement produced by

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Stephens Media and marked as confidential under the protective order, with Bates stamp

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numbers SM000063-64.

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19. Attached as Exhibit 15 is a true and correct copy of a license agreement produced by
Stephens Media and marked as confidential under the protective order, with Bates stamp
OPSAHL DECLARATION IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

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CASE NO. 2:10-CV-01356-RLH (GWF)

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numbers SM000065-67.
20. Attached as Exhibit 16 is a true and correct copy of a license agreement produced by

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Stephens Media and marked as confidential under the protective order, with Bates stamp

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numbers SM000068-72.

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21. Attached as Exhibit 17 is a true and correct copy of a license agreement produced by

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Stephens Media and marked as confidential under the protective order, with Bates stamp

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numbers SM000073-77.

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I declare the foregoing under penalty of perjury under the laws of the state of California

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and that the foregoing is true and correct executed this 21st day of October 2011, in
San Francisco, California.

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SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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/s/ Kurt Opsahl
KURT OPSAHL

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ATTORNEY ATTESTATION

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In accordance with the Court’s Special Order No. 109, dated September 30, 2005, I

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hereby attest that concurrence in the filing of this document has been obtained from the

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signatories indicated by a “conformed” signature (/s/) within this e-filed document:

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/s/ Jennifer J. Johnson
JENNIFER J. JOHNSON

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OPSAHL DECLARATION IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

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CASE NO. 2:10-CV-01356-RLH (GWF)