Righthaven LLC v. Democratic Underground, LLC et al

Filing 175

REPLY to Response to 168 MOTION for Summary Judgment on Counterclaim and Memorandum of Points and Authorities In Support Thereof [Redacted] # 167 MOTION for Summary Judgment on Counterclaim and Memorandum of Points and Authorities In Support Thereof [Redacted] # 167 MOTION for Summary Judgment on Counterclaim and Memorandum of Points and Authorities In Support Thereof [Redacted] # 167 MOTION for Summary Judgment on Counterclaim and Memorandum of Points and Authorities In Support Thereof [Redacted] # 167 ; filed by Defendants David Allen, Democratic Underground, LLC, Counter Claimant Democratic Underground, LLC. (Attachments: # 1 Proposed Order / [Proposed] Final Declaratory Judgment)(Pulgram, Laurence)

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SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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LAURENCE F. PULGRAM (CA State Bar No. 115163) (pro hac vice)
[e-mail]
JENNIFER J. JOHNSON (CA State Bar No. 252897) (pro hac vice)
[e-mail]
CLIFFORD C. WEBB (CA State Bar 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 (CA State Bar No. 191303) (pro hac vice)
[e-mail]
CORYNNE MCSHERRY (CA State Bar No. 221504) (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, California 94110
Telephone: [phone]
Facsimile: [phone]
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,
Plaintiff,
v.
DEMOCRATIC UNDERGROUND, LLC, a District of
Columbia limited-liability company; and DAVID ALLEN,
an individual,
Defendants.

Case No. 2:10-cv-01356-RLH (GWF)

DEMOCRATIC
UNDERGROUND’S REPLY IN
SUPPORT OF ITS MOTION FOR
SUMMARY JUDGMENT ON THE
COUNTERCLAIM

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.
REPLY ISO MOTION FOR SUMMARY
JUDGMENT ON COUNTERCLAIM

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

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On October 24, 2011, Defendant and Counterclaimant Democratic Underground filed a

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Motion for Summary Judgment on the Counterclaim (Dkt. No. 168) against Counterdefendant

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Stephens Media LLC (“Stephens Media”), seeking a declaration of non-infringement based on

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both fair use and lack of any volitional act. On November 17, 2011, Stephens Media submitted a

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limited response to the Motion in which Stephens Media “does not contest the substantive

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arguments presented by [Democratic Underground] on the issues of volitional act and fair use as

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applied to the material facts of this case.” Docket No. 174 at 2. Accordingly, the Court should

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grant this uncontested Motion for Summary Judgment on the Counterclaim in accordance with

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the Proposed Declaratory Judgment attached hereto, which declares the finding that Stephens has

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not opposed.
The only issue raised by Stephens Media in its Response (Dkt. No. 174) to the Motion for

SAN FRANCISCO

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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Summary Judgment, is to request that the Court maintain the confidentiality and sealed status of

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various non-party contracts that were produced by Stephens Media in this action, as well as the

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portions of the moving papers that reference to these materials. See Dkt No. 174 at 3-8.

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Democratic Underground takes no position on the propriety of maintaining the sealed status of

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the non-party contracts, Exhibits 9 and 12-17 of the Supporting Declaration of Kurt Opsahl (Dkt.

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No. 168-1, Ex. 9, 12-17). However, with respect to the content of the motion itself (Dkt. No.

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168), only minimal parts of the sealed contracts have been excerpted.

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The strict standard limiting filing under seal applies to materials included in dispositive

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motions. While the Court may ultimately reach its own conclusions based on the record,

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Democratic Underground respectfully suggests that Stephens Media has not provided compelling

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reasons that would justify maintaining the sealed status of the small amount of information that is

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excerpted in the motion, and certainly not “compelling reasons supported by specific factual

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findings that outweigh the general history of access and public policies favoring disclosure.”

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Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal

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citation omitted). Pursuant to Kamakana, a solid basis exists for this Court to conclude that the

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unredacted version of the motion itself could be unsealed.

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REPLY ISO MOTION FOR SUMMARY
JUDGMENT ON COUNTERCLAIM

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

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Finally, the entry of summary judgment as to the Counterclaim in this action also impacts

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the order needed to finalize judgment as to the Complaint filed by Plaintiff Righthaven LLC. In

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light of this Court’s dismissal of Righthaven’s complaint based on its lack of ownership of the

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copyrighted work at issue, and the resulting lack of standing to assert any claim, prior to moving

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for summary judgment against Stephens Media, Defendants on October 21, 2011 moved for entry

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of a partial final judgment dismissing with prejudice Righthaven’s claims, pursuant to Fed. R.

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Civ. P. Rule 54(b). See Dkt. No. 166. A response was due on November 7, 2011. However,

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Righthaven filed no opposition to that motion, nor did it dispute the propriety of entry of a

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dismissal with prejudice. See Local Rule of Civil Practice 7-2(d) (“The failure of an opposing

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granting of the motion.”). As the entry of summary judgment will now dispose of all claims in

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ATTORNEYS AT LAW

party to file points and authorities in response to any motion shall constitute a consent to the

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F ENWICK & W EST LLP

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this action, no further certification of a partial judgment as to “fewer than all claims or parties” is

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required under Rule 54(b). Rather, a single final judgment should be entered both declaring non-

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infringement and dismissing Righthaven’s claims with prejudice.

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The [Proposed] Final Declaratory Judgment submitted herewith has been prepared to

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accomplish this result.

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Dated: December 5, 2011

FENWICK & WEST LLP

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By:

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/s/ Laurence Pulgram
LAURENCE PULGRAM
Fenwick & West LLP
555 California Street, Suite 1200
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorneys for Defendant and Counterclaimant
DEMOCRATIC UNDERGROUND, LLC, and
Defendant DAVID ALLEN

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REPLY ISO MOTION FOR SUMMARY
JUDGMENT ON COUNTERCLAIM

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