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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MOUNTAIN VIEW

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, Case No. 2:10-cv-01356-RLH (GWF)
Plaintiff,
v.
DEMOCRATIC UNDERGROUND, LLC, a District of
[PROPOSED] FINAL
Columbia limited-liability company; and DAVID ALLEN, DECLARATORY JUDGMENT
an individual,
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.
[PROPOSED] FINAL DECLARATORY
JUDGMENT

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

BACKGROUND

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On August 10, 2010, Plaintiff and Counterdefendant Righthaven LLC (“Righthaven”)

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filed this action against Defendant and Counterclaimant Democratic Underground LLC

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(“Democratic Underground”) and Defendant David Allen, alleging that Defendants had infringed

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its alleged copyright in a single news article that had initially appeared on the website of the Las

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Vegas Review Journal newspaper (“LVRJ”). The allegedly infringing conduct consisted of a

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non-party’s posting of a five-sentence excerpt of the news story on an online political discussion

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forum hosted by Democratic Underground. On September 27, 2010, seeking a declaration of

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non-infringement, Democratic Underground filed its Counterclaim against Righthaven and

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that Righthaven had claimed to hold on the work. Dkt. No. 13. Counterdefendants Righthaven

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ATTORNEYS AT LAW

Stephens Media LLC, the parent company of the LVRJ and purported transferor of the copyright

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F ENWICK & W EST LLP

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and Stephens Media challenged the Counterclaim with motions to dismiss or strike. (Dkt. Nos.

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36 and 39, respectively). On June 14, 2011, this Court determined that Righthaven, in actuality,

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had never obtained any of the exclusive rights it purported to hold and accordingly dismissed

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Righthaven for lack of standing to bring suit for copyright infringement. Dkt. No. 116. The

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Court, however, permitted Democratic Underground to proceed with its Counterclaim as to

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Stephens Media, finding that Stephens Media was the real party in interest as it was the owner of

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the exclusive rights in the copyright in the work at issue, and has, at all times, been entitled under

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its relationship with Righthaven, to a 50% interest (less costs) in any recovery for copyright

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infringement by the Defendants.

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DECLARATION AND ENTRY OF JUDGMENT

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Before the Court now are two uncontested Motions: (1) Democratic Underground’s

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October 24, 2011 Motion for Summary Judgment on its Counterclaim against Stephens Media,

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seeking a declaration of non-infringement based on both fair use and lack of any volitional act

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(Dkt. No. 168), and (2) Democratic Underground’s and David Allen’s October 21, 2011 Motion

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for Entry of Judgment against Righthaven for dismissal with prejudice pursuant to Federal Rule

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of Civil Procedure 54(b) (Dkt. No. 166). Stephens Media has submitted a limited response to the

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Motion for Summary Judgment on the Counterclaim, in which Stephens “does not contest the
[PROPOSED] FINAL DECLARATORY
JUDGMENT

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

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substantive arguments presented by [Democratic Underground] on the issues of volitional act and

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fair use as applied to the material facts of this case.” Dkt. No. 174 at 2. Righthaven, for its part,

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has consented to the Motion for Entry of Judgment and Dismissal with Prejudice by declining to

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respond. See Local Rule of Civil Practice 7-2(d) (“The failure of an opposing party to file points

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and authorities in response to any motion shall constitute a consent to the granting of the

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motion.”).

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Based on the undisputed facts of record herein and applicable law, the Court hereby

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GRANTS the Motion for Summary Judgment on the Counterclaim, and GRANTS the Motion for

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Dismissal with Prejudice of Righthaven’s claims, and enters final judgment in this matter.

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THE COURT HEREBY DECLARES AS FOLLOWS:

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That Counterclaimants Democratic Underground and David Allen have committed

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither

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posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting

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until after this suit was filed. See Religious Tech. Ctr. v. Netcom On-line Commnc’n Servs., 907

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F. Supp. 1361 (N.D. Cal. 1995) (direct copyright infringement requires “some element of volition

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or causation which is lacking where a defendant’s system is merely used to create a copy by a

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third party”); see also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and

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Cartoon Network LP v. CSC Holdings, Inc,, 536 F.3d 121 (2d Cir. 2008).

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2.

That the act of posting this five-sentence excerpt of a fifty sentence news article on

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a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use

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doctrine provides a complete defense to the claim of copyright infringement from which this suit

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arose. Judgment on the Counterclaim is accordingly entered in favor of Democratic Underground

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and against Counter Defendant Stephens Media, LLC

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3.

That Judgment of dismissal with prejudice is hereby entered in favor of

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Defendants Democratic Underground and David Allen, for the reasons set forth in the Motion for

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Entry of Final Judgment. Dkt. 166. The Court need not certify this action under Federal Rule of

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Civil Procedure 54(b) as this Final Judgment will now dispose of all claims and all parties.

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[PROPOSED] FINAL DECLARATORY
JUDGMENT

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

ATTORNEYS’ FEES

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Defendant/Counterclaimants’ motion for attorneys’ fees shall be submitted within 14 days

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of the entry of this judgment, pursuant to Local Rule of Civil Practice 54-16(a) and Federal Rule

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54(d)(2)(B).

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IT IS SO ORDERED.

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Dated: ___________________________

By:
District Court Judge

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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[PROPOSED] FINAL DECLARATORY
JUDGMENT

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