Righthaven LLC v. Pak.org et al

Filing 36

ORDER Denying 28 Motion for District Judge to Reconsider Order Denying Motion to Dismiss. Signed by Judge James C. Mahan on 7/21/11. (Copies have been distributed pursuant to the NEF - ASB)

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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,

2:10-CV-2155 JCM (PAL)

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Plaintiff,

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v.

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AZKAR CHOUDHRY, et al.,

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Defendants.

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ORDER

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Presently before the court is defendant Azkar Choudhry’s motion to reconsider (doc. #28)

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this court’s May 3, 2011, order denying his motion to dismiss, or in the alternative, motion for

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judgment on the pleadings, or in the alternative, motion for summary judgment (doc. #9). Plaintiff

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Righthaven LLC has filed a response (doc. #29), and the defendant has filed a reply (doc. #32).

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Reconsideration of a court order requires: (1) a valid reason for revisiting the prior order; and

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(2) facts or law of a strongly convincing nature so as to warrant reversal of the prior decision.

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Frasure v. United States, 256 F. Supp. 2d 1180 (D. Nev. 2003). For example, reconsideration may

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be warranted “if the district court: (1) is presented with newly discovered evidence, (2) has

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committed clear error or the initial decision was manifestly unjust, or (3) there has been an

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intervening change in controlling law.” Nunes v. Ashcroft, 375 F.3d 805, 807–08 (9th Cir. 2004).

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The defendant argues that this court has committed clear error by co-mingling his volitional

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act and in-line linking defenses. Specifically, defendant asserts this court erred by determining that

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“[d]efendant’s argument as to volition depends on the court concluding that, as a matter of [law], the

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James C. Mahan
U.S. District Judge

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alleged infringement here was actually ‘in-line linking.’” (Order dated May 3, 2011, p. 4). The

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defendant further argues that “[b]ecause the facts regarding inline linking are not relevant to the

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volitional conduct analysis, the [c]ourt also erred to the extent its finding that Righthaven raised

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genuine issues of material fact was based on those facts relevant to inline linking, rather than the

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narrow subset of undisputed facts relevant to volition.” (Doc. #28, p. 5).

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This court acknowledges that it does not appear that the showing of a volitional act relies

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upon the existence of in-line linking. However, to the extent that this court’s previous order (doc.

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#27), may have been premised on that conclusion, it is wholly irrelevant for purposes of the present

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motion. That is, this court had previously determined that the plaintiff has raised several genuine

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issues of material fact regarding the defendant’s conduct with respect to the RSS feed in question.

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For example, plaintiff has raised the following issues regarding the RSS feed, among others, in its

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reply:

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6) What editorial control did [d]efendants have over the content that appeared on their

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[w]ebsite?

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7) What interaction did the alleged RSS feed have with the [w]ebsite?

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8) Assuming the [w]ebsite had interaction with the RSS feed, what control did the

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[d]efendants have over this interaction?

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12) What are the subscription service terms for the RSS feed allegedly used to display the

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unauthorized copy of the [w]ork?

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13) How was the RSS feed allegedly used to display the unauthorized copy of the [w]ork

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selected by [d]efendants?

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15) Did the unauthorized copy of the [w]ork appear on [d]efendant’s [w]ebsite as alleged in

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paragraph 29 of Choudry’s declaration?

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16) When did [d]efendants subscribe to Make Magazine’s RSS feed and what was disclosed

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prior to or in connection with their subscription?

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Doc. # 23, p. 11-12.

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James C. Mahan
U.S. District Judge

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The court understands defendant’s position that in-line linking and volitional conduct are two

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separate defenses. However, this court cannot conclude, as a matter of law, that the presence of an

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RSS feed unequivocally absolves a defendant of any and all liability for potential copyright

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infringement. This court lacks the expertise required to determine when or how an individual may

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modify or otherwise alter the behavior of an RSS feed, if at all. As such, the court cannot make a

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legal determination on the consequences of any such modifications. The issues raised by plaintiff

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in its reply seem to share the same concern and, accordingly, plaintiff seeks discovery on the

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defendant’s control and use of the RSS feed that allegedly displayed the copyrighted image.

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Defendant cites to a case in this district which, he claims, demonstrates that an individual

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may never be held liable for direct copyright infringement on a volitional conduct basis if the

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copying was an automated response to a user’s request. (Doc. #28, p.2) (citing Field v. Google Inc.,

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412 F. Supp. 2d 1106 (D. Nev. 2006)). However, at issue in that case was the use of Google’s

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automated search bot and the retention of information found in caches that was automatically

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accessible by end users. Here, the issue is with respect to the function and use of an RSS feed, not

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a search engine. It is not clear to the court at this time that the two are functionally equivalent as far

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as the relevant legal doctrine is concerned. Because this court lacks the required technical expertise

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to resolve that question, the court cannot rule, as a matter of law, that the defendant is not liable at

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this juncture.

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Accordingly,

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IT IS HEREBY ORDERED ADJUDGED AND DECREED that defendant Choudry’s

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motion for reconsideration (doc. # 28) be, and the same hereby is, DENIED.
DATED July 21, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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