Attachments (16) - Second Amended Answer and Counterclaim (Righthaven v. Eiser)

Exhibit 1
Order of June 15, 2011

Righthaven v. Democratic
Underground

2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53-1 Page 1 of 17
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
* * *
RIGHTHAVEN LLC, a Nevada limited-liability
company,
Plaintiff,
vs.
DEMOCRATIC UNDERGROUND, LLC, a
District of Columbia limited-liability company;
and DAVID ALLEN, an individual,
Defendants.
_______________________________________
DEMOCRATIC UNDERGROUND, LLC, a
District of Columbia limited-liability company,
Counterclaimant,
vs.
RIGHTHAVEN, LLC, a Nevada limited-
liability company; and STEPHENS MEDIA
LLC, a Nevada limited-liability company,
Counterdefendants.
_______________________________________
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Case No.: 2:10-cv-01356-RLH-GWF
O R D E R
(Motion for Voluntary Dismissal
with Prejudice#36; Motion to
Dismiss or Strike#38; Motion
for Summary Judgment#45)
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Case 2:10-cv-01356-RLH -GWF Document 116 Filed 06/14/11 Page 1 of 16 2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53-1 Page 2 of 17
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Before the Court is Plaintiff/Counterdefendant Righthaven LLCs Motion for
Voluntary Dismissal with Prejudice (#36, filed Aug. 10, 2010). The Court has also considered
Defendant/Counterclaimant Democratic Underground, LLC and David Allens (collectively
Democratic Underground) Opposition (#44, filed Dec. 7, 2010), and Righthavens Reply (#57,
filed Jan. 7, 2011).
Also before the Court is Counterdefendant Stephens Media LLCs Motion to
Dismiss or Strike (#38, filed Nov. 17, 2010). The Court has also considered the Democratic
Undergrounds Opposition (#46, filed Dec. 7, 2010), and Stephens Medias Reply (#56, filed Jan.
7, 2011).
Also before the Court is Democratic Undergrounds Motion for Summary
Judgment (#45, filed Dec. 7, 2010). The Court has also considered Righthavens Opposition
(#58, filed Jan. 8, 2011), and Democratic Undergrounds Reply (#62, filed Jan. 28, 2011).
Finally, the Court allowed and ordered supplemental briefing relevant to the three
motions under consideration because of important evidence that only came to light after these
motions were fully briefed. Accordingly, the Court has considered Democratic Undergrounds
Supplemental Memorandum Addressing Recently Produced Evidence (#79, filed Mar. 9, 2011),
Stephens Medias Response (#99, filed May 9, 2011), Righthavens Response (#100, filed May 9,
2011), and Democratic Undergrounds Replies (##107 and 108, filed May 20, 2011).
BACKGROUND
This dispute arises out of Democratic Undergrounds allegedly copyright infringing
conduct. About May 13, 2010, a Democratic Underground user posted a comment on Democratic
Undergrounds website which included a portion of a Las Vegas Review-Journal (LVRJ) article
about Nevada politics, particularly about the Tea Party effect on Sharon Angles senatorial
campaign (the Work). The posting included a link to the full article and the LVRJs website.
As such, Democratic Underground displayed this selection from the article on its website and
Righthaven claims that this infringed on the copyright.
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Righthaven claims that after the Work was posted on Democratic Undergrounds
website, it purchased the copyright to the Work from Stephens Media, the owner of the LVRJ,
along with the right to sue for past infringement. (Dkt. #102, Decl. of Steve Gibson, Ex. 1,
Copyright Assignment (hereinafter referred to as the Assignment).) Righthaven then registered
the copyright with the United States Copyright office. Thereafter, Righthaven sued Democratic
Underground alleging copyright infringement. Democratic Underground, in turn, filed a
counterclaim for a declaratory judgment of non-infringement against both Righthaven and
Stephens Media, which was not originally a party to this case. Righthaven has since filed a motion
for voluntary dismissal with prejudice due to an adverse fair use ruling by the Honorable Larry R.
Hicks, United States District Judge for this district (Righthaven is appealing that decision),
Stephens Media has filed a motion to dismiss or strike the counterclaim and a partial joinder to
Righthavens motion, and Democratic Underground has filed a motion for summary judgment on
Righthavens claim.
After these motions were fully briefed, Stephens Media disclosed to Democratic
Underground the Strategic Alliance Agreement (SAA) between Stephens Media and
Righthaven. The SAA defines their relationship and governs all future copyright assignments
between them (including the assignment at issue here). (Dkt. #79, Supplemental Mem. Ex. 1,
SAA, dated Jan. 18, 2010.) After learning the details of this agreement, Democratic Underground
sought leave to file a supplemental memorandum addressing this newly discovered evidence and
its effect on the outstanding motions. The Court allowed the supplemental briefing as it too
considered the SAA highly relevant to Righthavens standing in this and a multitude of other
pending Righthaven cases. After considering the supplemental brief and for the reasons discussed
below, the Court dismisses Righthaven for lack of standing and, therefore, denies both
Righthavens motion and Democratic Undergrounds motion as moot. The Court also denies
Stephens Medias motion.
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DISCUSSION
I. Righthavens Standing to Assert Copyright Claims
As stated above, before the Court are two motions to dismiss and a motion for
summary judgment. However, the Court must first address the supplemental briefing addressing
the SAA and the question of Righthavens standing to pursue this copyright infringement claim.
The Court will then address the outstanding motions.
A. Background - The Strategic Alliance Agreement
Months prior to purportedly assigning the Work to Righthaven, Stephens Media
and Righthaven signed a Strategic Alliance Agreement governing future copyright assignments
between them. (Dkt. #79, Ex. 1, SAA, dated Jan. 18, 2010.) The SAA details the relationship
between Righthaven and Stephens Media, explains the rights and responsibilities of each party,
and limits and defines future copyright assignments between them. (See generally, id.) As such, it
limits and explains the intent behind the Assignment, which was executed in July 2010.
Critically, the SAA expressly denies Righthaven any rights from future assignments
(including the Assignment of the Work) other than the bare right to bring and profit from copyright
infringement actions. This conclusion is clearly expressed in Section 7.2 of the SAA:
7.2 Despite any such Copyright Assignment, Stephens Media shall
retain (and is hereby granted by Righthaven) an exclusive license to
Exploit the Stephens Media Assigned Copyrights for any lawful
purpose whatsoever and Righthaven shall have no right or
license to Exploit or participate in the receipt of royalties from
the Exploitation of the Stephens Media Assigned Copyrights
other than the right to proceeds in association with a Recovery.
To the extent that Righthaven's maintenance of rights to pursue
infringers of the Stephens Media Assigned Copyrights in any manner
would be deemed to diminish Stephens Media's right to Exploit the
Stephens Media Assigned Copyrights, Righthaven hereby grants an
exclusive license to Stephens Media to the greatest extent permitted
by law so that Stephens Media shall have unfettered and exclusive
ability to Exploit the Stephens Media Assigned Copyrights. . . .
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(Id., Section 7.2 (bold emphasis added, italicization in original)). The plain and simple effect of
this section was to prevent Righthaven from obtaining, having, or otherwise exercising any right
other than the mere right to sue as Stephens Media retained all other rights. Even Righthavens
right to sue is not absolute. The SAA gives Stephens Media the right to prevent Righthaven from
suing an alleged copyright infringer for various specific reasons, including that the lawsuit might
result in an adverse result to Stephens Media. (Id., Section 3.3.) Other sections also give
Stephens Media a right to reversion and other rights which, collectively, destroy Righthavens
supposed rights in the Work. (See generally, id.) Now that the SAA has shed light upon
Righthavens true interest in the copyright to the Work, Democratic Underground asserts that
Righthaven lacks standing to maintain this lawsuit.
B. Legal Standard
Pursuant to Section 501(b) of the 1976 Copyright Act, 17 U.S.C. 101, et. seq.,
(the Act) only the legal or beneficial owner of an exclusive right under copyright law is entitled,
or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc., 402 F.3d 881, 884
(9th Cir. 2005) (en banc). In so holding, the Ninth Circuit followed the Second Circuits decision
in Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982), superseded by rule
and statute on other grounds. See also, ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d
971, 980 (2d Cir. 1991) (citing Eden Toys, the Copyright Act does not permit copyright holders to
choose third parties to bring suits on their behalf.) Section 106 of the Act defines and limits the
exclusive rights under copyright law. Id. at 88485. While these exclusive rights may be
transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is
not one of the exclusive rights. Id. Since the right to sue is not one of the exclusive rights,
transfer solely of the right to sue does not confer standing on the assignee. Id. at 890. One can
only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the
copyright. See id. Further, to obtain a right to sue for past infringement, that right must be
expressly stated in the assignment. See generally, id.
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C. Analysis
1. Contract Construction
Righthaven argues that the SAAs provisions, which necessarily include Section
7.2, do not alter the unambiguous language of the Assignment or limit the rights it obtained from
Stephens Media in the Assignment. This conclusion is flagrantly falseto the point that the claim
is disingenuous, if not outright deceitful. The entirety of the SAA was designed to prevent
Righthaven from becoming an owner of any exclusive right in the copyright. . . ., Silvers, 402
F.3d at 886 (emphasis in original), regardless of Righthaven and Stephens Medias post hoc,
explanations of the SAAs intent or later assignments, (see generally Dkt. #101, Decl. of Mark A.
Hineuber; Dkt. #102, Decl. of Steven A. Gibson). Prior to the Assignment, Stephens Media
possessed all of the exclusive rights to the Work and, therefore, the right to sue. Because the SAA
limited the language of the Assignment, the Assignment changed nothing save for Righthavens
claim to have the right to sue. The companies current attempt to reinterpret the plain language of
their agreement changes nothing. In reality, Righthaven actually left the transaction with nothing
more than a fabrication since a copyright owner cannot assign a bare right to sue after Silvers. To
approve of such a transaction would require the Court to disregard the clear intent of the
transaction and the clear precedent set forth by the en banc Ninth Circuit in Silvers.
2. Stephens Media and Righthavens Intent
Righthaven contends that the Court should construe the SAA to grant Righthaven
whatever rights are necessary for it to have standing in a copyright infringement action. First,
Righthaven argues that the Court should construe the contract in this manner because in situations
where a contract is ambiguous, the Court should look to the parties intent. Sheehan & Sheehan v.
Nelson Malley and Co., 117 P.3d 219, 22324 (Nev. 2005). Accordingly, Righthaven argues that
the plain intent of the SAA is to give Righthaven all rights necessary to bring a copyright
infringement action. The Court, however, disagrees with Righthavens premise because the SAA
is not ambiguous. Righthaven and Stephens Media went to great lengths in the SAA to be sure
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that Righthaven did not obtain any rights other than the bare right to sue. Thus, the Court finds
that the plain language of the SAA conveys the intent to deprive Righthaven of any right, save for
the right to sue alleged infringers and profit from such lawsuits. As such, the SAA is not
ambiguous and the Court shall not read any ambiguity into it.
Second, Righthaven argues that Section 15.1 of the SAA gives the Court authority
to correct any provision of the SAA that is deemed void or unenforceable to approximate the
manifest intent of the parties. The problem is that this argument requires a provision of the SAA
to be void or unenforceable. However, Righthavens problem is not that any provision of the SAA
is void or unenforceable but that the SAA simply does not grant Righthaven any of the exclusive
rights defined in Section 106 of the Act required for standing. Therefore, the SAA is not void or
unenforceable, it merely prevents Righthaven from obtaining standing to sue from the Assignment.
Accordingly, the Court need not and shall not amend or reinterpret the SAA to suit Righthavens
current desires.
3. Righthaven and Stephens Medias Amendment to the SAA
Notwithstanding the actual transaction that occurred, Righthaven argues that the
amendment it executed with Stephens Media on May 9, 2011, the day that they filed their response
to the supplemental memorandum validates or fixes any possible errors in the original SAA that
would prevent Righthaven from having standing in this matter. (Dkt. #102, Gibson Decl. Ex. 3,
Clarification and Amendment to SAA.) However, this amendment cannot create standing because
[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the
complaint is filed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992) (quoting
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)) (emphasis in Lujan).
Although a court may allow parties to amend defective allegations of jurisdiction, it may not allow
the parties to amend the facts themselves. Newman-Green, 490 U.S. at 830. As an example, a
party who misstates his domicile may amend to correctly state it. This is an amendment of the
allegation. However, that party is not permitted to subsequently move in order to change his
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domicile and amend accordingly. This would be an amendment of the jurisdictional facts, which
is not allowed. See id. Here, Righthaven and Stephens Media attempt to impermissibly amend the
facts to manufacture standing. Therefore, the Court shall not consider the amended language of
the SAA, but the actual transaction that took place as of the time the complaint was filed.
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Regardless of this legal principle, Righthaven argues that courts routinely allow
parties to a copyright transfer to subsequently clarify or amend their agreements in order to express
their original intent to grant the assignee the right to sue for infringement. Righthavens assertion
is not entirely wrong, but the cases Righthaven cites in support of its proposition are all
distinguishable as they deal with matters significantly different than those presently before the
Court. For instance, Righthaven cites multiple cases where courts allowed an oral assignment
made prior to initiation of a lawsuit to be confirmed in writing after the initiation of the lawsuit.
See Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 591 (7th Cir. 2003) (allowing an oral
assignment to be confirmed in a later writing). These cases are all distinguishable in that the
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assignor and assignee in these cases had agreements to transfer the necessary, exclusive rights
prior to the initiation of a lawsuit. The only thing lacking was the written document necessary for
a court to recognize the transfer. In each of these cases, the courts merely gave effect to what the
parties had actually done, i.e. recognized rights already actually transferred. Here, Righthaven
does not ask the Court to recognize an oral transfer with a late made written memorandum of the
deal, but to fundamentally rewrite the agreement between Righthaven and Stephens Media to grant
Righthaven rights that it never actually received.
The Court does not determine whether or not the amended SAA would transfer sufficient rights to
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Righthaven for it to have standing in suits filed after amendment as the Court need not make that determination
to rule on these motions. Nonetheless, the Court expresses doubt that these seemingly cosmetic adjustments
change the nature and practical effect of the SAA.
See also, Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995)
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([A] copyright owners later execution of a writing which confirms an earlier oral agreement validates the
transfer ab initio.); Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1532 (11th Cir. 1994);
Sabroso Publg, Inc. v. Caiman Records Am., Inc., 141 F. Supp. 2d 224, 228 (D.P.R. 2001).
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Righthaven cites three other district court cases from other circuits which deal with
matters other than oral assignments later ratified by written agreements. First is a district court
case, Intimo Inc. v. Briefly Stated, Inc., 948 F. Supp. 315 (S.D.N.Y. 1996), wherein the court
allowed the parties to the assignment agreement to amend the agreement to include the right to sue
for pre-assignment copyright violations. Notably, the plaintiff in that case would have maintained
standing as not all claims were based on pre-assignment copyright violations. Id. at 31819.
Nonetheless, the Intimo court allowed amendment to correct what it found was merely an
oversight on the part of the parties because the agreement was silent on pre-assignment copyright
violations despite the parties intent to transfer the right to sue on those violations. Here,
Righthaven and Stephens Media may have wanted Righthaven to be able to sue, but the SAA was
anything but silent in making sure that Stephens Media retained complete control over the Work
rather than actually effectuate the necessary transfer of rights. The entirety of the SAA is
concerned with making sure that Righthaven did not obtain any rights other than the right to sue.
This careful exclusion of rights made even that transfer ineffectual under Silvers.
The other two cases are also distinguishable. The second case, Infodek, Inc. v.
Meredith-Webb Printing Co., Inc., 830 F. Supp. 614 (N.D. Ga. 1993), is based on facts largely
similar to Intimo and the same analysis distinguishes it from the present case. The third is an
unreported district court case, Gondinger Silver Art Co., Ltd. v. Intl Silver Co., No. 95 CIV. 9199,
1995 WL 702357 (S.D.N.Y. Nov. 28, 1995), that dealt with a later assignment because there was a
dispute as to whether the relevant work was a work made for hire or whether the plaintiff was a co-
author of the work. The Gondinger court did not expressly determine the issue, finding that it was
irrelevant as there was another basis for standing. Id. at *45. In sum, not one of the cases cited
by Righthaven persuade, much less require, the Court to find standing based on Righthaven and
Stephens Medias Amended SAA.
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4. Democratic Undergrounds Standing to Challenge the SAA
Righthaven also contends that Democratic Underground lacks standing to challenge
the validity of the SAA. However, Democratic Underground does not actually attack the SAAs
validity, Democratic Underground only contends that the SAA prevented the Assignment from
transferring the rights Righthaven and Stephens Media currently argue the Assignment transferred.
In essence, Democratic Underground simply argues that, under the SAA, the Assignment only
transferred one particular right, which failed to have the effect Righthaven wishes it had.
Democratic Underground does not contest the SAAs validity or argue that it should be undone in
any way. Further, the Sylvers court necessarily allowed the defendant to challenge whether the
necessary rights were transferred from the rights holder to the plaintiff in that action. Otherwise
the Ninth Circuit would not have been able address the plaintiffs lack of standing in Silvers and
hold that a mere right to sue is insufficient to bring a copyright infringement action.
5. Prior Rulings within this District
Finally, Righthaven contends that multiple courts within this district have already
determined that Righthaven has standing to bring claims for past infringement under the Silver
standard based on the plain language of the copyright assignment. At best, this argument is
disingenuous. As the undersigned issued one of the orders Righthaven cites for this argument, the
undersigned is well aware that Righthaven led the district judges of this district to believe that it
was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the
true nature of the transaction by disclosing the SAA or Stephens Medias pecuniary interests. As
the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually
transferring them to Righthaven regardless of Righthavens and Stephens Medias current
contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of
interested parties, despite Stephens Medias right to proceeds from these lawsuits. (Dkt. #79, Ex.
1, SAA Section 5 (granting Stephens Media a fifty percent interest in any recovery, minus costs).)
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Since those orders were tainted by Righthavens failure to disclose the SAA and Stephens Medias
true interest, those decisions are not persuasive and do not support standing here.
D. Righthaven Lacks Standing to Bring this Action
Because the SAA prevents Righthaven from obtaining any of the exclusive rights
necessary to maintain standing in a copyright infringement action, the Court finds that Righthaven
lacks standing in this case. Accordingly, the Court dismisses Righthaven from this case. However,
Righthaven requests that upon such a finding, the Court grant it leave to join Stephens Media as a
plaintiff to cure the jurisdictional defect. Adding Stephens Media, however, would not cure the
jurisdictional defect as to Righthaven. Eden Toys, 697 F.2d at 32 n.3 (While [Federal Rule of
Civil Procedure] 17(a) ordinarily permits the real party in interest to ratify a suit brought by
another party, the Copyright Law is quite specific in stating that only the owner of an exclusive
right under a copyright may bring suit. (internal citations and quotations omitted).) Also, as
Stephens Media has already been brought into this suit as a counter-defendant to a declaratory
judgment claim, the Court finds it unnecessary to join Stephens Media as a plaintiff. If Stephens
Media wishes to assert claims against Democratic Underground, it may do so separately.
II. Righthavens Motion and Democratic Undergrounds Motion are Both Moot
Because the Court has dismissed Righthaven for lack of standing, the Court denies
both Righthavens motion for voluntary dismissal with prejudice and Democratic Undergrounds
motion for summary judgment on Righthavens claim as moot. Since Righthaven has been
dismissed, its complaint is also dismissed. This, of course, does not affect Democratic
Undergrounds right to bring a motion for attorney fees under the Act. Also, the counterclaim
against Stephens Media remains and so the Court now turns its attention to Stephens Medias
motion.
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III. Stephens Medias Motion to Dismiss or Strike
A. Legal Standard
1. Motion to Dismiss Standard
In this action, as in all actions before a federal court, the necessary and
constitutional predicate for any decision is a determination that the court has jurisdictionthat is
the powerto adjudicate the dispute. Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998).
The purpose of a complaint is two-fold: to give the defendant fair notice of the basis for the courts
jurisdiction and of the factual basis of the claim. See Fed. R. Civ. P. 8; Skaff v. Meridien North
Am. Beverly Hills, LLC., 506 F.3d 832, 843 (9th Cir. 2007). Rule 12(b)(1) of the Federal Rules of
Civil Procedure allows defendants to seek dismissal of a claim or action for a lack of subject
matter jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if the complaint, considered in
its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction.
In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981, 98485 (9th
Cir. 2008). Although the defendant is the moving party in a motion to dismiss brought under Rule
12(b)(1), the plaintiff is the party invoking the courts jurisdiction. As a result, the plaintiff bears
the burden of proving that the case is properly in federal court. McCauley v. Ford Motor Co., 264
F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936)).
Attacks on jurisdiction pursuant to Rule 12(b)(1) can be either facial, confining the
inquiry to the allegations in the complaint, or factual, permitting the court to look beyond the
complaint. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). In
a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient
on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes
the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Safe
Air for Everyone v. Myer, 373 F.3d 1035, 1039 (9th Cir. 2004). A factual attack made pursuant
to Rule 12(b)(1) may be accompanied by extrinsic evidence. Whitethorn v. F.C.C., 235 F. Supp.
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2d 1092, 109596 (D. Nev. 2002) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.
1989). Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered
in its entirety, fails to allege facts that are sufficient to establish subject matter jurisdiction. In re
Dynamic Random Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981, 98485 (9th Cir.
2008).
2. Motion to Strike Standard
Under Rule 12(f) a court may strike from a pleading any redundant, immaterial,
impertinent, or scandalous matter. Matter is immaterial if it has no bearing on the controversy
before the court. In re 2TheMart.com, Inc Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).
Allegations are impertinent if they are not responsive to the issues that arise in the action and
that are admissible as evidence. Id. Scandalous matter is that which casts a cruelly derogatory
light on a party or other person. Id. A court need not wait for a motion from the parties; it may act
on its own to strike matter from a pleading. Fed. R. Civ. P. 12(f)(1).
B. Analysis
Stephens Medias motion essentially relies on two separate arguments for its
position that there is no justiciable case or controversy: (1) that Stephens Media assigned all of the
rights in and to the Work to Righthaven, thus negating the possibility of any case or controversy
between Stephens Media and Democratic Underground, and (2) that Democratic Undergrounds
counterclaim will necessarily be adjudicated by a decision on the original complaint and, therefore,
should be stricken. The Court dispelled Stephens Medias first argument in the analysis above.
Stephens Media expressly avoided transferring the exclusive rights to the Work to Righthaven by
neutering future assignments in the SAA. As to Stephens Medias second argument, setting aside
the fact that Stephens Media was never a party to Righthavens complaint, that argument is now
moot as the Court has dismissed Righthavens complaint. Since the complaint has been dismissed,
the issues raised by the counterclaim can only be adjudicated by litigating the counterclaim, not the
now defunct complaint.
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1. Justiciable Case or Controversy
Stephens Medias principle contention for why there is no justiciable case or
controversy between Stephens Media and Democratic Underground relied on the Assignment of
rights to Righthaven. Though the Court has refuted this particular argument, the Court will,
nonetheless, quickly address the case or controversy requirement for a declaratory judgment action
as it still pertains to this case.
The Supreme Court has held that declaratory judgment claims must arise from
disputes that are definite and concrete, touching the legal relations of parties having adverse
legal interests, . . . real and substantial, and beget specific relief through a decree of a
conclusive character, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. MedImmune, Inc. v. Genentech, Inc. 549 U.S. 118, 127 (2007).
Nonetheless, a party need not bet the farm and always actually engage in planned conduct that
would result in threatened legal action before bringing a declaratory judgment suit. Id. at 13334.
Contrary to its assertions in its moving papers, Stephens Media has threatened
Democratic Underground with litigation because, according to the SAA, Stephens Media approved
or consented to suit against Democratic Underground. (Dkt. #79, Ex. 1, SAA Section 3.3.)
Additionally, Stephens Medias then CEO, Sherman Frederick, generally threatened potential
defendants that he would send his little friend called Righthaven after them. (Dkt. #13, Answer
and Countercl. 33.) Here, Stephens Media actually did send Righthaven after Democratic
Underground. Further, Democratic Underground desires to re-post the allegedly infringing
material to maintain a full archive of prior posts on its website. This could result in new copyright
infringement litigation against Democratic Underground if the Court does not declare that the post
did not infringe the copyright in the first instance. This threat of suit is sufficiently real and
substantial that an actual case and controversy exists between these parties and warrants a
declaratory judgment suit. Accordingly, and because the Court dismissed Righthaven and its
complaint, the Court denies Stephens Medias motion.
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AO 72
(Rev. 8/82)
IV. Order to Show Cause
As shown in the preceding pages, the Court believes that Righthaven has made
multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will
only focus on the most factually brazen: Righthavens failure to disclose Stephens Media as an
interested party in Righthavens Certificate of Interested Parties. (Dkt. #5.) Rule 7.1-1 of the
Local Rules of Practice for the District of Nevada requires parties to disclose all persons,
associations of persons, firms, partnerships or corporations (including parent corporations) which
have a direct, pecuniary interest in the outcome of the case. This Local Rule requires greater
disclosure than Federal Rule 7.1, which only requires non-governmental corporate parties to
disclose parent corporations or corporations owning more than 10% of the partys stock. Frankly,
if receiving 50% of litigation proceeds minus costs (Dkt. #79, SAA Section 5) does not create a
pecuniary interest under Local Rule 7.1-1, the Court isnt sure what would.
Making this failure more egregious, not only did Righthaven fail to identify
Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to
disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this
District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2)
weeks from the date of this order, why it should not be sanctioned for this flagrant
misrepresentation to the Court.
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AO 72
(Rev. 8/82)
CONCLUSION
Accordingly, and for good cause appearing,
IT IS HEREBY ORDERED that Righthaven is dismissed from this case for lack of
standing. As such, Righthavens complaint is dismissed in its entirety.
IT IS FURTHER ORDERED that Righthavens Motion for Voluntary Dismissal
with Prejudice (#36) is DENIED as moot.
IT IS FURTHER ORDERED that Stephens Medias Motion to Dismiss or Strike
(#38) is DENIED.
IT IS FURTHER ORDERED that the Democratic Undergrounds Motion for
Summary Judgment (#45) is DENIED as moot.
IT IS FURTHER ORDERED that Righthaven show cause, in writing, no later than
two (2) weeks from the date of this order, why it should not be sanctioned.
Dated: June 14, 2011.
____________________________________
ROGER L. HUNT
Chief United States District Judge
16

Exhibit 2

Order of June 20, 2011
Righthaven v. Hoehn

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DISTRICT OF NEVADA
* * *
RIGHTHAVEN, LLC,
Plaintiff,
v.
WAYNE HOEHN,
Defendant.

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2:11-CV-00050-PMP-RJJ
O R D E R
Presently before the Court is Defendants Motion to Dismiss for Lack of Subject
Matter Jurisdiction (Doc. #16), filed on April 17, 2011. Plaintiff filed a Response (Doc.
#23), on May 9, 2011. Defendant filed a Reply (Doc. #26), on May 15, 2011. Also before
the Court is Defendants Motion for Summary Judgment (Doc. #8), filed on February 11,
2011. Plaintiff filed a Response (Doc. #13), on March 7, 2011. Defendant filed a Reply
(Doc. #14), on March 24, 2011. This Court held a hearing on the Motion for Summary
Judgment on May 3, 2011. (Mins. of Proceedings (Doc. #19).)
I. BACKGROUND
This is a copyright infringement action brought by Plaintiff Righthaven LLC
(Righthaven) against Defendant Wayne Hoehn (Hoehn), who is and was at all relevant
times a registered user and content contributor to the website <madjacksports.com> (the
Website). (Pl.s Resp. To Mot. For Summ. J. [Resp.] (Doc. #13).) Hoehn has never
been employed by the Websites owner and operator. (Id.) On or about November 29,
2010, Hoehn displayed an unauthorized reproduction of a copyrighted literary work entitled
Case 2:11-cv-00050-PMP -RJJ Document 28 Filed 06/20/11 Page 1 of 17 2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53-2 Page 2 of 18
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Public Employee Pensions. We Cant Afford Them (the Work) as part of the content
contributed by him to the Website. (Id.) In his reproduction, Hoehn attributed the source of
the Work to the Las Vegas Review Journal (LVRJ). (Compl. (Doc. #1).) Hoehn avers
that he did not post the Work for profit and that there was no mechanism for him to profit
by posting the Work on the website. (Def.s Mot. For Summ. J. [MSJ] (Doc. #8), Hoehn
Decl., Ex. A.) Hoehn states he removed the Work from the Website on January 6, 2011.
(Id.)
At the time of the posting, Righthaven was not the owner of the Work, rather the
Work was owned by Stephens Media. (Gibson Decl. (Doc. #24), Ex 1.) In January 2010,
Righthaven and Stephens Media entered into the Strategic Alliance Agreement (the
SAA), governing the ongoing relationship between Righthaven and Stephens Media
regarding assignment of copyrights originally owned by Stephens Media. (Gibson Decl.)
Section 3.3 of the SAA governs the rights and responsibilities of Righthaven and Stephens
Media with respect to pursuing alleged infringers and states in part:
If Righthaven chooses in the Remediation Option Notice to not pursue
an Infringement Action (the Remediation Declination), then
Righthaven shall reassign the Assigned Copyright to Stephens Media
that is the subject of the Remediation Declination . . . .
Notwithstanding any other provision of this Agreement, Stephens
Media shall have the right to Notify Righthaven, within five (5)
Business Days after receipt of a respective Remediation Option Notice,
that Righthaven should not take any Infringement Action with respect
to a particular putative infringer as indicated in any Remediation
Option Notice (the Declination Notice) and upon receipt of a
Declination Notice, Righthaven shall not take any Infringement Action
with respect to the particular putative infringer set forth in any
Declination Notice; provided, however, that Stephens Media shall only
send any Declination Notice on a reasonable basis with the grounds of
reasonability being that a particular infringer is a charitable
organization, is likely without financial resources, is affiliated with
Stephens Media directly or indirectly, is a present or likely future
valued business relationship of Stephens Media or otherwise would be
a Person that, if the subject of an Infringement Action, would result in
an adverse result to Stephens Media.
(Gibson Decl., Ex. 2.)
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Section 7.2 of the SAA states in part:
Despite any such Copyright Assignment, Stephens Media Shall retain
(and is hereby granted by Righthaven) an exclusive license to Exploit
the Stephens Media Assigned Copyrights for any lawful purpose
whatsoever and Righthaven shall have no right or license to Exploit or
participate in the receipt of royalties from the Exploitation of the
Stephens Media Assigned Copyrights other than the right to proceeds
in association with a Recovery. To the extent that Righthavens
maintenance of rights to pursue infringers of the Stephens Media
Assigned Copyrights in any manner would be deemed to diminish
Stephens Medias right to Exploit the Stephens Media Assigned
Copyrights, Righthaven hereby grants an exclusive license to Stephens
Media to the greatest extent permitted by law so that Stephens Media
shall have unfettered and exclusive ability to Exploit the Stephens
Media Assigned Copyrights.
(Id.)
Section 8 of the SAA is titled Stephens Medias Right of Reversion. Section 8
states in part:
Stephens Media shall have the right at any time to terminate, in good
faith, any Copyright Assignment (the Assignment Termination) and
enjoy a right of complete reversion to the ownership of any copyright
that is subject of a Copyright Assignment. . . . In order to effect
termination of the [sic] any Copyright Assignment, Stephens Media
shall be required to provided Righthaven with thirty (30) days prior
written notice. Within thirty (30) days after receipt of termination of
the [sic] any Copyright Assignment, Righthaven shall commence
documentation to effect reassignment of the Stephens Media Assigned
Copyrights to Stephens Media.
(Id.)
On December 6, 2010, Stephens Media, the original owner of the Work, assigned
all rights, title, and interest in and to the Work, including the right to seek redress for all
past, present, and future infringements, to Plaintiff Righthaven (the Assignment).
(Gibson Decl.) The Assignment states in part:
Assignor hereby transfers, vests and assigns the work described in Exhibit A,
attached hereto and incorporated herein by this reference (the Work), to
Righthaven, subject to the Assignors rights of reversion, all copyrights requisite
to have Righthaven recognized as the copyright owner of the Work for purposes
of Righthaven being able to claim ownership as well as the right to seek redress
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for past, present and future infringements of the copyright, both accrued and
unaccrued, in and to the Work.

(Gibson Decl., Ex. 1.)
Plaintiff Righthaven brought the present suit against Hoehn on January 11, 2011,
based on Hoehns posting of the Work on the Website. (Compl. (Doc. #1).) The suit seeks
a permanent injunction prohibiting Hoehn from posting the Work and an award of statutory
damages.
On April 17, 2011, Hoehn filed a Motion to Dismiss for lack of subject matter
jurisdiction, arguing that Righthaven did not have the requisite standing to bring a copyright
infringement suit because it was not the owner of an exclusive right. On May 9, 2011,
Stephens Media and Righthaven entered into the Clarification and Amendment to Strategic
Alliance Agreement (the Clarification). (Gibson Decl., Ex. 3.) The Clarification states
that the intent of the parties when they entered into the SAA was to grant Stephens Media
a license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose
whatsoever without in any way hindering the right of Righthaven to seek redress for any
past, present or future infringements of such copyright. (Id.) The Clarification amends
section 7.2 of the SAA and replaces it with the following:
Automatically upon execution of a Copyright Assignment, Stephens
Media is granted a non-exclusive license to Exploit the Stephens
Media Assigned Copyright to the greatest extent permitted by law in
consideration for payment in the amount of One Dollar and Zero Cents
($1.00) per year to Righthaven as a license or royalty for each Stephens
Media Assigned Copyright as Consideration for the license granted
herein (the License Fee). Any License Fee required under this
amended and revised Section 7.2 shall be retroactive to the Effective
Date. In the event that Righthaven decides to Exploit or participate in
receipt of royalties from Exploitation of a Stephens Media Assigned
Copyright other than in association with a Recovery, Righthaven shall
give Stephens Media 30 days prior written notice. The parties
acknowledge that failure to provide such notice would be a material
breach of this Agreement and would cause Stephens Media irreparable
harm, remediable through injunctive relief, which Righthaven and
those asserting rights obtained from it shall have no right to oppose.
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(Id.)
Additionally, the Clarification amends section 8 of the SAA and replaces it with
sections 8.1 and 8.2, including the following:
At any time, within its sole discretion, Stephens Media shall have the
option, within 14 days of providing notice of the exercise of such
option, to purchase all right and title to the Stephens Media Assigned
Copyright in consideration for payment in the amount of Ten Dollars
and Zero Cents ($10.00) (Exercised Option).
(Id.) The Clarification states it is to be retroactively effective to the original date of the
SAA. (Id.)
Also on May 9, 2011, Righthaven filed the Declarations of Steven A. Gibson
(Gibson), CEO of Righthaven, and Mark Hinueber (Hinueber), General Counsel of
Stephens Media. (Gibson Decl.; Hinueber Decl. (Doc. #25).) Both Gibson and Hinueber
state that it was the parties intent to grant all ownership rights in the Work to Righthaven
together with the right to sue for all past, present, and future copyright infringement. (Id.)
Hinueber also states that it was not the intent of Stephens Media to divest or otherwise
impair Righthavens ability to file or otherwise maintain copyrighted infringement actions
based on content . . . specifically assigned to Righthaven through the license-back rights
described in the SAA. Rather it was [the parties] intent in this regard to acknowledge
Stephens Medias ability to continue to use the assigned content as a licensee. (Hinueber
Decl.)
Hoehn now moves to dismiss, arguing this Court does not have subject matter
jurisdiction over this matter because Righthaven does not own any exclusive rights in the
copyright necessary to bring suit. Hoehn further contends that the May 9, 2011
Clarification to the SAA does not correct these deficiencies and ultimately deprives
Righthaven of any exclusive rights in the assigned copyright. Righthaven responds that it
has standing to bring this suit, and in any event, the May 9, 2011 Clarification cures any
alleged defect in standing. Further, Righthaven argues the SAA reflects promises made
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between Righthaven and Stephens Media with regard to future transactions, but itself does
not cause an assignment of rights. Rather, Righthaven argues, the assignment of rights is
governed by the Assignment entered into on December 6, 2010.
Additionally, Hoehn moves for summary judgment, arguing that his use of the
Work is protected as fair use. Righthaven responds that summary judgment on fair use is
premature as Plaintiff has not been permitted to engage in discovery and, in any case,
Defendant fails to establish that his conduct is protected as fair use. Defendant replies that
Plaintiff was given the opportunity to engage in discovery and did not do so. Additionally,
Defendant states that because both parties agree as to the facts of the case, there is no
genuine issue of material fact and summary judgment is appropriate.
II. MOTION TO DISMISS FOR LACK OF JURISDICTION
To hear a case, a federal court must have subject matter jurisdiction over the
matter at hand. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Central to
the issue of subject matter jurisdiction is the issue of standing, requiring the party invoking
jurisdiction to establish actual or imminent harm. Id. at 560. The invoking party bears the
burden of establishing standing with the same burden of proof required at the successive
stages of the litigation. Id. at 561. If a court does not set a hearing on a motion to dismiss,
a plaintiff must make only a prima facie showing of jurisdictional facts through the
submitted materials in order to avoid a defendants motion to dismiss. Data Disc, Inc. v.
Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
[O]nly copyright owners and exclusive licensees of copyright may enforce a
copyright. Sybersound Records v. UAV Corp., 517 F.3d 1137, 1144 (9th Cir. 2008).
Exclusive rights in a copyright are enumerated in 17 U.S.C. 106 and include the exclusive
rights:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work; [and]
(3) to distribute copies or phonorecords of the copyrighted work to the public by
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sale or other transfer of ownership, or by rental, lease, or lending.
Id. The right to sue for an accrued claim for infringement is not an exclusive right under
106. Silvers v. Sony Pictures Entmt, Inc., 402 F.3d 881, 884 (2005). Exclusive rights
in a copyright may be transferred and owned separately, but . . . [there are] no exclusive
rights other than those listed in 106. Id. at 885. While the right to sue is not an exclusive
right, it may be transferred to another party if accompanied with an exclusive right. Id. at
890 n.1. Additionally, the right to sue for past infringement can be transferred to another
party so long as it is expressly included in the assignment along with an exclusive right. Id.
at 889-90.
Plaintiff Righthaven alleges it has presented evidence in the form of the
Assignment that Stephens Media transferred to Righthaven exclusive rights in the Work
coupled with the right to sue based on infringement of the copyrighted Work. Additionally,
Righthaven argues that to the extent the Court finds the Assignment ambiguous, the Court
should look to the parties intent, evidenced by the Gibson and Hinueber declarations, that
the parties intended to transfer the exclusive rights in the Work along with the right to sue
based on past, present, and future infringement of the copyrighted Work.
Ownership of the exclusive right to reproduce the copyrighted work is necessary
to bring a suit for infringement based on reproduction of the copyrighted work.
Sybersound, 517 F.3d at 1144. The language of the Assignment transfers all copyrights
requisite to have Righthaven recognized as the copyright owner of the Work for purposes of
Righthaven being able to claim ownership as well as the right to seek redress for past,
present and future infringements of the copyright. Additionally, Hinueber states that
Stephens Media assigned all rights, title and interest in and to the Work, including the right
to seek redress for all past, present and future infringements of the Work to Righthaven on
December 6, 2010. (Hinueber Decl.)
///
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However, the Assignment cannot be read in isolation. The SAA governs the
parties relationship with respect to Copyright Assignments. (Gibson Decl., Ex. 2 at 7.1.)
Additionally, the blank form Assignment is incorporated as an attachment to the SAA,
indicating that the two documents together govern the transfer of Copyright Assignments
rather than the Assignment alone. (Id., Ex. 1.) The Assignment together with the SAA are
unambiguous.
The Court finds the SAA in its original form qualifies the Assignment with
restrictions or rights of reversion, such that in the end, Righthaven is not left with
ownership of any exclusive rights. Under Section 3.3 of the SAA, Righthaven is obligated
to reassign the rights to the Work if it does not pursue an infringement action within 60 days
of the Assignment. Additionally, this section gives Stephens Media the right to direct
Righthaven not to pursue an action against an alleged infringer. Further, under Section 7.2,
Righthaven has no right of license to Exploit or participate in the receipt of royalties from
the Exploitation of the Stephens Media Assigned Copyrights . . . . Stephens Media has the
unilateral right, at any time, to terminate the Copyright Assignment and enjoy a complete
right of reversion. These carveouts deprive Righthaven of any of the rights normally
associated with ownership of an exclusive right necessary to bring suit for copyright
infringement and leave Righthaven no rights except to pursue infringement actions, a right
which itself is subject to Stephens Medias veto.
In Nafal v. Carter, the court faced a similar disconnect between the parties label
of a transfer of exclusive rights in a copyright assignment and the reality of their transfer.
540 F. Supp. 2d 1128 (C.D. Cal. 2007). The Nafal court found that despite an assignment
purporting to give the plaintiff an undivided one-half (50%) of [assignors] rights, title and
interest [in the work], this label could not subvert summary judgment where the reality of
the assignment left the plaintiff with little to no rights in the copyrighted work. Id. at 1141-
42. The court found that the assignment did not make the plaintiff a co-exclusive
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licensee with the right to sue for infringement because the assignment gave the plaintiff no
discretion in deciding when to sue an alleged infringer; the plaintiffs interest in the
copyrighted work would be terminable if the plaintiff did not bring an infringement lawsuit
within a certain time period; nearly every effort by the plaintiff to exploit the copyrighted
work had to be approved in advance; and the plaintiff did not offer facts that would permit
the inference that he had rights to do anything beyond negotiating compulsory mechanical
licenses, which does not confer Plaintiff with the power to exploit any exclusive rights. Id.
1
at 1143.
Although the Court is evaluating Righthavens standing at the dismissal stage,
rather than summary judgment as in Nafal, similar factors lead the Court to the same
conclusion. Stephens Media retains discretion over when to bring suit for infringement and
Righthavens rights will be terminated if it does not bring suit within a specified time
period. Righthaven has no right to exploit or profit from the work in any way other than
that associated with recovery from an infringement action. The Copyright Assignment is
fully terminable by Stephens Media at any time. Righthaven has no meaningful rights other
than the bare right to sue, something that is not transferable under Silvers. 402 F.3d at 884.
Similarly, in Lahiri v. Universal Music & Video Distrib. Corp., the Court found
that an assignment that used ownership language but was too restrictive to convey such a
right could not transfer an exclusive right. 606 F.3d 1216, 1222 (9th Cir. 2010). The
assignment the plaintiff relied on to establish a right in the copyrighted work transferred
only an interest in the recovery based on copyright infringement and no interest in the work
itself. Here, the rights in the copyrighted Work retained by Stephens Media deprive
Righthaven of everything except the right to pursue alleged infringers, a right that is still
A mechanical license grants third parties the non-exclusive right to reproduce a musical
1
composition on phonorecords, provided that the copyright owner has already authorized the use of such
work, during the manufacture and sale of phonorecords. Nafal, 540 F. Supp. 2d at 1143.
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subject to Stephens Medias oversight. Accordingly, Righthaven does not possess an
exclusive right in the Work and therefore does not have standing to bring a suit for
infringement.
Even assuming that the May 9, 2011 Clarification can change the jurisdictional
facts as they existed at the time of the filing of the suit, it still does not correct the
deficiencies with respect to lack of standing. The May 9, 2011 Clarification offers recitals
stating the parties intent to convey all ownership rights in and to any identified Work to
Righthaven . . . so that Righthaven would be the rightful owner of any identified Work and
entitled to seek copyright registration. However, it does not provide Righthaven with any
exclusive rights necessary to bring suit.
The May 9, 2011 Clarification provides Righthaven with only an illusory right to
exploit or profit from the Work, requiring 30 days advance notice to Stephens Media before
being able to exploit the Work for any purpose other than bringing an infringement action.
Stephens Media has, in its sole discretion, the option to repurchase the Copyright
Assignment for a nominal amount within 14 days, thereby retaining the ability to prevent
Righthaven from ever exploiting or reproducing the Work. Stephens Medias power to
prevent Righthaven from exploiting the Work for any purpose other than pursuing
infringement actions is further bolstered by the Clarifications provision that every
exploitation of the Work by Righthaven other than pursuing an infringement action without
first giving Stephens Media notice constitutes irreparable harm to Stephens Media.
Stephens Media may obtain injunctive relief against Righthaven to prevent such
irreparable harm and, pursuant to the Clarification, Righthaven has no right to oppose
Stephens Medias request for injunctive relief. Accordingly, Righthaven does not have any
exclusive rights in the Work and thus does not have standing to bring an infringement
action. The Court therefore will grant Defendants Motion to Dismiss for lack of standing.
///
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III. SUMMARY JUDGMENT
Assuming Righthaven was found to have standing to bring this action, the Court
nonetheless finds Hoehn is entitled to summary judgment on the ground of fair use of the
Work. Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories and admissions, and affidavits demonstrate there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A fact is material if it might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
Id. Where a party fails to offer evidence sufficient to establish an element essential to its
case, no genuine issue of material fact can exist, because a complete failure of proof
concerning an essential element of the nonmoving partys case necessarily renders all other
facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The party seeking summary judgment bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings . . . which it believes demonstrate the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the non-moving party to go beyond the
pleadings and set forth specific facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The
Court views all evidence in the light most favorable to the non-moving party. County of
Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
Under Federal Rule of Civil Procedure 56(b) a party may file a motion for
summary judgment at any time until 30 days after the close of all discovery. If a
nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may defer consideration of a motion or
deny it, allow the parties time to complete additional discovery, or grant other appropriate
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relief. Fed. R. Civ. P. 56(d). The party requesting additional time to conduct discovery to
oppose summary judgment must present an affidavit stating the specific facts it hopes to
elicit from further discovery, that the facts exist, and that the facts are essential to oppose
summary judgment. Family Home & Fin. Ctr, Inc. v. Fed. Home Loan Mortg. Corp., 525
F.3d 822, 827 (9th Cir. 2008). If the nonmovant does not satisfy these requirements, the
court may proceed to rule on summary judgment without granting additional discovery. Id.
Fair use is a defense to use of a copyrighted work which otherwise would be
copyright infringement if the work is used for purposes such as criticism, comment, news
reporting, teaching . . ., scholarship, or research. 17 U.S.C. 107. Factors to be
considered when determining fair use include-
(1) the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.
Id.
Fair use is evaluated on a case-by-case basis. Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 577 (1994). Fair use is a mixed question of law and fact. If there are
no genuine issues of material fact, . . . and a reasonable trier can reach only one conclusion,
a court may conclude as a matter of law whether the challenged use qualifies as a fair use of
the copyrighted work. Los Angeles News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119,
1120 (9th Cir. 1997) (quotation omitted). Where material facts are not in dispute, fair use
is appropriately decided on summary judgment. Mattel, Inc. v. Walking Mountain Prods.,
353 F.3d 792, 800 (9th Cir. 2003).
As an initial matter, Righthaven argues that summary judgment is premature
because Righthaven has not conducted discovery. Hoehn responds that Righthaven has had
the opportunity to conduct discovery and has failed to do so. Additionally, Hoehn argues
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that all facts necessary to decide summary judgment are undisputed and before the Court.
Hoehns motion complies with the time strictures set by Rule 56(b). Righthaven
has not presented an affidavit showing the specified reasons it needs to conduct discovery to
oppose summary judgment, or, the types of facts it hopes to elicit, that these facts exist, and
that these facts are necessary to oppose summary judgment. Accordingly, the Court will
deny additional discovery on this matter and decide Hoehns motion on the facts before the
Court.
1) The Purpose and Character of the Use
The first factor of fair use is the purpose and character of the use. 17 U.S.C.
107. Noncommercial, nonprofit use is presumptively fair. Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 449 (1984). The crux of the profit/nonprofit
distinction is not whether the sole motive of the use is monetary gain but whether the user
stands to profit from exploitation of the copyrighted material without paying the customary
price. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985). This
factor focuses on whether the new work merely replaces the object of the original creation
or instead adds a further purpose or different character. In other words, this factor asks
whether and to what extent the new work is transformative. A & M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (quotation omitted). If the character of
the use differs from the original usage, the use may be considered fair. Worldwide Church
of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117 (9th Cir. 2000) (duplicating a
churchs religious book for use by a different church was not transformative and was not
protected by fair use). However, mere transmission of a copyrighted work in a different
medium is likely not fair use. Napster, 239 F.3d at 1015.
It is undisputed that Hoehn did not and could not profit from posting the Work.
Under Sony, noncommercial/nonprofit use is presumptively fair. Additionally, this factor
focuses on the purpose or character of the new work. Here, Hoehn posted the Work as part
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of an online discussion. Hoehn avers he posted the Work to foster discussion in a specific
interactive website forum regarding the recent budget shortfalls facing state governments.
This purpose is consistent with comment, for which 17 U.S.C. 107 provides fair use
protection. There is no genuine issue of material fact that Hoehns noncommercial use of
the Work for comment favors a finding that the use was fair.
2) The Nature of the Copyrighted Work
The second factor is the nature of the copyrighted work. 17 U.S.C. 107.
Generally, creative works are closer to the core of intended copyright protection than
informational and functional works. Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc.,
109 F.3d 1394, 1402 (9th Cir. 1997) (quotation omitted). The scope of fair use is greater
when informational as opposed to creative works are involved. Hustler Magazine Inc. v.
Moral Majority Inc., 796 F.2d 1148, 1153-54 (9th Cir. 1986). The types of works deemed
to be creative to tilt this factor against a finding of fair use have been complete works of
fiction, song lyrics, and Barbie Dolls. Dr. Seuss, 109 F.3d at 1402; Leadsinger, Inc. v.
BMG Music Publg, 512 F.3d 522, 531 (9th Cir. 2008); and Mattel, 353 F.3d at 803.
However, this factor [is] not terribly significant in the overall fair use balancing. Dr.
Seuss, 109 F.3d at 1402.
The Work is an editorial originally published in the LVRJ. The Work is a
combination of an informational piece with some creative elements. Roughly eight of the
nineteen paragraphs of the Work provide purely factual data, about five are purely creative
opinions of the author, and the rest are a mix of factual and creative elements. While the
Work does have some creative or editorial elements, these elements are not enough to
consider the Work a purely creative work in the realm of fictional stories, song lyrics, or
Barbie dolls. Accordingly, the Work is not within the core of intended copyright
protection. Dr. Seuss, 109 F.3d at 1402. Rather, because the Work contains a significant
informational element, the scope of fair use is greater than it would be for a creative work,
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but likely less than it would for a purely informational work. However, this factor is not
terribly relevant in the overall fair use balancing, and the lesser creative element of the
Work lessens the impact further. Accordingly, this factor must be balanced with the other
fair use factors to determine if Hoehns use of the Work was fair.
3) The Amount Used
The third factor of fair use is the amount of the use of the copyrighted work. 17
U.S.C. 107. [T]he extent of permissible copying varies with the purpose and character
of the use. Campbell, 510 U.S. at 586-87. While wholesale copying does not preclude
fair use per se, copying an entire work militates against finding a fair use. Napster, 239
F.3d at 1016 (quotation omitted). However, copying of an entire copyrighted work has
been deemed justified where the purpose of the new work differs from the original. Kelly
v. Arriba Soft Corp., 336 F.3d 811, 821 (9th Cir. 2003); see also Sony, 464 U.S. at 449-50
(videotaping whole broadcast television programs for later private viewing constituted fair
use).
It is undisputed that Hoehn posted the entire work in his comment on the
Website. Posting an entire work generally militates against finding a fair use. Napster,
239 F.3d at 1016. However, while wholesale copying of the Work shifts this factor against
finding fair use, wholesale copying does not preclude a finding of fair use. Id. The three
other factors need to be balanced to determine if fair use is appropriate.
4) The Effect Upon the Potential Market for the Work
The final factor to be weighed is the effect on the potential market for or value of
the copyrighted work. 17 U.S.C. 107. Fair use, when properly applied, is limited to
copying by others which does not materially impair the marketability of the work which is
copied. Harper, 471 U.S. 566-67 (quotation omitted). Additionally, [a] challenge to
noncommercial use of a copyrighted work requires proof either that the particular use is
harmful, or that if it should become widespread, it would adversely affect the potential
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market for the copyrighted work. Napster, 239 F.3d at 1016 (quotation omitted).
It is undisputed that Hoehns use of the Work is noncommercial. Challenges to
noncommercial use require a showing that the particular use is harmful or negatively
impacts the potential market for the copyrighted work. Id. Righthaven has not presented
evidence raising a genuine issue of material fact that Hoehns use is harmful. Rather,
Righthaven contends that because Hoehn replicated the entirety of the Work [s]uch
circumstances warrant the conclusion that [Hoehns] infringement has likely caused a
substantial impairment on the potential market for the Work and that [Hoehns] infringing
copy of the Work fulfilled the demand for the original. (Resp. (Doc. #13) at 12-13.)
Additionally, Righthaven argues that the market for the Work was impacted negatively
because potential readers are able to read the Work on the Website and would have no
reason to view the Work at its original source of publication. However, Righthaven has not
presented any evidence of harm or negative impact from Hoehns use of the Work on the
Website between November 29, 2010 and January 6, 2011. Merely arguing that because
Hoehn replicated the entirety of the Work the market for the Work was diminished is not
sufficient to show harm. Therefore, Righthaven has not presented evidence raising a
genuine issue of material fact that the fourth factor favors a finding of fair use.
There is no genuine issue of material fact that the above factors favor a finding of
fair use. Of the four factors, only the fact that Hoehn replicated the entire Work weighs
against a finding of fair use. Hoehn used the Work for a noncommercial and nonprofit use
that was different from the original use. The copyrighted Work was an informational work
with only some creative aspects, and the Work was used for an informational purpose.
Righthaven did not present any evidence that the market for the Work was harmed by
Hoehns noncommercial use for the 40 days it appeared on the Website. Accordingly, there
is no genuine issue of material fact that Hoehns use of the Work was fair and summary
judgment is appropriate.
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IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendants Motion to Dismiss for Lack of
Jurisdiction (Doc. #16) and Defendants Motion for Summary Judgment (Doc. #8) are
hereby GRANTED, and Plaintiffs Complaint is hereby DISMISSED.
DATED: June 20, 2011.

_______________________________
PHILIP M. PRO
United States District Judge
17

Exhibit 3

Arkansas Democrat-
Gazette Story
August 26, 2010

Arkansas Democrat-Gazette - August 26, 2010

Firm Holds Websites to the Law

By Toby Manthey

A Las Vegas company, Righthaven LLC, is using a new approach to help news organizations
protect their news content - filing lawsuits against website owners who post copyrighted articles
without permission.

Media companies since the advent of the Internet have worried about others distributing and
profiting from content without authorization, whether it be people downloading music or films,
or reading entire articles on message boards.

Such practices deprive creators and businesses of revenue and recognition by discouraging sales
of authorized products, and by sapping advertising revenue by diverting Internet traffic from
legitimate websites, such firms say.

"There is an ongoing discussion in the United States about how to protect intellectual property
that's produced not just by newspapers but by all content producers because the Web has
changed the dynamic," said Mark Hinueber, vice president and general counsel for Las Vegas-
based Stephens Media, a Righthaven client that owns several Arkansas publications, as well as
the Las Vegas Review-Journal.

Steve Gibson, Righthaven's chief executive, wouldn't describe how Righthaven's business model
works, although he said the company has software, "systems" and other technology that help it
identify copyright infringement.

Hinueber said he assigns to Righthaven the copyright of a story that has been infringed upon.
With ownership of the story, Righthaven files suit.

Righthaven typically makes money from settlements, said Gibson, who added that none of the
cases have gone to a jury trial so far.

Righthaven often has demanded $75,000 of website owners who infringe upon a copyright and
for the owner to transfer control of the site to Righthaven, lawsuits show. That's the approach it
used in a July 20 suit against thearmedcitizen.com, which features stories of people who have
been saved by using guns to defend themselves.

Other media also have tried to protect their copyrights on the Internet by suing people who
misappropriate content, including people who illegally download music files. The Recording
Industry Association of America has sued more than 35,000 people over such violations, the
Wall Street Journal has reported. The association has discontinued the lawsuit effort, which it
says on its website was to teach fans about the law, the consequences of breaking it and about
what sites they can legally download music from.

The association cites an estimate by the Institute for Policy Innovation, a conservative think tank
in Lewisville, Texas, saying music piracy worldwide cost $12.5 billion in economic losses
annually and more than 71,000 jobs in the United States.

Gibson said the public is beginning to better understand that it can't use other people's content on
the Internet without permission.

"Even if you give an attribution for it or a link to it, it doesn't mean it's no longer a copyright
infringement," Gibson said.

Hinueber said "our folks are out there every day with blood, sweat and tears covering stories, and
you don't have the right to take somebody else's intellectual property that they worked hard on."
He later added: "Some guy in his bathrobe in his basement doesn't get the right to cut and paste
our stories." WEHCO Media, which owns the Arkansas Democrat-Gazette, said it also intends to
work with Righthaven.

Righthaven has filed about 100 lawsuits in federal court in Nevada since March, when it began
initiating the suits. Defendants include people and companies outside that state.

In a July 13 request for leave to conduct discovery in one of its cases, Righthaven said "the
public display" of copyrighted stories has the detrimental effect of diverting valuable Internet
traffic away from "the original source of publication." Hinueber said, "We welcome people to
take a look at it on our websites, but not to take it and sell Google ads around it." Righthaven
touts its service as a way for newspapers to make money and protect their property. In one
lawsuit, it cited a Pew Internet and American Life Project report that said three-quarters of news
consumers get news "thanks to e-mails or posts on social media sites." Launce Rake, spokesman
for the Progressive Leadership Alliance of Nevada, a liberal nonprofit, said his group and others
weren't warned before they were sued by Righthaven.

"We ... would have appreciated the opportunity to correct any issues that might exist, absent a
legal proceeding," Rake said.

Gibson has said that sending warning notices to website owners is expensive and not effective.
The alliance ultimately reached a confidential settlement with Righthaven, Rake said.
A rival of the Las Vegas Review-Journal, the Las Vegas Sun, whose website contains more than
30 stories about Righthaven, wrote that Righthaven has been "widely pounded" in news stories
and Internet forums "for suing mom-and-pop-type bloggers, nonprofit groups and special-interest
websites." Newspapers in the past have typically requested that stories be removed from a site
and replaced with links to a newspaper's site, the Sun noted.

The news staff of the Sun competes with the staff of Stephens' Las Vegas Review-Journal even
though its print edition is distributed as a package with the Review-Journal as part of a joint-
operating agreement, a business structure that allows competing newspapers in a town to share
advertising and other business functions. The Sun's print edition is eight pages on weekdays, and
more stories are posted online than in the print version, said Tom Gorman, the newspaper's
senior editor for print.

Sherman Frederick, the president of Stephens Media and publisher of the Review-Journal, in a
column that ran in the July edition of Editor & Publisher, a trade journal for the newspaper
industry, wrote that "it is our primary hope that Righthaven will stop people from stealing our
stuff. It is our secondary hope, if Righthaven shows continued success, that it will find other
clients looking for a solution to the theft of copyrighted material." Paul Smith, president of
WEHCO Newspapers, Inc., said, "It's a pretty serious matter when someone takes your copy,
information you've spent a lot of money to produce." He added: "I think you'll find many
newspapers that [will] use [Righthaven] and other firms like this to try to stop people from
pirating their information." Frederick said the Stephens "grubstaked" - advanced money to - and
contracted with Righthaven. Hinueber said the investment in Righthaven was made by a
company affiliated with the Stephens family.

If Righthaven discovers someone has violated WEHCO's copyright, Smith said, "it would be
[WEHCO's] decision whether or not to move forward with it," such as if the newspaper didn't
want to pursue a case against a charitable organization.

"In most cases, if someone has taken our content and put it up on their website or used it in a
print publication without our permission, at this point I would say that there's a very good chance
that we would tell [ Righthaven] to go forward with whatever legal action they needed to take to
stop this," Smith said.

Hinueber said the approach of Righthaven and Stephens is evolving.

"We're starting to look at the individual sites a little more closely than when we first started,"
Hinueber said. "I can tell Righthaven not to sue somebody." So far, he said, he hasn't done that
much, "but I have to be cognizant of who the defendant is - if it's a church or a school someplace
or some kid and his high school paper. We're getting more sensitive all the time to these issues."
Gibson added that he'd like to think there's "a humane side to Righthaven." "We have reached
some settlements that are significantly less in dollar amount than some others," Gibson said.
"And we take those things into consideration as to how sophisticated they were and how culpable
they were." Majorwager.com, Inc., of Canada, a sports-betting site sued by Righthaven for using
Stephens Media stories, said in court documents that Righthaven's suit "is arguably frivolous and
nothing more than a thinly disguised shakedown." Righthaven wants to "extract a settlement"
and knows the expense of defending against the suit will "far outweigh the value of this case," it
argued.

Majorwager argued in court documents that the stories were posted by a third party.

Wired.com, a technology news website, described Righthaven as "borrowing a page from patent
trolls." A patent troll is a company or person who buys patents for the purpose of suing others
who may be infringing upon it, rather than for using the patent to create a product.

Smith said WEHCO would share in whatever settlement Righthaven obtains.

Smith said he knew of no previous instances in which the company had sued someone for
posting a story online. Many violations in the past went unnoticed by the company, he said.

"That's part of the appeal of this," Smith said. "They've got ways to track this." Gibson said
Righthaven is "as much a technology company as anything," because it offers a solution for
"systematically identifying" possible copyright infringement. He declined to say how the
company does that, other than to say it is "proprietary technology" and that there are systems and
software that do so. Hinueber said Stephens provides Righthaven with a feed of locally produced
copy, and Righthaven scours the Web for infringements.

So far, Gibson said, the company is profitable, but he wouldn't say what the size of any of its
settlements have been.

"We're not engaging in settlements in a manner that will mean that we can't continue to do what
we're doing," Gibson said.

Copyright law allows for the "fair use" of some copyrighted content, but that's limited to
purposes such as news reporting, teaching and criticism. Factors used to judge whether the use is
"fair" include the amount of content used and whether the use is for nonprofit or commercial
purposes.

Hinueber said, "We have a little statement that says: `We love links.' If you want to post a
headline and the first paragraph and a link to our story, we're happy with that. You'll never hear
from us. And if you want to take a paragraph or two from one of our stories and want to
comment on it and criticize it, fine. ... That's fair use." Hinueber acknowledged that by suing
people who like and post their stories, newspapers could anger their fans.

But often, he said, "these websites are not in your marketplace. They're not really your fans.
They're coming in on a one-time or two-time basis and taking the stories to relate to whatever it
is they're selling Google ads around."


Exhibit 4

The New York
Times Story
August 26, 2010

Reprints
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<"00)#*$&'00&)B$52()$21$03)$-"*)*$3",)$A2()$02$0#'"&$D)0+$"(/$<"(D$3",)$=))($*)00&)/$270$21$
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:/"0&,,&+3($8+3,2&2-2/,$.1&"$-,/#$L*&,$2&0/($2*+-<*($!"#$%&''$,1&4$*/G,$,2//"&3<$8'/1"$+.$137$
&01</$+"$,2+"7$2*12$8+-'4$81-,/$*&0$2"+-5'/$)&2*$;&<*2*16/3#$
$

Exhibit 5

Mike Rosen Plagiarism
Allegations


!"#$%&'($)%*+,-",."/$(%0"1($+2%")%!"#$"%&'()*%
3'+41)5%6$%(,7(%0$%8"8%)'90")-%:.')-%
;7%!"30,$+%&'<$.9(
pubIIsIed: TIu., eb. 1; zo11 O 1o:AM
=*8,9$%<$+':> TIIs week, u LIpsLer InIormed vours LruIv (und CoIorudo PoIs) LIuL KOA LuIk sIow IosL MIke
Rosen Iud busIcuIIv copIed u zoo8 coIumn Ie wroLe Ior LIe !"#$%&'"()*+,)&-./0 und repubIIsIed IL In December us u 1.)2.3&4"0* pIece. RuLIer LIun sImpIv
runnIng sIde-bv-sIde excerpLs, we sIured LIe InIo wILI Rosen Lo geL IIs Luke. HIs response In u nuLsIeII? YeuI, dId IL, und so wIuL?
TIe sImIIurILIes beLween "TIe 'TrIckIe-Down' MvLI," pubIIsIed In LIe November z8, zoo8 !"#$%, und "'TrIckIe Down' u DemocruLIc EpILIeL," ure so sLrIkIng
LIuL LIev don'L Ieuve mucI room Ior denIubIIILv. Here's u segmenL Irom LIe !"#$% ILem:
DeIumIng suppIv-sIde economIcs conLempLuousIv us "LrIckIe-down" Ius been u DemocruLIc sLundbv Ior veurs, wILI one noLubIe excepLIon. AILer
JoIn . Kennedv wus eIecLed presIdenL In 16o, Ie persuuded Congress Lo reduce LIe conIIscuLorv Lop murgInuI Lux ruLe, LIen o percenL, down Lo u
mere ;o percenL. n u speecI Lo LIe EconomIc CIub oI New York In 16z, JK expIuIned: "n sIorL, IL Is u purudoxIcuI LruLI LIuL Lux ruLes ure Loo
IIgI Loduv und Lux revenues Loo Iow -- und LIe soundesL wuv Lo ruIse revenues In LIe Iong run Is Lo cuL Lux ruLes now."
Under LIe Kennedv Lux-ruLe cuLs, us predIcLed, revenues grew. TwenLv veurs IuLer, wIen Lux ruLes were cuL even more under RonuId Reugun, IederuI
Lux revenues uguIn soured wILI LIe "rIcI" puvIng un IncreusIngIv greuLer sIure oI LIe Income Lux burden. SInce IL wus now u RepubIIcun InILIuLIng
LIIs poIIcv, DemocruLs brunded IL "ReugunomIcs" undmocked IL us IuII-buked, "LrIckIe-down" economIcs.
And Iere's ILs equIvuIenL In LIe 4"0* oIIerIng:
A rure excepLIon wus DemocruLIc PresIdenL JoIn . Kennedv, wIo persuuded Congress Lo cuL Income Lux ruLes ucross LIe bourd, IncIudIng LIe Lop
ruLe, LIen more LIun o percenL, down Lo u mere ;o percenL. n u speecI Lo LIe EconomIc CIub oI New York In 16z, JK expIuIned: "n sIorL, IL Is u
purudoxIcuI LruLI LIuL Lux ruLes ure Loo IIgI Loduvund Lux revenues Loo Iow -- und LIe soundesL wuv Lo ruIse revenues In LIe Iong run Is Lo cuL Lux
ruLes now." Under LIe Kennedv Lux-ruLe cuLs, us predIcLed, revenues grew.
TwenLv veurs IuLer, wIen Lux ruLes were cuL even more under RonuId Reugun, IederuI Lux revenues uguIn soured wILI LIe "rIcI" puvIng un
IncreusIngIv greuLer sIure oI LIe Income Lux burden. SInce IL wus now u RepubIIcun InILIuLIng LIIs poIIcv, DemocruLs brunded IL "ReugunomIcs" und
mocked IL us IuII-buked, "LrIckIe-down" economIcs.
TIe LIpsLer poInLed ouL LIuL Rosen Iud Luken LIIs Luck uL IeusL once beIore vIu Lwo !"#$% coIumns, LIe zooq suIvo "PurLv SLIII Trumps Person," wIIcI couId
no Ionger IInd onIIne ( Lrucked IL down usIng LIe NexIs duLu buse), und zoo8's "PurLv Trumps Person." BuL Rosen Lruded Ted Kennedv Ior CIurIes ScIumer
Irom LIe IIrsL eIecLIon cvcIe Lo LIe second. Here's u snIppeL Irom zooq:
Now, IeL's suv vou're u regIsLered RepubIIcun voLer wIo cIeurIv preIers LIe RepubIIcun pIIIosopIv oI governunce. And vou're u good-nuLured, weII-
InLenLIoned person wIo Iuppens Lo IIke un IndIvIduuI DemocruL, u SenuLe cundIduLe, wIo's somewIuL conservuLIve. You decIde Lo cross purLv IInes
und voLe Ior IIm.
As IL Lurns ouL, Ie wIns, beuLIng u RepubIIcun und gIvIng LIe DemocruLs u one-voLe mujorILv, =1-q, In LIe U.S. SenuLe.
CongruLuIuLIons! You jusL goL Ted Kennedv, PuLrIck euIv, DIunne eInsLeIn und HIIIurv CIInLon us kev commILLee cIuIrs, und u guurunLee LIuL
vour RepubIIcun IegIsIuLIve ugendu wIII be sLvmIed.
And Iere's Iow LIe segmenL Iooked In zoo8:
eL's suv vou're u regIsLered RepubIIcun wIo preIers LIuL purLv's pIIIosopIv oI governunce. And vou'reu IuIr-mInded, weII-InLenLIoned person wIo
Iuppens Lo IIke u cerLuIn moderuLeIv conservuLIve DemocruL runnIng Ior U.S. SenuLe. So vou decIde Lo cross purLv IInes und voLe Ior IIm. As IL Lurns
ouL, Ie wIns, gIvIng DemocruLs u one-voLe mujorILv, =1-q. CongruLuIuLIons! You jusL goL CIurIes ScIumer, PuLrIck euIv, DIune eInsLeIn und
HIIIurv CIInLon us kev commILLee cIuIrs und u guurunLee LIuL vour RepubIIcun IegIsIuLIve ugendu wIII be sLvmIed.
WIen conLucLed ubouL LIe coIumns, Rosen responded vIu e-muII wILI LIIs: "So wIuL? 've been wrILIng coIumns Ior o veurs. WIuL's IIs poInL, LIuL 'm
pIugIurIzIng mvseII? No need Lo reInvenL LIe wIeeI wIen LIe sume Issues resurIuce. PresumubIv, some new reuders Iuven'L reud uII mv pusL coIumns. As
WIIIIum . BuckIev, Jr. once suId, 'RepeLILIon Is LIe prIce oI musLerv.' 'm IIuLLered LIuL vour 'LIpsLer' IoIIows me so cIoseIv. Sounds IIke someone wIo dIsugrees
wILI mv vIews wunLIng Lo be u nuIsunce."
n u subsequenL excIunge, Rosen wroLe more specIIIcuIIv ubouL LIe coIumns In quesLIon. AbouL LIe IIrsL puIr, Ie noLes LIuL "wIen 've dIscussed LIIs on LIe uIr,
've suId us Iong us LIe IeIL conLInues Lo mIsrepresenL suppIv-sIde economIcs us 'LrIckIe down,' 'II keep rewrILIng LIIs coIumn."
RegurdIng purLv LrumpIng poIILIcs, Ie udds, " wrILe LIIs uL IeusL everv Iour veurs wIen LIere's u presIdenLIuI eIecLIon und dIscuss IL IrequenLIv on uIr. L's u new
concepL Lo munv peopIe. Iubor Lo expIuIn LIIs Lo conservuLIves wIo mIgIL wusLe LIeIr voLe on LIIrd-purLv cundIduLes und IeIp DemocruLs geL eIecLed, us
NuderILes IeIped BusI beuL Gore In zooo."
Bused on LIIs IusL commenL, reuders cun Iook Iorwurd Lo seeIng LIe "Lrump" coIumn uguIn nexL veur. UnLII LIen, LIere's u cerLuIn Ironv In LIe IucL LIuL LIe IIrsL
copvrIgIL-InIrIngemenL IuwsuIL IIIed bv Nevudu's RIgILIuven C on beIuII oI LIe 4"0* cIurged u SouLI CuroIInu bIogger Ior repubIIsIIng u Rosen coIumn
wILIouL permIssIon.
MIke Rosen.

Page 1 of 6 Mike Rosen plagiarizes himself in Denver Post column? He says he did nothing wrong - ...
6/23/2011 http://blogs.westword.com/latestword/2011/02/mike_rosen_denver_post_plagiarizes_hims...
WIuL does LIe !"#$ bruInLrusL LIInk ubouL uII LIIs? wIII be sendIngu IInk Lo LIIs reporL Lo edILor Greg Moore. WIen Ie or unoLIer !"#$ represenLuLIve geLs
buck Lo us, we'II upduLe.
!"#$%&'()*+,,($-.-: JusL receIved u sLuLemenL Irom %&'(&)*!"#$ edILorIuI puge edILor Dun HuIev ubouL LIIs LopIc. He wrILes:
We expecL uII coIumns pubIIsIed In our secLIon Lo be orIgInuI work und recenLIv LoId MIke LIIs. WIIIe IL's Lrue LIuL vou cun'L pIugIurIze vourseII,
und IL's eusv Lo sImpIv IIIL purugrupIs Irom vour prevIous work us u wuv Lo provIde buckground or supporLIng InIormuLIon, expecL wrILers Lo IeL
reuders know wIen LIev're doIng LIuL.
+")&*,)"-*".)*+&/01*1)230(&4*56)01'*70884*7"99:*98";;&)*#.&/*9:*+&/01<&=#*>*?0;3$31(&'*0#*@AB*23)"'02188:*088B*1.$0#$02C5
/012345(,6(71..&4%8((
TIe IucL LIuL MIke Rosen Is un unupoIogeLIc und uneLIIcuI doucIebug sIouId reuIIv no Ionger surprIse us.

nsLeud, wIuL's surprIsIng Is LIuL Ie sLIII Ius un uudIence uL uII. One wouId Iope LIuL poInLIng LIIngs IIke LIIs ouL wouId Iuve some neguLIve eIIecL on IIs "uuLIorILv" us u commenLuLor, buL uppurenLIv noL. 'm noL
sure wIo's more Lo bIume Ior LIIs...LIe PosL Ior IeLLIng IL sLund (so Iur), or IIs uudIence, Ior puvIng unv uLLenLIon Lo IIm uL uII.
don'L reuIIv undersLund LIe poInL oI LIIs urLIcIe. Bv deIInILIon one cunnoL pIugIurIze oneseII. WIuL Is vour Issue Iere?
PIugIurIsm InvoIves represenLIng someone eIse's work us vour own. Rosen Is noL pIugIurIzIng. L's Iuzv, buL noL uneLIIcuI.
LIInk Cee o Green Ius u IIL song usIng LIe words LIuL Rosen Is LrvIng Lo convev :)
ove LIIs posL, dondIwIIIIums. TIunks Ior commenLIng.
He muv be reIusIIng, buL uII oI IL Is IIs work und Ie cun use IL us Ie sees IIL, uILIougI IL cerLuInIv wouId Iuve IeIped II Ie Iud IncIuded u sLuLemenL sucI us, " wroLe In un eurIIer urLIcIe LIuL..." unduIso cILed wIere
IIs orIgInuI commenLs uppeured. L muv be IuzIness, buL IL Is noL pIugIurIsm. s LIere someLIIng vou don'L undersLund ubouL LIuL? Your compurIson oI IIs currenL commenLs Lo IIs prevIous commenLs mukes vou
Iook IooIIsI und mIsguIded, sInce LIIs Is noL u cuse oI pIugIurIsm. Do vou ucLuuIIv beIIeve u person cun pIugIurIze LIeIr own work? I vou do, LIen muvbe IL's LIme Ior vou Lo do someLIIng eIse.
L's reuIIv more ubouL LIe dIIIerence beLween journuIIsm und LuIk rudIo. n journuIIsm, repeLILIon Is u bud LIIng, und repeLILIon oI oLIers Is consIdered'pIugIurIsm.' n LuIk rudIo, repeLILIon Is consIder
consIdered 'reInIorcemenL,' und Is u pIus: especIuIIv wIen LIe gouI Is Lo bIudgeon peopIe wILI bIunL opInIons. Rosen's more oI u LuIk rudIo guv LIun u journuIIsL. Hence, LIIs uLLILude.
/71%70(9&$%( q monLIs ugo
:&%&( q monLIs ugo
;1<=4$>38%( q monLIs ugo
#14#323>>3$.8( q monLIs ugo
?370$&>(@1A&=%8( q monLIs ugo In repIv Lo dondIwIIIIums
2.B&=8CDDC( q monLIs ugo
E!(F1<4#$%314( q monLIs ugo
"MIke Rosen pIugIurIzes IImseII In Denver PosL coIumn? He suvs Ie dId noLIIng wrong."

MIcIueI RoberLs --- And vour poInL Is............? MIke Rosen dIdn'L do unvLIIng wrong. So wIuL's vour grIpe?
rom LIe PosL's perspecLIve He muv noL Iuve pIugIurIzed, buL wouId urgue LIuL Ie dId someLIIng wrong. I 'm puvIng Rosen Ior X number oI coIumns wILI Y words per week, 'm expecLIng orIgInuI
muLerIuI. I wunL Lo run u BesL oI MIke Rosen coIumn, wouIdn'L puv neurIv us mucI us wouId Ior un orIgInuI urLIcIe.
ScubuSLeve, 'm LrvIng Lo presenL LIe IucLs, noL Luke u posILIon. Some peopIe cIeurIv beIIeve Ie dId someLIIng wrong In LIIs InsLunce; oLIers ugree wILI IIm LIuL Ie dIdn'L. EucI reuder cun reucI IIs or Ier
own concIusIon. TIunks Ior posLIng.
MIcIueI,

WIere do vou geL oII suvIng vou ure presenLIng LIe IucLs wIen vour IeudIIne Is IucLuuIIv IncorrecL? Your use oI LIe word "pIugIurIzes" Is wrong und vou Iuve been cuIIed ouL on IL. Your reIusuI Lo
ucknowIedge LIIs cIeurIv sIows LIuL vou HAVE Luken u posILIon.
He's sLeuIIng monev Irom LIe DP wIIcI Is puvIng IImLo produce orIgInuI conLenL. n uddILIon, Ie's u Iuzv, uneLIIcuI ussIuL.
WouId LIe currenL owner oI LIe Rockv MounLuIn News urcIIves be InLeresLed In Rosen's "borrowIng" oI LIeIr copvrIgILed muLerIuI? I Rosen receIved compensuLIon Ior IIs work wILI LIe Rockv, und LIe Rockv
reserved uII rIgILs Lo LIeIr prInLed conLenL, muvbeRIgILIuven sIouId become InvoIved. Anv uLLornev wunL Lo weIgI In?
Verv InLeresLIng LIougIL, HeresuLIougIL. We're goIng Lo muke IL un upcomIng CommenL oI LIe Duv. TIunks Ior sIurIng vour Luke.
TIe sIume ubouL LIIs urLIcIe Is LIuL u compeIIIng LopIc Is beIng IosL on un IncorrecL Lerm LIuL seems Lo be used us u sIock LucLIc, us weII us IncompIeLe reporLIng.

Rosen dIdn'L pIugIurIze, wIIcI mukes LIe IeudIIne wrong. A beLLer IeudIIne und Iocus Ior LIe sLorv: "MIke Rosen RecvcIes CoIumn: Do Reuders Deserve Lo Know TIev're ReudIng u Rerun?" TIuL's LIe IeurL oI LIe
debuLe, wIeLIer Rosen needed Lo InIorm reuders und IIs empIover LIuL Ie wus recvcIIng. UnIorLunuLeIv, IL's IosL under u Iouded buzzword IIke pIugIurIsm, und evervone Is urguIng ubouL LIuL InsLeud oI wIuL
muLLers.

As Iur us LIe IncompIeLe reporLIng, LIere's un ussumpLIon mude LIuL Rosen vIoIuLed copvrIgIL. TIe copvIng Isn'L necessurIIv u breucI oI copvrIgIL becuuseIL's noL verbuLIm. L uII depends on wIuL Lvpe oI
conLrucLJwork ugreemenL LIuL Rosen operuLed under uL LIe Rockv MounLuIn News. TIe puper couId onIv IoId LIe rIgILs Lo LIuL pIece us IL uppeurs, noL LIe noLes or InIormuLIon Ie guLIered. or InsLunce, u musIc
wrILer uL u puper couId wrILe u revIew oI u Beck concerL Ior LIuL puper und LIen wrILe unoLIer one oI LIuL sume concerL Ior RoIIIng SLone wILIouL IL beIng un Issue (us Iong us LIe puper dIdn'L IeeI LIere wus
compeLILIve conIIIcL). TIuL wrILer jusL couIdn'L use LIe exucL sume revIew In boLI pIuces.

dIsugree wILI LIe commenLers wIo cIuIm LIere's noLIIng Lo LuIk ubouL wIen IL comes Lo wIuL Rosen dId. Becuuse LIere Is. PIenLv. SudIv, LIIs urLIcIe gIves LIose deLrucLors ummo Lo deruII LIe reuI debuLe.
TIe copvIng doesn'L Iuve Lo be verbuLIm Lo vIoIuLe LIe copvrIgIL oI un exIsLIng work, buL u IoL depends upon wIIcI purLv owns LIe specIIIc rIgILs uL Issue us Lo wIeLIer or noL InIrIngemenL or u breucI oI conLrucL
occurred In LIIs cuse.

As LIe creuLor oI u work, Rosen wouId own LIe copvrIgILs Lo LIe LexL oI IIs coIumns, uL IeusL InILIuIIv. Bv wuv oI conLrucL Ie muv Iuve ussIgned some or uII oI LIose rIgILs Lo LIe Rockv (Ior LIe IIrsL coIumn) undJor
mude cerLuIn represenLuLIonsJwurrunLIes Lo D. PosL us LIe orIgInuIILvJnon-InIrIngemenL oI coIumns Ie submILs Ior pubIIcuLIon LIere.

BuL IL Is possIbIe LIuL IIs conLrucLs wILI boLI pupers uIIowed IIm Lo reLuIn LIe rIgILs Lo creuLe derIvuLIve works (urguubIv LIe cuse wILI LIIs IoIIow-oncoIumn), mude no resLrIcLIon on IIs re-use oI muLerIuI, or dId
noL requIre IIm Lo muke unv repJwurrunLv or IndemnIIv LIe PosL. TIere Is noL enougI InIo Lo suv one wuv or unoLIer.
!"#$%!&'(') q monLIs ugo
*+,'*-) q monLIs ugo In repIv Lo ScubuSLeve
.+"/%'0)12$'3&4) q monLIs ugo In repIv Lo ScubuSLeve
5'&') q monLIs ugo In repIv Lo MIcIueI RoberLs
.$'306) q monLIs ugo In repIv Lo ScubuSLeve
7'3'4%&/2#8/&) q monLIs ugo
.+"/%'0)12$'3&4) q monLIs ugo In repIv Lo HeresuLIougIL
92') q monLIs ugo
:#'4&) q monLIs ugo

BuL ugree wILI LIe oLIer commenLer, LIuL usIng LIe pIruse 'pIugIurIsm' jusL conIuses LIe Issue...even II Rosen dId noL or couId noL pIugIurIze IImseII, IL does noL necessurIIv meun Ie dId noLIIng wrong.
LIInk vou und Joe muke good poInLs. How wouId dumuges be cuIcuIuLed Ior u copvrIgIL vIoIuLIon? cun'L see Iow LIe Rockv couId Iuve unv dumuges buL wouId LIInk LIe PosL couId urgue Ior some Lvpe oI
dumuges. PresumubIv LIev wIII IIre IIm II LIev IeeI LIe dumuges exceed IIs conLrIbuLIon.
You Iuve Lo be kIddIng. You wusLed u wIoIe coIumn on LIIs? And pIeuse don'L gIve me LIuL oId IIne ubouL Iow vou're noL LukIng u posILIon wIen vou devoLedu wIoIe coIumn Lo IL. TIe medIu Is LIe messuge, puI.
GeL u IIIe.
Poor wILLIe MIkev goL busLed Ior beIng u Iuzv Iuck und operuLIng In u munner LIuL cIeurIv vIoIuLes IIs empIover's expecLuLIons "We expecL uII coIumns pubIIsIed In our secLIon Lo be orIgInuI work" ugree LIe
Lerm pIugIurIsm Is u dIsLrucLIon--perIups: "s MIkeRosen JusL u uzv Huck or u DeIIberuLe CIeuL"?

PIugIurIsm Ius Lwo bud uspecLs: one uspecL Is cIeuLIng LIe person vou're copvIng Irom. TIe oLIer Is mIsIeudIng LIe reuder undJor vour empIover LIuL vou're wrILIng LIen Ior LIem. n LIIs cuse, Ie's onIv doIng LIe
IuLLer. I Ie wus IonesL ubouL IL "As wroLe Iour veurs ugo..." LIen IL's noL u probIem eLIIcuIIv (LIougI wIeLIer IIs empIover wouId keep puvIng IIm Is unoLIer quesLIon).

TIIs guv sounds IIke u Iuck LIougI, so none oI LIIs surprIses me.
TIIs Is exIIbIL A oI wIv MIke Rosen Is noLIIng buL un oId Iuck wILI LIred Ideus. He's so Iuzv Ie cun'L even Luke LIe LIme Lo rewrILe IIs oId Iuckneved RMN coIumn.
JusL sLeuIIn monev MIke. GreuL counLrv Isn'L IL?
HIs besL response Is "so wIuL?" I HIckenIooper goL cuugIL doIng someLIIng IIke LIIs, Rosen und PeLer BoIIs wouId be screumIng Lo IIgI Ieuven. AII IIs upoIogIsLs cun do Is poInL ouL LIuL IL's noL LecInIcuIIv
pIugIurIsm II vou sLeuI Irom vourseII. uIr enougI. L wouId IIkeIv be u Iur beLLer coIumn II Rosen dId ucLuuIIv sLeuI IL Irom someone eIse. AL IeusL IL wouId conLuIn un orIgInuI LIougIL.
ARE YOU SEROUS. Do vou Ibs noL Iuve unvLIIng beLLer Lo do? YOU CAN'T PAGARZE ONESE.
MIke Rosen -- jusL unoLIer Iuck puLLIng LIe "con" In "conservuLIve."
No, IIbs Iuve noLIIng beLLer Lo do!
ookIng Iorwurd Lo WW goIng uILer LIuL bIuLIerIng IdIoL, MIke TwILLwIn. YeuI, noL IIkeIv Lo Iuppen...
!"#"$ q monLIs ugo In repIv Lo GuesL
%&'()*+,-"./*&'"$ q monLIs ugo
!$ q monLIs ugo In repIv Lo RIcIurdowenprIce
0,(.$1,**"2#$3,45&.2,.$ q monLIs ugo
%&'(#,4$ q monLIs ugo
67"2#$ q monLIs ugo In repIv Lo RIcILom
89:)#&;"$ q monLIs ugo
67"2#$ q monLIs ugo In repIv Lo CONuLIve
613<$ q monLIs ugo In repIv Lo CONuLIve
613<$ q monLIs ugo
You're rIgIL -- us Iong us Ie upIoIds LIe busIcs oI journuIIsm, u skIII MIke Rosen doesn'L possess (umong munv oLIer skIIIs Ie doesn'L possess, IIke crILIcuI LIInkIng).
Do vou Iuve unv exumpIes oI MIke ILLwIn reprInLIngoId coIumns wILIouL ucknowIedgIng IL? eL us know, GTW -- und LIunks Ior posLIng.
YAWN, LIere's pIenLv oI oLIer crup Lo go uILer TwILLwIn Ior, ruLIer LIun peLLv, non-Issue "seII-pIugIurIsm".
REAY good response, GTW. Bov, vou sIowed MIcIueI RoberLs wIen Ie LrIed Lo cuII vour Iume-uss bIuII! YAWN. You, sIr, ure u genIus.
YAWN. You're no genIus, nor u sIr.
TIIs punk Is sIumeIess und IupIess. n oLIer words, Ie Is u numbskuII und u nIncompoop. And Ie proves IL LIme und LIme uguIn duv In und duv ouL wILI IIs bIuLIerIngs und propugunu. GeL ouL Rosen, und move on
Lo CosLu RIcu.
On IusL Monduvs rudIo sIow (eb. z1, AM podcusL) Rosen suId LIuL Ie wus mereIv reIusIIng oId LopIcs und Ideus. He suId: "As Ior usIng LIe sume wordIng; II 've perIecLed LIe expIunuLIon, LIere's no need Lo
purupIruse IL. And LIIs Is IresI InIormuLIon Lo newIIsLeners."

Rosen Is noL exucLIv IorLIcomIng. Here's wIuL Ie ucLuuIIv dId. He dIdn'L IeeI IIke wrILIng un orIgInuI coIumn, so Ie brougIL up LIe oId one on IIs compuLer und mude u Iew cIunges Lo IL: Ie wroLe u new
InLroducLIon, cIunged some words Iere und LIere, und uILered LIe purugrupI sLrucLure (eusIIv done usIng cuL und pusL). TIe onIv reuson Ie wenL Lo LIIs mucI LroubIe wus Lo IIde LIe IucL LIuL Ie wus resubmILLIng
un oId coIumn. He knew Ie wus goIdbrIckIng und Ie LrIed Lo cover IL up.

MIke Rosen und Dun HuIev muke IL sound us LIougI Rosen mereIv reused u pIruse or u purugrupI. No. n boLI cuses Rosen essenLIuIIv resubmILLed un enLIre coIumn, und Ie uppurenLIv goL IuII puvmenL Ior LIem.

One poInL oI reuI subsLunce: n IIs "LrIckIe-down" coIumns, Rosen suvs LIuL LIe Reugun Income Lux ruLe cuLs cuused IederuI Lux revenues Lo "sour." AcLuuIIv, oI LIe sIx decudes sInce WorId Wur , LIe 18os Iud
LIe second worsL Income Lux revenue perIormunce. TIe worsL decude, oI course, Is LIe zooos.

TIe numbers come Irom LIe HIsLorIcuI TubIes In LIe U.S. BudgeL, wIIcI vou cun geL onIIne. TIe IndIvIduuI Income Lux revenues Ior eucI veur ure Iound In TubIe z.1. TIe composILe deIIuLors Ior eucI veur, wIIcI
ure used Lo udjusL Ior InIIuLIon, ure Iound In TubIe 1..

Here's LIe growLI, bv decude, oI IederuI Income Luxrevenues:

1=os +8;.6%
16os +6.=%
1;os +zq.=%
18os +zo.8%
1os +6;.%
zooos -z;.z%

I LIe Income Lux revenues "soured" durIng LIe 18os, wIuL words sIouId be used Lo descrIbe LIe 1=os, LIe 16os, und LIe 1os?
nLeresLIng InIormuLIon, muumun. TIunks Ior sIurIngIL.
s Ie reuIIv pIugIurIzIng IImseII?

!"#$%& q monLIs ugo In repIv Lo GTW
'()*+#,&-./#0%$& q monLIs ugo In repIv Lo GTW
!123& q monLIs ugo In repIv Lo MIcIueI RoberLs
!"#$%& monLIs ugo In repIv Lo GTW
!123& monLIs ugo In repIv Lo GTW
'0$4&2(5+&-.$#6#)*$7(& q monLIs ugo
8+"8+5& monLIs ugo
'()*+#,&-./#0%$& monLIs ugo In repIv Lo muumun
9+)7&'):",,.";*& monLIs ugo
!"#$%%&$#"'#&%#"()"#(%*$#&+$),,-',-+)"+./#"(%#+."%00%1"2)0#,-',%-"3#'4#"(%#5'163#7'2.")+.#8%9$:#!#;%"#(%#<'%$.*"#'9.#"(%#-+/("$#"'#"(%#1'02&.$#(%#9-'"%#4'-#"(%&#9(+0%#+.#"(%+-#%&,0'3:##
#

Exhibit 6

Las Vegas Sun
April 20, 2011

!"#$%$&'()*+,)-".()%*&/*+0"%"+/*
-,+1/*,)*2/$&34*
+,560"#$%*%0&)/-(0/
By Steve Green (contact)
Wednesday
20 April 2011
2:01 p.m.
Las Vegas copyright enforcement company Righthaven LLC is confident its lawsuits over Las Vegas
Review-Journal material remain valid despite new evidence that defense attorneys say proves the
copyright assignments at issue are meaningless.
Roger Hunt, Nevadas chief U.S. District Court judge, last week unsealed the Strategic Alliance
agreement between Stephens Media LLC, owner of the Review-Journal, and its lawsuit partner
Righthaven.
Attorneys defending Righthaven defendants pounced on the agreement, saying it proves Righthaven has
no standing to sue over Review-Journal material because of what they called "sham" copyright transfers.
In particular, they said, the agreement provides Righthaven only the right to sue over the copyrights
while Stephens Media maintains all other rights in the material covered by the copyrights such as the
right to display and distribute the news stories and other material at issue.
Attorney Laurence Pulgram of the law firm Fenwick & West LLP in San Francisco, representing
defendant the Democratic Underground, said in a court filing that since Righthaven is conveyed only the
rights to sue, "the assignment to Righthaven is invalid."
He also said that since Righthaven has no right to display or otherwise use the copyrighted material, it
can suffer no harm when that material is infringed on.
Defense attorneys in at least five other Righthaven cases have also seized on the Strategic Alliance
agreement, saying it undercuts Righthavens right to sue in those cases as well.
But Shawn Mangano, a Las Vegas attorney representing Righthaven, said Wednesday hes confident the
copyright assignments will stand up to scrutiny for lawsuit purposes.
"Its much ado about nothing," Mangano said, citing language in the Strategic Alliance agreement in
which Righthaven is granted ownership of the copyrights and then grants Stephens Media a license for
Stephens Media to use the material produced by Stephens Media journalists.
"We believe it will withstand scrutiny," at the federal district court level or the appeals court level if
necessary, Mangano said.
Separately on Wednesday, U.S. District Judge Gloria Navarro in Las Vegas dismissed a Righthaven
lawsuit against Michael Leon of Fitchburg, Wisc., because Leon was not served on time.
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The suit was dismissed without prejudice, meaning Righthaven can re-file it. She also said Leon and his
attorney can petition the court for recovery of their costs a petition Righthaven will have the right to
review and contest.
The suit against Leon has grown contentious, with Mangano saying in court Wednesday he may file
libel claims against Leon after, according to Mangano, Leon posted online defamatory and false
information about Righthaven, Mangano and Righthaven attorney Steven Ganim on his website. Some
of this information was re-posted on at least one other anti-Righthaven website.
"Im not going to tolerate and allow someone to tarnish my professional reputation" or make libelous
claims about Righthaven and Ganim, Mangano said.
"Mr. Mangano's reference to libel indicates a lurid conception of the term," Leon said in response after
the hearing.
Navarro said during a hearing she may also dismiss the suit against Leons codefendant, Denise Nichols,
but deferred a ruling on that since attorneys for Nichols and Righthaven are in settlement talks.
In a lawsuit against Leon and an amended complaint naming Nichols, Righthaven claims they were
involved in posting Righthaven-owned content from the Review-Journal and the Denver Post on the
veteranstoday.com website.
Leon has denied the allegations and an attorney for Nichols filed a motion to dismiss, saying she was
served with the first suit not naming her as a defendant and has not been served with the amended
complaint actually naming her.
"I am dealing with health issues. I have issues more so health-wise than when I first came up here. I
dont want this to drag out," Nichols, a retired military nurse who lives in Colorado, told the court by
telephone from the Washington DC VA Medical Center, where shes receiving medical treatment.
"(Rather than) the repeat of getting another (court) filing I want to somehow come to a conclusion on
this so I can focus on my own health."
Leon said Nichols is a distinguished veteran of the Vietnam and Gulf War eras.
One of her attorneys, Michael Kimbrell of Las Vegas, has said Righthavens no-warning lawsuit against
her "smacks of poor patriotism," as Nichols donates her time helping injured and sick veterans.
"I am ready to go my separate way from Mangano, but I regard my co-defendant, Denise Nichols, as a
hero. And I will stand with her for as long as her litigation continues, whether the hell attorney Mangano
likes it or not," said Leon, who has a website called malcontends.blogspot.com.
!"#$%
Page 2 of 2 Righthaven confident as critics focus on sham copyright transfers - VEGAS INC
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Exhibit 7

Las Vegas Sun
April 11, 2011

!"#$%&'()*+%'&,*$-(-./%0&1.)0*0$&
2)34&53")(&)%53)#
Monday
11 April 2011
11:14 a.m.
Updated
11 April 2011 3:24 p.m.
Las Vegas copyright enforcement company Righthaven LLC on Monday sustained another setback in its
litigation campaign when a federal judge in Denver struck from the record comments by Righthaven that
were critical of a litigation foe's attorneys -- and that warned Righthaven followers not to infringe on its
copyrights.
After Righthaven voluntarily dismissed its lawsuit against autistic North Carolina blogger Brian D. Hill,
which had evolved into a public relations disaster for Righthaven and its partner the Denver Post, Senior
U.S. District Judge John L. Kane issued an order finding the majority of Righthaven's notice of
voluntary dismissal is "immaterial and impertinent.''
Kane ordered all of Righthaven's commentary about Hill and his attorneys and its warning to potential
infringers struck from the record.
The only thing that survived after Kane's scrutiny on Monday was Righthaven's bare-bones notice of
dismissal.
Kane last week criticized Righthaven's litigation tactics in the case alleging copyright infringement as he
issued a rare order denying Righthavens motion for extra time to respond to Hills lengthy motion for
dismissal.
"Plaintiffs wishes to the contrary, the courts are not merely tools for encouraging and exacting
settlements from defendants cowed by the potential costs of litigation and liability," Kane wrote in his
order last week.
That was after attorneys for Hill, 20, denied Righthavens assertions that a settlement could be reached if
counsel for Hill acted in good faith.
The case over a Denver Post TSA pat-down photo -- earlier caused headaches for Righthaven and the
Denver Post when Hill, with his disabilities, was mentioned in a national Associated Press story and was
covered in the Denver publication Westword and when the international group Reporters Without
Borders appealed to the Denver Post to call off the lawsuit.
Hill, in responding to the lawsuit, denied he infringed on a copyright as the photo at issue can be found
on multiple websites without credit to the Denver Post or any indication the photo had been taken in
Denver.
Page 1 of 3 Judge strikes Righthaven warning from court record - Monday, April 11, 2011 | 11:14 a.m...
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Hill also embarrassed Righthaven in his response, charging that even after Righthaven learned of his
disabilities (diabetes, hyperactive attention disorder and mild autism), one of its attorneys still demanded
a $6,000 settlement from Hill -- an amount Hill said he couldnt afford.
Despite the dismissal, Hills attorneys indicated Monday they may continue to press their assertion that
Righthaven should pay their legal fees.
We believe that the matter of attorneys fees is still an outstanding issue and will react accordingly,
said one of Hills lawyers, David Kerr in Fort Collins, Colo. We are discussing the matter with Brian
and evaluating our options as we speak.
Everyone at Santangelo Law Offices P.C. is thrilled for Brian by this development. What this means
for other Righthaven cases in Colorado and elsewhere, Ill leave that to others to speculate, Kerr said.
The Hill case, and another case in which Righthaven sued a journalist and then quickly dropped the
lawsuit, highlighted problems with Righthavens policy of generally suing first without talking to
defendants and giving defendants a chance to remove allegedly infringing content.
In the Hill case, Righthaven said it didnt know of his disabilities prior to filing suit and in the case
against the journalist, Righthaven apparently didnt understand it was suing a journalist over a
Righthaven court exhibit that observers said would have a bullet-proof fair use defense.
Righthaven, which also sues over Las Vegas Review-Journal and sports betting material, took plenty of
shots at Hill's attorneys and issued a warning to Hill and others in its Sunday filing dismissing the Hill
case.
* * * *
Highlights from Righthaven's filing, all of which Kane ordered struck from the record:
"Righthavens notice of dismissal is in no way a concession that the defendant is immune from
copyright liability. Righthaven, contrary to the declarations submitted to this court by the defendant and
his mother, has attempted to amicably resolve this matter for well over a month. While a written
settlement agreement was drafted and provided to opposing counsel, additional issues continue to be
raised or otherwise presented that have prevented the parties from resolving the minor differences
between them.
"Simply put, defendants counsel has clearly used the ongoing settlement negotiations as a ruse to make
Righthaven believe this case was on the verge of settlement while concurrently drafting the fifty-six (56)
page (dismissal) motion that was pending before this notice of dismissal was filed.
"Righthaven has acted in good faith at all times during the settlement negotiations in this case.
Moreover, while not a basis for excusing him of liability, Righthaven was unaware of the defendants
alleged medical condition prior to filing suit. In fact, defendants incessant use of the Internet as a means
to post inflammatory statements about Righthaven and about these legal proceedings say more about his
cognitive ability than one would otherwise surmise from the press statements made by his counsel.
"In short, defendant and his counsel wish to prolong these proceedings so that they can continue to use
this case as a means for unjustly attacking Righthaven and its copyright enforcement efforts. Righthaven
is no longer willing to engage in settlement discussions over trivial issues while the defendant and his
counsel seek to extend this action for publicity purposes.
"Accordingly, Righthavens filing of the notice of dismissal closes this case, but in doing so it is not
sanctioning the defendants unauthorized replication of the copyright protected material at issue.
"While the defendant may believe the notice of dismissal evidences his authorization to misappropriate
copyright protected material in the course of his Internet-related conduct, he can continue to do so at his
own peril. Others observing these proceedings should so likewise heed this advice because this notice of
dismissal in no way exonerates any other defendant in any other Righthaven action for stealing
copyright protected material and republishing such material without consent."
!"#$%

Exhibit 8

Order of April 11, 2011
Righthaven v. Hill

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 1:11-cv-00211-JLK
RIGHTHAVEN LLC, a Nevada Limited Liability Company
Plaintiff,
v.
BRIAN D. HILL, an individual,
Defendant.
ORDER

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff has filed a Notice of Voluntary
Dismissal (doc. 17) of its complaint against Defendant Brian D. Hill. As Plaintiff properly notes,
no court order is required to effectuate this dismissal. The majority of Plaintiffs Notice of
Voluntary Dismissal is, however, immaterial and impertinent. Pursuant to my authority under
Fed. R. Civ. P. Rule 12(f), those portions of Plaintiffs Notice of Voluntary Dismissal which are
immaterial and impertinent, namely all text following Plaintiffs statement that The notice
closes the file for this case, are STRICKEN.
Dated: April 11, 2011 BY THE COURT:
/s/ John L. Kane
Senior U.S. District Judge

Exhibit 9

Las Vegas Sun
August 26, 2010

!"#$%&'"#$()*
Courts:
+),'&$-)&#./0*#$1/'2.2"3&*$03&4$
15+$60784/'2.$#)/.$60#.#
!"#$%&'(%&()"*"$#+(,-.$/(0$%&'1()%$1/(2.0+%,(,-33"&/1(
)$-3(4.*'"
Thursday, Aug. 26, 2010 | 4:30 p.m.
A federal judge on Thursday questioned Las Vegas copyright enforcement company Righthaven LLC
about the litigation costs it's expecting defendants to pay.
Righthaven since March has retroactively sued at least 103 website owners around North America after
determining copyrights to Las Vegas Review-Journal stories were infringed on, and then obtaining the
copyrights to those stories from the Review-Journal's owner Stephens Media LLC.
Righthaven is owned by two limited liability companies, each with 50 percent stakes. One of the LLCs
is owned by Las Vegas attorney Steven Gibson, the other by members of Arkansas investment banking
billionaire Warren Stephens' family. The Stephens family investments include Stephens Media and the
Review-Journal.
Righthaven's lawsuits are typically filed against website operators and bloggers without Righthaven first
trying to resolve the infringement issues out of court.
Righthaven says the suits are necessary to earn revenue for itself and to deter widespread online
copyright infringement of newspaper stories.
But critics say the lawsuit campaign involves frivolous lawsuits and a shakedown campaign aimed at
coercing settlements since Righthaven's settlement offers typically are less than the legal costs to fight
the suits.
These charges -- denied by Righthaven -- have been made by defense attorneys as well as the freedom of
speech advocacy group Electronic Frontier Foundation, which entered the fray Wednesday against
Righthaven and which observers say is well staffed with expert copyright law attorneys.
A hearing Thursday in federal court in Las Vegas apparently was the first time one of the Nevada judges
assigned to the Righthaven cases has commented publicly on them. None of the cases has reached a
point where they've gone to trial or a judge has ruled on motions to dismiss.
Thursday's hearing, a telephone conference, was for one of Righthaven's earliest and most controversial
cases: A suit against Allegra Wong of Boston, who published a noncommercial blog about cats, written
from the point of view of cats. Her mistake was to post on her blog a Review-Journal story about a fire
that killed some birds in Las Vegas -- it apparently was posted out of concern for the animals.
Page 1 of 4 Judge questions Righthaven over R-J copyright suit costs - Thursday, Aug. 26, 2010 | 4:3...
6/23/2011 http://www.lasvegassun.com/news/2010/aug/26/judge-questions-righthaven-over-r-j-copyr...
Critics, including a Los Angeles Times media writer, have suggested Righthaven went overboard in that
case, given the nature of Wong's blog and the lack of any profit she could have earned by posting the
Review-Journal story.
Wong, who isn't represented by an attorney, told the court in a letter that she gave the Review-Journal
full credit and a link to the Review-Journal website, and that the story was removed from her blog after
she learned she was being sued.
U.S. Magistrate Judge Robert Johnston asked Gibson and Wong on Thursday what could be done to
settle the case.
Gibson noted media attention about the case and said he would be interested in settling with Wong
immediately and in doing so would show "leniency" and "humaneness."
Gibson said Righthaven's costs in the case would likely total up to $1,800 including the court filing fee,
an expedited copyright registration, costs to serve Wong, legal work and office overhead.
"That would be a low settlement for us," said Gibson, who typically demands damages of $75,000 and
forfeiture of website names but has been known to settle for $5,000 or less and lets settling defendants
keep their website names.
"It's a lot for me," Wong, 57, said of the $1,800, adding she's unemployed and receives financial support
from a companion.
Upon learning of her situation, and despite "what we feel is clearly copyright infringement," Gibson said
he would settle for less, but didn't name an amount. He did amend his statement about Righthaven's
costs as likely coming in at $1,300 to $1,500 rather than the $1,800.
Johnston then asked about provisions in the copyright law allowing him to order damages of just $200
for unwillful infringement and for him to use discretion in awarding costs and fees.
"It sounds like this can be a lot less than four figures," Johnston said. But the judge didn't elaborate on
whether the "less than four figures" comment referred to potential damages, or costs, or both.
Gibson, though, said he wouldn't concede that Wong's infringement was not willful.
"We don't believe the $200 number is applicable in these circumstances," he said.
Johnston then asked about the costs incurred by Righthaven, wondering if Righthaven could have
avoided the $150 costs of service by a Boston constable by simply mailing the suit to Wong and asking
her to voluntarily accept service that way.
Gibson acknowledged mailing lawsuits to defendants and asking them to accept service by mail is an
option, but said efforts to locate Wong and her co-defendant, her son Emerson Wong, were unsuccessful
prior to the filing of the suit.
Wong said she first learned she was being sued when someone from the media tried to communicate
with her by placing a comment on her blog. That's how the Las Vegas Sun tried to contact her for
comment after she was sued.
Since then, Wong said she has taken the blog down because of unwanted media attention including
inquiries from the Los Angeles Times, the Boston Herald and a radio station in New Hampshire.
"I took the blog down several weeks ago because it is not worth it, to be contacted for interviews," she
said.
"I received no letters and no phone calls from Righthaven," Wong said.
The judge also asked Gibson about the legal costs for Wong's suit, wondering what the rate per hour is
for Righthaven's in-house attorneys.
Noting 103 suits have been filed in five months, Johnston said: "I would think it's pretty standardized by
now" and later saying "they all look about the same to me."
Gibson noted circumstances are different in each case. Some of the cases involve jurisdictional issues
for defendants not living in Nevada, and some involve direct postings by website operators like Wong
while others involve third-party posters and these include different legal arguments.
Wong said she alone ran the blog, which her son had registered for her, causing Johnston to ask Gibson
why her son was also named in the suit.
"So someone didn't research that one very well," Johnston said.
Gibson, though, said Emerson Wong is a valid defendant since he was the registrant, administrative
contact, technical contact and billing contact of the Internet domain name allegrawong.com.
The judge asked Gibson about the hourly legal rate he would use in determining costs and Gibson said
that's still being determined.
Johnston asked about the hourly rate for one of the Righthaven attorneys, whom the judge said is a 2007
UNLV law school graduate.
Gibson said the hourly rate for such an attorney at a private law firm would be $160 to $190, though in
Righthaven's case that would be discounted because the attorney serves as in-house counsel.
In the end, the judge said he would schedule a confidential settlement conference by telephone in hopes
that Righthaven can reach an agreement with Wong.
Separately, Righthaven has picked up a new client: WEHCO Media, a privately-owned company in
Little Rock, Ark., that has 15 daily newspapers, 13 weekly newspapers and 13 cable television
companies in Arkansas, Texas, Oklahoma, Missouri, Mississippi and Tennessee.
Its biggest papers include the Arkansas Democrat-Gazette in Little Rock and the Chattanooga Times
Free Press in Tennessee.
Paul Smith, president of WEHCO Newspapers Inc., said in a Democrat-Gazette story Thursday: "It's a
pretty serious matter when someone takes your copy, information you've spent a lot of money to
produce."
He added, according to the story: "I think you'll find many newspapers that [will] use [Righthaven] and
other firms like this to try to stop people from pirating their information."
WEHCO says on its website that it has a partnership with Stephens Media in which the operations of
their Northwest Arkansas publications were combined last November.
Also, Righthaven filed at least its 103rd copyright infringement lawsuit on Wednesday in federal court
in Las Vegas.
The latest defendant is Josephine Franklin, whom Righthaven says has a blog called
therightwingwarriors.wordpress.com. That site allegedly displayed without authorization a June 13
column by Review-Journal columnist Vin Suprynowicz called "Ask the tyrants why they're opposed."
The Review-Journal and its columnist were credited for the information, court records show.
Franklin, whose Twitter account indicates she lives somewhere in California, couldn't immediately be
reached for comment on the allegations.
Las Vegas Sun, 2011, All Rights Reserved. Job openings. Published since 1950. Contact us to
report news, errors or for advertising opportunities.

Exhibit 10

Las Vegas Sun
June 20, 2011

!"#$%$&'()*+,$"--")#*(..(,%/*
01230%4*)2)012."%*%2*&5674%
Monday
20 June 2011
2:01 a.m.
Depending on ones point of view, Las Vegas copyright enforcer Righthaven LLC has either succeeded
in deterring infringements of newspaper industry content or its no-warning lawsuits have unfairly
spread fear throughout the Internet.
In talking to Sharon Sanders, both of those viewpoints are validated.
In dismissing a Righthaven copyright infringement lawsuit on fair use grounds in April, a federal judge
in Las Vegas found Righthavens litigation strategy now involving 274 lawsuits has a chilling
effect on the fair use by others of content Righthaven claims to own.
Sanders, who runs a nonprofit health-information website, says the chilling effect of Righthavens
lawsuits extended far beyond content from Righthavens lawsuit partners, the Las Vegas Review-
Journal and the Denver Post.
Sanders says that chilling effect is continuing even with U.S. District Judge James Mahans fair use
ruling in favor of an Oregon nonprofit that was sued over a Review-Journal story and Judge Roger
Hunts ruling last week that Righthaven didnt have standing to file suits over Review-Journal material.
Sanders is president and editor of FluTrackers.com Inc., in Winter Park, Fla., which serves Internet users
worldwide. That nonprofit website since 2006 has posted some 336,000 reports on the flu and other
diseases reports including full or partial stories from newspapers and other media sources around the
world, as well as government reports.
Sanders has no health care background, having worked in business and real estate. The website was
started by she and other concerned citizens because at the time there was no central online repository of
such information and the U.S. government was expressing great concern about the potential for a flu
pandemic, she said.
Over the years the organization regularly posted news stories crediting the sources and linking to
them and, for the most part, heard no objections from newspapers and news services, she said. In
fact, many newspapers recognized these were public service stories and were happy to let
FluTrackers.com use them because of its public service mission, Sanders said.
A handful of newspapers during this time contacted the organization and expressed concern that too
much of their information was being used. FluTrackers.com immediately reduced these posts to snips
and links, she said.
Then along came Righthaven, which started filing no-warning lawsuits in March 2010 against corporate
and nonprofit website owners, as well as individuals and message-board posters.
Page 1 of 4 Righthaven 'chilling effect' prompts nonprofit to adjust - VEGAS INC
6/23/2011 http://www.vegasinc.com/news/2011/jun/20/righthaven-chilling-effect-prompts-nonprofit-...
I almost fell out of my chair upon learning of Righthaven last summer, Sanders said, explaining the
nonprofit and the individuals behind it were terrified of getting sued.
Its really intimidating. Its not like small claims court, she said of the Righthaven lawsuits, which
typically demand $150,000 in damages, forfeiture of defendants website domain names and computers
and recovery of Righthavens attorneys fees.
(Many defendants have settled in the four-figure range. Hunt has ruled Righthaven cant demand seizure
of domain names and hes said theres merit in arguments Righthaven cant demand attorneys fees for
suits filed by in-house counsel).
Sanders and FluTrackers.com havent been sued by Righthaven it turns out the site had not posted
any material from Righthavens partners.
Nevertheless, because of Righthaven, Sanders and contributors put the brakes on posting news stories
even basic press-release rewrites announcing flu-shot clinics that likely would be protected by fair use.
That meant vital health information, which used to receive 120,000 hits per year, was for the most part
no longer posted.
It had a real crushing effect on what were doing, Sanders said, explaining the posting of news stories
and items has slowed to a trickle.
The group was fearful that Righthaven, which was marketing its services to the newspaper industry last
year, would sign up a client that could claim its material was misappropriated by FluTrackers.com.
They were trying to sell this to everyone. The Denver Post hes connected to The AP, she said of
William Dean Singleton, publisher of the Post who is also chairman of the board of directors of the
Associated Press.
And Sanders had good reason to worry as Righthaven had sued a handful of hobby and nonprofit health-
related websites. Among them: New Hampshire-based EMTCity.com covering the emergency medical
technician field, the Trauma Intervention Program of Southern Nevada, the Hepatitis C Support Project
of San Francisco; and Fremont, Neb., group Honor Inc., which educates medical professionals about the
One & Only Campaign, promoting One Syringe Only One Time to prevent the spread of diseases
among patients.
While worrying about a Righthaven lawsuit last year, Sanders said she recognized most newspaper
editors and managers wouldnt hit her nonprofit with a no-warning lawsuit.
Were a volunteer organization. We dont want trouble from anybody. And most people are kind
hearted and would not go after us, she said.
Still, she worked to protect FluTrackers.com by posting a DMCA notice. As authorized by the Digital
Millennium Copyright Act, websites can register with the U.S. Copyright Office and post a notice for
the receipt of copyright infringement complaints. This somewhat insulates websites from lawsuits but
only for material posted by third parties. Information posted by website owners and operators is not
protected by the DMCA notices.
Sanders said she also enlisted the help of the Citizen Media Law Project at Harvard University, which
she said promised to help her group if it was sued by Righthaven.
While acknowledging Righthaven has helped spread awareness of the rules for re-posting content from
newspapers and other news generators, Sanders says Mahans fair use ruling in the case of the nonprofit
Center for Intercultural Organizing in Portland, Ore., has validated her nonprofits online activities over
the years.
That has put everything weve done in the OK column, Sanders said.
Still, with Righthaven appealing that ruling and an earlier fair use loss, and copyright case law still
unsettled, Sanders said it will take some time before her group is comfortable with posting newspaper
content on a wide scale again.
Well never put anything up from Stephens Media, she said of the owner of the Review-Journal.
Sanders story is similar to that of Colleen Lynn, who regularly posted stories about vicious dog attacks
on her nonprofit website but then had to worry about a Righthaven lawsuit.
Lynn was so upset about Righthaven she started the Righthaven Victims website, which provides news,
commentary and resources for Righthaven defendants.
As for Righthaven and Stephens Media, theyve repeatedly said the no-warning lawsuits are necessary
to crack down on rampant infringement of newspaper content. While critics complaint about the no-
warning nature of the suits, Righthaven points out in the suits that alleged infringers didnt bother
calling or emailing the Review-Journal or the Denver Post to seek permission before using their content.
Though takedown notices or requests are used by most newspapers when they become aware of
infringements, Righthaven CEO Steven Gibson says they are ineffective.
And Stephens Media attorneys have said the Righthaven lawsuits are dealing with a "parasitic business
model" in which newspaper content is regularly stolen and used by news aggregators.
Righthaven doesnt sue director competitors for advertising dollars of the Review-Journal and the
Denver Post local TV stations and the Las Vegas Sun, for instance.
Nor does it sue the biggest news aggregators like Google, Yahoo, MSN, Bing and AOL; or the busiest
sites including Facebook and YouTube.
In fact, just two websites sued by Righthaven appear in the Alexa.com list of the 500 most-visited
websites in the United States. Those are BuzzFeed and the Drudge Report both sued over a Denver
Post TSA pat-down photo.
Instead of suing heavily-trafficked sites, Righthaven lawsuits typically target special-interest websites
like those run by the Democratic Underground and Dana Eisers Tea Party group in South Carolina,
both of which responded with counterclaims and/or lawsuits against Righthaven, Stephens Media and
the Denver Post.
Wall Street analysts, in the meantime, have not identified the types of infringements Righthaven sues
over as affecting newspaper revenue one way or another keeping in mind that many of these sites
actually drive traffic to the source newspaper.
In their parasitic business model filing last month, attorneys for Righthaven wrote: It is widely
known that traditional media sources, including newspapers, face a myriad of challenges that threaten
their survival in the digital era. Indeed, news stories and websites chronicling the imminent death of the
American newspaper abound. Whether this doomsday scenario applies to a given newspaper is, of
course, fact specific but there can be no dispute that all newspapers face increasing competition from
countless websites on the Internet.
Yet the 2010 annual reports of two of the nations largest newspaper companies, Gannett Co. Inc. and
The New York Times Co., make no mention of such a parisitic or even infringing business model
having affected their revenue.
The only mention of potential infringements by the The New York Times Co. was this warning:
Unauthorized parties may attempt to copy or otherwise obtain and use our content, services, technology
and other intellectual property, and we cannot be certain that the steps we have taken to protect our
proprietary rights will prevent any misappropriation or confusion among consumers and merchants, or
unauthorized use of these rights.
If we are unable to procure, protect and enforce our intellectual property rights, we may not realize the
full value of these assets, and our business may suffer. If we must litigate in the United States or
elsewhere to enforce our intellectual property rights or determine the validity and scope of the
proprietary rights of others, such litigation may be costly and divert the attention of our management,
the warning said.
Gannett said in its report that its local newspaper websites saw growth in 2010 of 11 percent in page
views and 14 percent in visitors.
As for competition, Gannett said: Web sites which compete for the principal traditional classified
advertising revenue streams such as real estate, employment and automotive had the most significant
impact on the companys revenue results.
The newspaper industry is still dominated by print advertising revenue and its big problem, according to
a 2010 report by Moodys Investors Service, is that the erosion of newspapers readership share and
pricing power continues unabated as readers embrace free and low-cost content on the web and mobile
devices.
Much of that free content is provided by newspapers themselves, along with their traditional radio and
TV station competitors.
!"#$%

Exhibit 11

CNN / Fortune Magazine
January 6, 2011

Apple 2.0 Big Tech Tech Tumblr Innovation Nation Video Tablet View
comments
Righthaven Q&A: C&D letters
don't stop infringement
January 6, 2011: 12:39 PM ET
Steven Gibson, founder of Righthaven, spoke with Fortune for our story on his work in
copyright lawsuits. Below, an edited excerpt of our interview with him.
Interview by John Patrick Pullen, contributor
Fortune: In the column from May 2010
where Review-Journal writer Sherman
Frederick described new arrangements
with Righthaven, he called it a technology
firm. How is Righthaven a technology
firm?
Gibson: Sherman Frederick does not speak
for us, and we did not ghostwrite that
column. I've never met him.
Righthaven deploys technology to ascertain
infringements and reproductions. Righthaven
is a company that is very forward looking in
understanding that the economy of the next several decades will become further developed as an
information-based economy, therefore the assets that will be be created will be protect by
copyright.
"If you operate a website (liberal or otherwise) and don't know what "fair use" is in the
context of American copyright and Constitutional law, then I suggest you talk to your
copyright lawyer and find out." That's a quote from Frederick's column. But fair use is open
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Page 1 of 6 Righthaven Q&A: C&D letters don't stop infringement - Fortune Tech
6/13/2011 http://tech.fortune.cnn.com/2011/01/06/righthaven-qa-cd-letters-dont-stop-infringement/
to interpretation. Would it be fair to say that your lawsuits are actively refining that
interpretation for the digital age?
That's a great question. Yes, I believe that theres no question that the fair use debate is a function
of case law and on various facts that arise for court ajudication and jury consideration with respect
for fair use. We are absolutely continuing to develop the law of copyright in the area in respect to
fair use. There is very substantial guidance in the courts already that make it clear that the kinds of
reproduction that Righthaven is addressing is not fair use.
Not surprisingly, you've met with a large amount of criticism on the Internet, but you are
within your rights to protect your copyrights. Why haven't an equally vocal group of
advocates spoken out on your behalf?
I receive numerous communications from the community represented by authors and publishers
that are very supportive of us. You need to put things in perspective. What is the quality or the
volume of the infringement community versus the creative community? There are generally more
takers than creators.
Your work merely because you published it on the Internet they believe it's public domain.
Unfortunately that is ignorance of the law. I think the more insightful commentary is whether the
law needs to be changed. That's a legitimate debate.
Righthaven has been characterized as being "Copyright Trolls," a construct based off the
"Patent Troll" scheme of companies buying up under-protected patents and then suing
people who have utilized the technology. What's your response to this characterization?
If it's name calling without substance, it's not worthy of comment. If the comment is that we are
taking a fresh approach to help stem the tide of infringement on the internet and not intended to
be merely pejorative I don't have a problem with it. It's hard for me to reply to name calling,
because it's not part of the debate of copyright protection or not.
Assuming that's not fair use, what is being really said? Is it a complaint that the infringement
community was caught and is not obeying the law? Or is it that there is some enforcement out
there, and that's not really a bad thing. If there's a community of thieves that complained
vociferously and then called the people who were doing it bad names, then it is what it is.
Many of the organizations that you have brought suit against are small, sometimes even
non-profits. How has it come to pass that so many of the companies have been small and
relatively underfunded or unable to pay for legal defense?
There have been many organizations that are apparently well funded. We don't have the ability to
determine the relative wealth when we file a lawsuit. There are many individuals that are wealthier
than some companies, and there are many non-profits that have a funding stream that is
substantial. I believe the 9th Circuit Court of appeals in the Worldwide Church of God case does
not create an immunity against copyright infringement. If that were true, on a weekly basis, any
nonprofit could copy Fortune magazine and distribute it. That doesnt make sense.
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We believe that if a website publishes a work that is searchable, the fact that it may appear on a
large media domain or smaller domain isn't neessarily going to redefine if it was redirected. If a
viewer does a search, the topical story may first appear first on the non-profit rather than the
original site. We don't discriminate in terms of infringement, whether the owner has a lot or a little
money.
Frankly, if I thought about it and I just did now if Righthaven was after money only, logic
would dictate that we would only going after people who had a lot of money. If pure greed was the
only single motivator, we would potentially ignore those who don't have as much money as the
others.
That said, we're a for profit company.... There's nothing in any legal doctrine that indicates that we
do not have the right to operate in a manner that will have market constraints.
Why not do as most other media companies do, and ask that offenders take down the
copyright material?
I disagree with the premise of your question, but for the sake of argument, let's assume the
premise is true. You're asking why we don't do what someone else does.... I believe that there is a
substantial growth of opinion and understanding that cease and decist letters are not effective in
stemming the tide of infringement. If we as a society determine that copyright infringement is not
something our society wants to see, and minimization is a societal good if those premises are
true its fair to say there's little incentive for people who receive a cease and desist to stop
illegally reproducing content. If you know that that you'll only get a letter....
Most, if not all, of your cases seek the maximum penalty of $150,000. Considering that some
of the instances are excerpts, and the small size (or nonprofit status) of the typical
defendent, why do you seek that much?
That's a technical legal matter. There are certain things I'm advised under counsel not to discuss.
You also seek forfeiture of the offender's domain name. This award is unprecedented in
copyright law you've even admitted as much in the DiBiase case: "Righthaven concedes
that such relief is not authorized under the Copyright Act. That concession aside,
Righthaven maintains the court is empowered to grant such relief under appropriate
circumstances." Why does Righthaven feel they are entitled to the offender's domain name,
and how many domain names has Righthaven been awarded to date?
It may very well be that is something that we continue to seek, depending on how the case
evolves. For the most part, the vast majority of our cases have settled. For those who haven't,
we're at the beginning stages of litigation, so the issue hasn't been settled yet. As we pursue
default judgements, it will be very relevant.
Righthaven has filed a suit against the Drudge Report, alleging that they reposted a
photograph from the Denver Post one of your new clients. Would it be fair to say that
Drudge is Righthaven's most well-known and funded legal opponent to date? It seems
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uncharacteristic for Righthaven to go after such a high-profile media company why the
change?
I can't say that. It would be speculation on my behalf. You can look through our cases yourself and
see.
In Righthaven v. the Center for Intercultural Organizing (CIO), the issue of harm has been
brought up. How are these cases harming your company, as owners of the copyright?
I that the issue of harm is not technically concordant with the principles of the copyright act. The
copyright owner is entitled to seek out the infringement and receive damage from that infringement.
Righthaven is the copyright owner, and we are following the law with respect to the courts.
The best question is to look at the factors in the court's assessing of the the damages under
particular circumstances. We have not had an opportunity yet to address those questions before
any court. There will be a time to do so. The vast majority are settling and the rest are in the
nascent realm of litigation.
In that case, you have objected to the friend of the court brief filed by Jason Schultz. In that
brief, Schultz argued that the case should be dismissed under fair use, and that the Review-
Journal encourages readers to share their stories. Why do you object to this brief, other
than the arguments outlined in it?
We have given a detailed, well reasoned response to this. I don't have time to go over it again.
How is it different for EFF to be involved or inserting their involvement in these cases, than
for Righthaven who did not own the copyrights at the time of the infringements to
raise them in the first place?
There are remarkable differences between the two. You're talking about the difference between
someone taking ownership and someone being in the position of legal counsel. Then you're talking
about the difference of being hired as a legal counsel and then coming in as an amicus. Then
you're talking about the difference between coordinating legal counsel and being legal counsel. [If
discussed in detail], it would be a long and potentially out of context answer that I would give you.
But Schultz's argument raises an excellent point: In the Social Media era, where does
sharing end, stealing begin, and fair use continue to apply? Isn't that what Righthaven is
really fighting to define?
No. I think that for the most part, we were very, very concerned about professor Schultz brief in our
cases. In our view they were looking at the context of, for example, is Google or Google-type
entities copyright infringers for thumbnails which is very different than where the defendant, in
that case, publicly displayed 100 percent of an article. In the case that Professor Schultz is
discussing, we don't believe there is a meaningful debate that someone can take an article 100
verbatim and replicate it on the internet. We don't believe that society, by way of the courts, is
debating that question.
Society may be debating, tangentially, linking or cacheing and many of those questions have
been answered. What really is happening here is a realization of the infringement community that
the days of merely receive a takedown letter are over, and that people will have a means to protect
their ownership rights. Like you're taught in grammar school, it's not right to take someone else's
work, whether it's cheating or plagiarizing. Whether the Internet permits you to do it, that doesn't
make it right. If you read the case law on these issues... even the Las Vegas Sun agrees no one
out there thinks 100 percent taking is fair use. At some level, I applaud the Las Vegas Sun on that
report. Might I add, they seem to be providing more balanced reporting on this issue of late.
Posted in: Copyright, Copyright Infringement, copyrightinfringement, Denver Post, Domain name, Electronic Frontier
Foundation, Las Vegas Review-Journal, Lawsuit, Patent Troll, Stephens Media
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Exhibit 12

Sherman Frederick Blog
September 1, 2010


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Protecting newspaper content -- You either do it, or you don't
Posted by Sherman Frederick
Wednesday, Sep. 01, 2010 at 06:20 PM
As with most things, the Las Vegas Review-Journal and the Las Vegas Sun find themselves at opposite ends of
how to protect a newspaper's content.
As revealed in this odd and self-serving navel-gazing piece, the Las Vegas Sun's strategy for content
protection is for all practical purposes no strategy at all. A Sun editor or secretary writes a nice "please stop"
letter when it stumbles upon a content stealer, but it's done purely on a hit-and-miss basis, and rarely -- if
ever -- does the Sun follow through with suit.
In the long run, that business "strategy" will get the Sun and any other newspaper foolish enough to think
similarly, exactly what they deserve -- a ticket to irrelevancy in the sea of Internet information and eventually
an "Out of Business" sign.
I could add a few comments about the Sun's perfect track record for bad business decisions, but saving
journalism is too important to let my point get lost in the usual Sun competitive BS.
That point is this: If newspapers want to control their own destiny they must protect their content from theft.
It can't be hit and miss. It must be effective and hard-nosed, using the Constitutional power of copyright law.
In this Internet environment, "please stop" letters don't work. Nor, as this Sun reporter naively argues, does it
benefit the news enterprise through a patchwork of friendly links that allegedly enhance traffic and then
mysteriously increases revenue to a website. Any newspaper that seriously adopts that as a business strategy
hasn't done the math.
Since we've gotten tough with content stealers by using a company called Righthaven, which has developed
software to effectively identify and sue copyright infringers, we've seen no erosion in revenue or traffic to our
website. And, even if we did, the loss of the Review-Journal's unique content, which drives our franchise in
both print and the web, would far outweigh the benefit of rewarding a content thief with a link.
So, some newspapers (and I hope it isn't many) will go the way of the Dodo if they continue to deal with this
problem by crossing their fingers and hoping that unrestrained stealing of their content will have no bad effect
on their long-term viability. As for me and my newspaper company, we choose sustainability by aggressively
protecting our content.
That's a real strategy likely to sustain a news organization. Why? Because no matter what technology may
bring to the news business, it's compelling and unique content -- let me repeat that: "compelling and unique
content" -- that's the magic ingredient. Always has been, always will be.
My newspaper does this every day, 24-7. We do it in print, audio and video. We do it with breaking news,
sports news, prep sports, community news, business, features, etc. If it moves in Las Vegas and Nevada,
we're there. That's why we remain the No. 1 news outlet in Las Vegas, the state and the region -- both before
the Internet and after. Even in this difficult recession -- in which television stations and newspapers like the
Sun have gutted their newsrooms -- we've maintained our news resources, knowing that our lifeblood is the
content we deliver to our customers.
Not for the customers and readers of content thieves. For the customers and readers of the Las Vegas
Review-Journal.
Page 1 of 2 Protecting newspaper content -- You either do it, or you don't - The Complete Las Vegan ...
6/23/2011 http://www.printthis.clickability.com/pt/cpt?expire=&title=Protecting+newspaper+content...
Copyright Stephen Media, LLC. All rights reserved. Any reproduction or distribution (except for personal, non-commercial purposes), in any form or
by any means, without the express written consent of Stephens Media, LLC, is strictly prohibited.
So, I'm asking you nicely once again -- don't steal our content. Or, I promise you, you will meet my little
friend called Righthaven.

Find this article at:
http://www.lvrj.com/blogs/sherm/Protecting_newspaper_content_--_You_either_do_it_or_you_dont.html

Check the box to include the list of links referenced in the article.

Page 2 of 2 Protecting newspaper content -- You either do it, or you don't - The Complete Las Vegan ...
6/23/2011 http://www.printthis.clickability.com/pt/cpt?expire=&title=Protecting+newspaper+content...

Exhibit 13

Las Vegas Sun
June 16, 2011

!"#"$%&#'%(")**%'$+)$,)-.%
.')$+#-/$(%#.#)-("%0).1"1#+$-
Thursday
16 June 2011
12:05 p.m.
Updated
16 June 2011 1:42 p.m.
A federal judges comment that Las Vegas-based copyright enforcer Righthaven LLC likely engaged in
deceitful and dishonest conduct has not gone unnoticed by the State Bar of Nevada.
The State Bar regulates attorneys. Since September or earlier, it has been looking into multiple
grievances involving Righthaven and its CEO, Las Vegas attorney Steven Gibson. Righthaven says it
has obtained copyrights from the Las Vegas Review-Journal and the Denver Post and has filed 274
infringement lawsuits over those copyrights since March 2010.
Gibson hasnt responded to a request for comment on the State Bar inquiry.
A Bar spokesman said "two or possibly three" grievances were pending as of Wednesday.
While disciplinary action by the State Bar is not inevitable, the chances of that happening may have
increased Tuesday when Roger Hunt, chief U.S. District Court judge for Nevada, issued an order
dismissing a Righthaven copyright infringement lawsuit against the Democratic Underground over a Las
Vegas Review-Journal story.
In what legal observers are calling an extraordinary "shock and awe" type of ruling, Hunt wrote in his
dismissal order that:
-- "The court believes that Righthaven has made multiple inaccurate and likely dishonest statements to
the court."
-- A Righthaven claim it controls Review-Journal copyrights "is flagrantly false -- to the point that the
claim is disingenuous, if not outright deceitful."
-- Righthavens failure to disclose that Review-Journal owner Stephens Media LLC was an interested
party in its lawsuits was a "flagrant misrepresentation."
The nature of the grievances under review by the State Bar hasnt been disclosed, but its investigators
are monitoring Righthavens lawsuits in federal court in Las Vegas over Review-Journal and Denver
Post material.
"The matter is under investigation and were following the matters pending in court," said Phillip Pattee,
assistant bar counsel at the State Bar.
In tracking the Righthaven lawsuits, the State Bar will likely pay close attention to sanctions that Hunt is
likely to impose on Righthaven.
Page 1 of 4 State Bar still reviewing grievances against Righthaven - VEGAS INC
6/23/2011 http://www.vegasinc.com/news/2011/jun/16/state-bar-still-reviewing-grievances-against-ri...
Court records suggest the State Bar in reviewing the Righthaven litigation is focusing on two broad
areas:
-- Whether Righthaven and its attorneys have engaged in champerty and barratry generally defined as
the improper incitement and prosecution of lawsuits by parties with no real interest in the outcome and
that hope to profit by such lawsuits.
Attorneys for one of the Righthaven defendants, Thomas DiBiase, for instance, have charged: "DiBiase
asserts that the purported copyright assignment from Stephens Media to Righthaven is a sham and that
Righthaven is engaged in champerty and barratry by filing litigation on copyrights that it does not own."
-- Whether Righthaven and its attorneys have made misrepresentations to the court. If true, that would
appear to be a violation of the Nevada Supreme Courts Rules of Professional Conduct.
These rules say, in part, "It is professional misconduct for a lawyer" to "engage in conduct involving
dishonesty, fraud, deceit or misrepresentation." The rules also say, "A lawyer shall not knowingly make
a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer."
While Gibson hasnt commented on the State Bar investigation, he told the Review-Journal for a story
Wednesday that "certainly there was no intent" to be dishonest with the court.
"It's important to recognize that Righthaven respects the judiciary and respects judicial decisions," he
told the R-J.
And Shawn Mangano, a Las Vegas attorney representing Righthaven, said today:
"In what regard has Righthaven been dishonest and deceitful? By submitting a clarification to the SAA
(Righthaven/Stephens Media copyright contract) that was not considered by the court? I, along with
more than one of the top copyright lawyers in this country, believe the issues presented were not fully
appreciated - particularly in view of the rather fundamental transactional structure of an assignment and
(copyright) license back. As of today, Righthaven maintains that it, and not Stephens Media, holds
ownership of all copyrighted works assigned to it."
Righthaven observer Eric Johnson, an associate professor of law at the University of North Dakota who
tracks copyright issues, said Hunts ruling details multiple potential violations of the Nevada Rules of
Professional Conduct.
"This is a remarkable order," Johnson said. "It could mean serious personal repercussions for those most
intimately involved in Righthaven."
Johnson noted Hunts extraordinary "outright deceitful" comment in his ruling.
"This is strong language for a federal court. It's the kind of stuff that, if you are on the wrong side of it,
would likely cause all the blood to rush to your stomach. Courts deliver defeats to parties all the time,
but they rarely use language like this," Johnson said. "With this kind of pronouncement, and others
elsewhere in the order, I would not be surprised if the State Bar of Nevada brought up the attorneys that
founded Righthaven on professional ethics charges. In fact, this could ultimately end in disbarment for
one or more lawyers."
"Based on (Hunts order), Righthaven definitely appears headed for sanctions. But I suspect that's the tip
of the iceberg for Righthaven's woes from here on out," Johnson said.
In a blog post today, Johnson wrote: "I dont know that Gibson or other attorneys committed
misconduct. That is up to the State Bar of Nevada to determine. I certainly can say at this point that there
is strong reason to believe serious misconduct has occurred, and its more than enough for an
investigation. Gibson and others should, of course, have the opportunity to defend and explain
themselves. But the matter should, at least, be taken seriously by the bar. That is especially the case
where many people have been hurt and public confidence in the legal profession may justifiably be
undermined if nothing is done."
Internet bloggers, in the meantime, are making similar suggestions.
Former Righthaven defendant Michael Leon today advised Righthaven attorney Steven Ganim: "Run
and don't walk to the U.S. Attorney's office and tell them you want full immunity as a cooperating
witness against Righthaven LLC and (attorney Shawn) Mangano. I don't think you realize how serious
being part of a conspiracy to repeatedly lie in federal court is."
Similarly, the Crime & Federalism blog commented: "One would hope that the State Bar of Nevada
would begin an investigation asking why a federal judge `believes that Righthaven has made multiple
inaccurate and likely dishonest statements to the court, involving at least one 'flagrant
misrepresentation.'"
The State Bar of Nevada investigation is just one of many problems facing Righthaven.
On top of that, for Righthaven, Stephens Media and MediaNews Group, owner of the Denver Post:
--Attorneys are considering filing a class-action claim against Righthaven on behalf of defendants that
settled with Righthaven with the understanding that Righthaven had standing to sue. That understanding
was mistaken, according to Hunt's ruling.
--A class-action counterclaim is pending in federal court in Denver against Righthaven on behalf of
Denver Post defendants.
--A state court lawsuit has been filed in South Carolina against Righthaven, Stephens Media,
MediaNews and several current and former Righthaven attorneys.
--Stephens Media remains a defendant in three counterclaims filed by Righthaven defendants.
Righthaven, in the meantime, this week was called a "vampire" for its conduct in its lawsuit against
retired Denver-area military nurse Denise Nichols.
The case involves veterans advocates and defendants Leon of Fitchburg, Wisc., and Nichols of Wheat
Ridge, Colo., who were sued by Righthaven in Las Vegas over allegations material from both the
Review-Journal and the Denver Post was posted on the veteranstoday.com website.
The suit was dismissed against Leon because he was not served in time and it was dropped against
Nichols after she was served with the wrong version of the suit a version not naming her as a
defendant.
Nichols case also attracted attention because shes a retired military nurse with health problems and she
complained some Righthaven lawsuits were showing disrespect to veterans while the case against her
was further endangering her health.
Nichols has now filed papers demanding Righthaven pay her $1,500 to $1,600 in attorneys fees and
costs.
Righthaven is balking at paying Nichols legal costs, saying it dismissed her case with prejudice,
meaning it cant sue her again over her alleged infringement. Righthaven also acknowledged her
"extensive prior military service to the United States of America" and "her apparent medical condition."
In its latest filing against Nichols on June 6, Righthaven complained: "Nichols motion should also be
denied because it is nothing short of an attempt at trying to extract blood money in the form of an
attorneys fee award to which she is not entitled."
Nichols fired back this week, commenting " Righthaven is the one that is the vampire. Righthaven buys
articles well after the articles are printed. So what right do they have to do this?"
"I am arguing that this court has within in its authority and discretion to award me attorneys fees and
costs incurred for Righthavens admitted mistakes and outright dishonesty demonstrated in this matter,"
Nichols wrote in a letter to U.S. District Court Judge Gloria Navarro.
She also objected to the "blood money" comment.
"This is an offensive and foolish statement that deserves condemnation. Righthaven caused me great
stress while I am dealing with critical medical issues that are serious!," Nichols wrote in her letter.
Navarro hasnt indicated when she may rule on Nichols request for recovery of her costs; as well as a
request by an attorney representing Leon that the attorney be paid as well.
!"#$%

Exhibit 14

Order of April 14, 2011
Righthaven v. Democratic
Underground

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DISTRICT OF NEVADA
* * *
RIGHTHAVEN LLC, )
)
Plaintiff, ) Case No. 2:10-cv-1356-RLH-GWF
)
vs. ) O R D E R
) (Motion for Reconsideration#78)
DEMOCRATIC UNDERGROUND, LLC, )
a District of Columbia limited-liability )
company, and DAVID ALLEN, an )
individual, )
)
Defendants. )
____________________________________)
)
DEMOCRATIC UNDERGROUND, LLC, )
a District of Columbia limited-liability )
company, )
)
Counterclaimant, )
)
vs. )
)
RIGHTHAVEN LLC, a Nevada Limited- )
liability compamy; and and STEPHENS )
MEDIA LLC, a Nevada limited liability )
company, )
)
Counterdefendants. )
____________________________________)
Before the Court is Righthaven LLCs Motion for Reconsideration of March 9, 2011
Order Granting Defendants Motion for Leave to File Supplemental Memorandum or,
Alternatively, Application for Briefing Schedule to Address Supplemental Brief (#78, filed
March 9, 2011), and Counter-Defendant Stephens Media LLCs Joinder to the Motion (#81, also filed
March 9, 2011).
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The bases for reconsideration are (1) that Plaintiff Righthaven and Counter-Defendant
Stephens Media did not have an opportunity to respond to the motion, and (2) that movants are
piqued that Defendant Democratic Underground refuses to let Righthaven dismiss its claims and
refuses to dismiss Defendants counterclaims. If the second reason was the basis for the opposition
the parties would have presented had they been given an opportunity to oppose the motion, neither
basis has merit. The Supplemental Memorandum goes to the very heart of this litigation.
Righthaven and Stephens Media have attempted to create a cottage industry of filing
copyright claims, making large claims for damages and then settling claims for pennies on the dollar,
with defendants who do not want to incur the costs of defending the lawsuits, are now offended when
someone has turned the tables on them and insisting on a judgment in their favor rather than a simple
dismissal of the lawsuit.
The Court makes the determination of what is material to the resolution of this matter,
and what it will entertain. It is not obligated to take the movants word that the contents of the
supplemental memorandum does not or will not make a difference.
Because the information and arguments made in the Supplement Memorandum are
significant, the Court will permit Righthaven and Stephens Media to respond and Democratic
Underground to reply to their response.
IT IS THEREFORE ORDERED that Righthaven LLCs Motion for Reconsideration
of March 9, 2011 Order Granting Defendants Motion for Leave to File Supplemental Memo-
randum or, Alternatively, Application for Briefing Schedule to Address Supplemental Brief
(#78), together with Counter-Defendant Stephens Media LLCs Joinder to the Motion (#81) are
DENIED.
IT IS FURTHER ORDERED that Righthaven and Stephens Media shall file any
response to the Supplemental Memorandum no later than May 8, 2011, and Democratic Underground
and David Allen shall file any reply thereto no later than May 20, 2011. Any Response or Reply shall
/ / / /
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be limited to ten (10) pages, and no request for extensions of time or to exceed page limits will be
entertained.
Dated: April 14, 2011.
____________________________________
Roger L. Hunt
Chief United States District Judge
3

Exhibit 15

Commentary from
Professor Eric E.
Johnson

Blog Law Blog
Law professor Eric E. Johnson on the law of blogs
Righthaven Goes Down Hard: A Look at the Democratic Underground Decision
Bush White House Allegedly Directed CIA to Spy on American Blogger
The State Bar of Nevada Should Consider Attorney Misconduct
Charges Against Steve Gibson of Righthaven
I believe it is time for the State Bar of Nevada to begin an attorney
misconduct investigation of Righthaven CEO Steve Gibson and, perhaps, other lawyers at the center
of the Righthaven enterprise.
When I first read about the Righthaven lawsuits, I thought what Righthaven was doing was morally
deplorable, but I assumed that Righthaven was on solid legal footing. I believed, as apparently did
many judges, that Righthaven had become the legitimate owner of the copyrights upon which it was
suing.
Righthavens acquisition of those copyrights from Stephens Media mostly to stories from the Las
Vegas Review-Journal were prerequisites to being able to sue hapless bloggers and other
individuals, and then threaten them with $150,000 statutory damage awards for having reposted
articles or photos. By doing this, Righthaven got many individuals to settle for a few thousand dollars
each, allowing Righthaven to do a volume business of minor shakedowns. The Righthaven business
model, while vile, appeared to be perfectly allowable under the law.
But now we know that was not actually true. This week, Judge Roger Hunt of the U.S. District Court
for the District of Nevada issued an order [pdf] in the case of Righthaven v. Democratic Underground
that paints a withering portrait of plaintiff conduct in the case. We now know the assignments of
copyrights by newspaper owner Stephens Media to Righthaven were, in fact, sham transactions. And
because of Righthavens failure to be candid about the underlying arrangements with Stephens Media,
it is now clear, as the court found, that Righthaven made material misrepresentations to the court.
Based on the federal courts findings, this looks to be egregious attorney misconduct.
The federal court appears to be on the verge of sanctioning Righthaven. But the State Bar of Nevada
can go much further. The bar has the ability to subject Gibson and other lawyers at the center of the
enterprise to professional discipline, including, if warranted, disbarment.
Page 1 of 11 The State Bar of Nevada Should Consider Attorney Misconduct Charges Against Steve G...
6/23/2011 http://bloglawblog.com/blog/?p=3045
I very much regret suggesting a misconduct investigation against any attorney, but this situation
appears to be one with many real-life victims, and the behavior at issue, based on Judge Hunts
findings, is wholly incompatible with the ethical standards expected of lawyers.
Consider what has happened: Righthaven lawyers constructed a sham transaction, and then made
multiple misrepresentations to courts and third parties in order to hide the sham nature of the
transaction. This was done in a bid to get a number of unsophisticated, unrepresented defendants to
fork over substantial settlement payments, largely out of fear or because of their financial inability to
mount a defense.
The potential to pervert our civil justice system in this way is one of the most important reasons
attorneys are required to demonstrate a high moral character as a prerequisite to receiving a license to
practice law. Righthavens behavior, in my opinion, is incompatible with that standard.
Lets look at the Nevada Rules of Professional Conduct. Rule 3.3, called Candor Toward the
Tribunal, states that A lawyer shall not knowingly Make a false statement of fact or law to a
tribunal Another provision, Rule 8.4, states, It is professional misconduct for a lawyer to
Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] Engage in conduct
that is prejudicial to the administration of justice[.]
Those rules appear to have been violated in substantial ways. Consider the following quote from this
weeks order from pages 10 and 11, discussing the Strategic Alliance Agreement (SAA), between
Righthaven and Stephens Media:
As the undersigned issued one of the orders Righthaven cites for this argument, the
undersigned is well aware that Righthaven led the district judges of this district to believe
that it was the true owner of the copyright in the relevant news articles. Righthaven did
not disclose the true nature of the transaction by disclosing the SAA or Stephens Medias
pecuniary interests. As the SAA makes abundantly clear, Stephens Media retained the
exclusive rights, never actually transferring them to Righthaven regardless of
Righthavens and Stephens Medias current contentions. Further, Righthaven also failed
to disclose Stephens Media in its certificates of interested parties, despite Stephens
Medias right to proceeds from these lawsuits. (Dkt. #79, Ex. 1, SAA Section 5 (granting
Stephens Media a fifty percent interest in any recovery, minus costs).) [T]hose orders
were tainted by Righthavens failure to disclose the SAA and Stephens Medias true
interest
And on page 15 of the order:
As shown in the preceding pages, the Court believes that Righthaven has made multiple
inaccurate and likely dishonest statements to the Court. Here, however, the Court will
only focus on the most factually brazen: Righthavens failure to disclose Stephens Media
as an interested party in Righthavens Certificate of Interested Parties. Making this
failure more egregious, not only did Righthaven fail to identify Stephens Media as an
interested party in this suit, the Court believes that Righthaven failed to disclose Stephens
Media as an interested party in any of its approximately 200 cases filed in this District.
Based on these findings, it appears that Rule 3.3 was violated multiple times by one or more attorneys
on the Righthaven side. Moreover, again, based on Judge Hunts findings, Rule 8.4 was violated in a
very significant way in the Democratic Underground case. Of course, Rule 8.4 was likely additionally
violated in many other Righthaven cases as well, if not all of them.
I dont know that Gibson or other attorneys committed misconduct. That is up to the State Bar of
Nevada to determine. I certainly can say at this point that there is strong reason to believe serious
misconduct has occurred, and its more than enough for an investigation. Gibson and others should, of
course, have the opportunity to defend and explain themselves. But the matter should, at least, be
taken seriously by the bar. That is especially the case where many people have been hurt and public
confidence in the legal profession may justifiably be undermined if nothing is done.
Tags: legal ethics, Steve Gibson
This entry was posted on Thursday, June 16th, 2011 at 2:48 PM and is filed under copyright, intellectual property, lawsuits
against bloggers, lawyering, reposting, Righthaven, thugsters. You can follow any responses to this entry through the RSS
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3 Responses to The State Bar of Nevada Should Consider Attorney Misconduct
Charges Against Steve Gibson of Righthaven
University Diaries A Victory for Bloggers and for Free Speech says:
June 16, 2011 at 4:33 PM
[...] Eric Johnson, a specialist in copyright law, reminds us exactly what Righthaven did, and
draws some moral conclusions: Righthaven lawyers [...]
1.
Law Profession Eric Johnsons Take On The New Righthaven Matters A Stern Glance says:
June 16, 2011 at 4:46 PM
[...] Eric Johnsons Blog Law Blog: I believe it is time for the State Bar of Nevada to begin an
attorney misconduct [...]
2.
Ken Bingham says:
June 16, 2011 at 7:58 PM
Not only a bar investigation but I also believe this warents attention from the Nevada Attorney
general for a possible criminal investigation too, and not just Righthaven. This is a conspiracy
involving at least one major news conglomerate, Stephens Media, and possibly even Media
News Group if their arrangement is similar. This may very well turn out to be the greatest
scandal to ever hit the newspaper industry.
It is ironic that the Las Vegas Review Journal claimed that lawsuits are the only way to protect
their business but it could turn out the way they went about it is what destroys them in the end.
3.
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Page 11 of 11 The State Bar of Nevada Should Consider Attorney Misconduct Charges Against Steve...

Exhibit 16

Righthavens Opposition
To Thomas A. DiBiases
Motion to Dismiss
December 2, 2010

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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
(702) 683-4788 telephone
(702) 922-3851 facsimile

J. CHARLES COONS, ESQ.
Nevada Bar No. 10553
ccoons@righthaven.com
Assistant General Counsel at Righthaven LLC
Righthaven LLC
(702) 527-5900

Attorneys for Plaintiff Righthaven LLC

UNI T ED ST A T ES DISTRI CT COURT

DISTRI C T OF NE VADA

RIGHTHAVEN LLC, a Nevada limited-
liability company,

Plaintiff,
v.

THOMAS A. DIBIASE, an individual,
Defendant.

Case No.: 2:10-cv-01343-RLH-PAL

RIGHTHAVENLLCS OPPOSI TI ON T O
T HOMAS A. DI BI ASES MOTI ON T O
DISMISS

AND RELATED COUNTERCLAIM

Plaintiff RighthavenLLC(Righthaven) hereby opposes ThomasA.DiBiases
(DiBiase)Motion to Dismiss. (Doc. # 17.)
Righthavenssubmissionisbasedon the below Memorandum of Points and Authorities,
the Declaration of Shawn A. Mangano, Esq. (the Mangano Decl.), the pleadings and papers on
file in this action, any oral argument allowed by this Court, and on any other matter of which this
Court takes notice.
Case 2:10-cv-01343-RLH -PAL Document 29 Filed 12/02/10 Page 1 of 8 2:10-cv-03075-RMG -JDA Date Filed 06/23/11 Entry Number 53-16 Page 2 of 9
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Dated this 1
st
day of December, 2010.

By: /s/ Shawn A. Mangano
Nevada Bar No. 6730
Tel: (702) 683-4788
Fax: (702) 922-3851

Righthaven LLC
(702) 527-5900


ME MORANDUM OF POI NTS AND AUT HORI TI ES

I. I NTRODUC TI ON
DiBiase does not ask this Court to dismiss, pursuant to Federal Rule of Civil Procedure
12(b)(6) (Rule 12(b)(6)), the copyright infringement claim asserted against him by
Righthaven. (Doc. # 17.) Rather, DiBiase attacks some, but not all, of the forms of relief
sought in this action for his infringing conduct. (Id. at 2.) Specifically, DiBiase asks the Court
to dismiss with prejudice: (1) Righthavens request for attorneys fees based on the mistaken
assumption it is represented only by in-house counsel; and (2) its request for transfer of the
domain name used to infringe the work at-issue. (Id.)
DiBiases motion to dismiss must be denied because Righthaven is represented by
outside counsel in this action. As such, the Court must cannot decide the issue of whether in-
house counsels fees are recoverable under Rule 12(b)(6) because Righthaven has properly
alleged recovery of attorney fees to which it must be presumed to be entitled at this stage of the
proceedings. That said, Righthaven certainly maintains that in-house counsel fees are
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recoverable in this action. Such a determination, however, is inappropriate in deciding DiBiases

motion to dismiss in view of the facts before the Court.
DiBiases attack on Righthavens request for transfer of the domain used to commit the
alleged infringement also is not subject to dismissal pursuant to Rule 12(b)(6). While such relief
admittedly is not expressly authorized in copyright infringement actions, the Court is still
equitably empowered to grant such relief under a variety of circumstances. Given the nascent
stage of this action, including the fact absolutely no discovery has been conducted, dismissal
with prejudice of Righthavens domain transfer request is improper. If the facts in this action
reveal such relief is improper and that the Court should not order transfer of the domain, then it
should not do so and DiBiase will suffer absolutely no harm. In contrast, the Court must be
certain of its need to deny Righthaven the right to at least seek such relief at this stage of the
proceedings under Rule 12(b)(6). Righthaven asserts the Court should not do so at this stage of
the proceedings under a Rule 12(b)(6) analysis. Accordingly, Righthaven respectfully asks the
Court to deny DiBiases motion to dismiss.

I I. F ACTS
Righthaven filed this copyright infringement action on August 9, 2010. (Doc. # 1.)
Righthaven asserts that it is the owner of the copyrighted literary work entitled: Man who killed
wife sought ultimate sentence (theWork). (Doc. # 1-1 at 3-5; Compl. Ex. 2.) The Work was
granted registration by the United States Copyright Office on July 27, 2010. (Doc. # 1-1 at 12-
13; Compl. Ex. 4.)
Righthaven contends that DiBiase is the owner of the Internet domain, and maintains
control of the content posted at same, foundat<nobodycases.com>(theWebsite). (Doc. # 1
at 2; Compl. at 2.) Righthaven further asserts that on or about June 11, 2010, DiBiase displayed
an unauthorized 100% reproduction of the Work on the Website. (Doc. # 1 at 2, Doc. 1-1 at 6-8;
Compl. at 2, Ex. 3.) Based on the alleged infringement of the Work, Righthaven seeks, among
other things, entry of a permanent injunction and an award of statutory damages against DiBiase.
(Id. at 5-6.) Righthaven has demanded a jury trial in this case. (Id. at 6.)
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On October 29, 2010, DiBiase answered the Complaint.(Doc.#19.)DiBiasesanswer

specifically denied that he had committed copyright infringement. (Id. at210,Mr.DiBiase
deniesthathehascommittedcopyrightinfringement.). DiBiasesansweralsoasserted
numerous affirmative defenses, including failure to state a claim upon which relief can be
granted and innocent intent. (Id. at 4-5.) DiBiasesresponsivepleadingadditionallyasserted a
Counterclaim, which Righthaven has moved the Court to dismiss or strike. (Id. at 5-9; Doc. #
25.)
Concurrently with answering the Complaint, DiBiase filed the instant motion to dismiss
(the Motion). (Doc. # 17.) As stated above, the Motion does not challenge the substance of
Righthavens copyright infringement claim. Rather, the Motion challenges Righthavens
entitlement to allege certain forms relief in the Complaint. (Id. at 2.) Specifically, the Motion
challenges Righthavens right to allege the recovery of attorneys fees in this case based on
DiBiases alleged copyright infringement. (Id.) The Motion also challenges Righthavens
ability to allege surrender of the Website as a form of relief in its Complaint. (Id.) Righthaven
maintains DiBiases Motion should be denied in its entirety as argued below.

I I I. ST ANDARDS APPLI CABL E T O DI BI ASES MOTI ON T O DISMISS
Rule 12(b)(6) authorizes a party to bring a motion to dismiss on the basis that asserted
allegations fail to state a claim upon which relief can be granted. FED.R.CIV.P. 12(b)(6). Federal
pleadings merely require a short and plain statement of the claim and the factual grounds upon
which it rests so as to provide the defending party with fair notice of the allegations made against
it. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Conley v. Gibson, 355 U.S. 41, 47
(1957). In deciding a Rule 12(b)(6) motion, the court must accept all material allegations in the
complaint as well as any reasonable inferences to be drawn from them as true. Doe v. United
States, 419 F.3d 1058, 1062 (9th Cir. 2005); Ecologyv.UnitedStatesDeptofAirForce,411
F.3d 1092, 1096 (9th Cir. 2005). Dismissal with prejudice is only appropriate when permitting
amendment of the allegations would prove futile. In re Silicon Graphics, Inc. Sec. Litig., 183
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F.3d 970, 991 (9th Cir. 1999). Righthaven asserts that application of the foregoing standards to
DiBiases Motion in view of the arguments contained herein should result in its denial.

I V. ARGUMENT
A. Dismissal of Righthavens Request for an Award of Attorneys Fees is
Inappropriate Given That Outside Counsel has Been Engaged.
DiBiases Motion asserts that Righthaven is not entitled to allege the recovery of
attorneys fees under section 505 of the Copyright Act based on the alleged absence of an
independent attorney-client relationship. (Doc. # 17 at 12.) Righthavens request for an award
of attorneys fees in this action cannot be dismissed under Rule 12(b)(6) because it has engaged
outside counsel in this action. (Mangano Decl. 3.) As such, an independent attorney-client
relationship exists in this case, thereby defeating DiBiases Motion as to this ground.
That said, Righthaven certainly does not concede in-house fees are unrecoverable in this
action. In fact, Righthaven maintains that in-house fees are recoverable. This dispute, however,
need not be decided by the Court under Rule 12(b)(6) because Righthaven has alleged relief, the
recovery of attorneys fees, to which it is entitled under section 505 of the Copyright Act should
it prevail in this action. The amount of recovery for said fees, or the source of work upon the
fees are predicated, is immaterial for purposes of the Courts inquiry under Rule 12(b)(6).
Accordingly, DiBiases request for dismissal with prejudice of Righthavens request for an
award of attorneys fees must be denied.

B. Dismissal of Righthavens Request for Transfer of the Website is Authorized
Under the Courts Inherent Authority and is Inappropriate at This Stage of the
Proceedings.
DiBiases Motion also attacks Righthavens request for surrender of the Website as a
form of relief in this action. (Doc. # 17 at 2.) Righthaven concedes that such relief is not
authorized under the Copyright Act. That concession aside, Righthaven maintains the Court is
empowered to grant such relief under appropriate circumstances. Given the procedural posture
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of this action, however, Righthaven is unable to ascertain whether surrender of the Website is
appropriate. Accordingly, dismissal of such relief is inappropriate under a Rule 12(b)(6)
analysis.
Righthaven has unquestionably asked this Court to enter equitable relief in the form of a
preliminary and permanent injunction. (Doc. # 1 at 5.) Righthaven has also requested this
Court enter such relief as it deems just and appropriate in this action. (Id.) Thus, it is beyond
question Righthaven has asked for and alleged facts sufficient to invoke the Courts equitable
powers. More importantly for purposes of deciding the Motion, Righthaven has not sought
transfer of the Website as a form of relief exclusively authorized by the Copyright Act. In fact,
Righthaven acknowledges that such relief would be subject to the Courts discretion and only
upon the presentation of evidence which would justify transfer of the Website.
It cannot be disputed that federal courts are authorized to freeze assets in the aid of
ultimately satisfying a judgment in a case. See FED. R. CIV. P. 64. Such action may be taken
pursuant to federal law or state law. Id. The freezing or seizure of assets may be warranted
where damages are sought in addition to equitable relief. See United States ex rel. Rahman v.
Oncology Assocs., P. C., 198 F.3d 489, 498 (4th Cir. 1999). In fact, a district court may freeze
assets before trial to secure the payment of attorneys fees. See Commodity Futures Trading
Commn v. Noble Metals Intl, Inc., 67 F.3d 766, 774-75 (9th Cir. 1995). As recognized by the
panel in Oncology Associates, when the plaintiff . . . asserts a cognizable claim . . . or seeks a
remedy involving those assets, a court may in the interim preserve the status quo pending
judgment . . . . 198 F.3d at 496.
As the above cited authorities reveal, the Court is empowered to take action to preserve
and marshal assets prior to entry of judgment. The obviously corollary of this is the power to
take such action upon the presentation of evidence and entry of judgment. That said, Righthaven
has not asked the Court to transfer the Website as part of a preliminary injunction. In fact,
Righthaven has not conducted any discovery in this case and has not ascertained whether transfer
of the Website is appropriate at any stage of the proceedings or if it will ultimately ask the Court
for such relief. Dismissal pursuant to Rule 12(b)(6) at the inception of this case and in view of
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the Courts inherent ability to grant relief directed to a defendants assets, which in this case
would potentially include the Website, is wholly improper. To the extent the Court determines
that additional allegations or claims for relief are required to support the requested surrender of
the Website, Righthaven asks for leave to amend it Complaint in view of any such decision.

V. CONCLUSI ON
For the foregoing reasons, Righthaven respectfully requests theCourtdismissDiBiases
Motion in its entirety. To the extent the Court determines the request for transfer of the Website
is not properly alleged in this action, Righthaven respectfully requests the grant leave to amend
to assert appropriate allegations to support such a request. Righthaven additionally asks the
Court grant such other relief as the deemed proper and just.
Dated this 1
st
day of December, 2010.

Nevada Bar No. 6730
Tel: (702) 683-4788
Fax: (702) 922-3851

Righthaven LLC
(702) 527-5900


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CERTI FI C AT E OF SERVI CE
Pursuant to Federal Rule of Civil Procedure 5(b), I hereby certify that I am a
representative of Righthaven LLC and that on this 1
st
day of December, 2010, I caused the
RIGHTHAVENLLCS OPPOSI TI ON T O T H OMAS A. DIBI ASES MOTI ON T O
DISMISS to be served bytheCourtsCM/ECFsystem.


Nevada Bar No. 6730
Tel: (702) 683-4788
Fax: (702) 922-3851

Righthaven LLC
(702) 527-5900



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Exhibit 1

Order of June 15, 2011

recoverable in this action. Such a determination, however, is inappropriate in deciding DiBiases

On October 29, 2010, DiBiase answered the Complaint.(Doc.#19.)DiBiasesanswer

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