Tag Archives: standing

Ninth Circuit affirms that Righthaven had no standing to sue as a copyright owner

Righthaven LLC v. Hoehn, No. 22-16751 (9th Cir. May 9, 2013)

The copyright holder in certain newspaper articles granted to Righthaven the awkwardly-articulated rights “requisite to have Righthaven recognized as the copyright owner of the [articles] 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 . . . in and to the [articles].”

After the district court dismissed some of Righthaven’s cases for lack of standing, saying that Righthaven was not an owner of an “exclusive right” as required by the Copyright Act to maintain the suit, Righthaven sought review with the Ninth Circuit. On appeal, the court affirmed the lower court’s holding that Righthaven lacked standing.

The court found that the language used to grant rights to Righthaven did not in itself prove that Righthaven owned any exclusive rights. It held that the language in an assignment agreement purporting to transfer ownership is not conclusive. Instead, a court must consider the “substance of the transaction.” Since a separate agreement between Righthaven and the copyright holder placed limits on what Righthaven could do with any copyright assigned to it, Righthaven did not actually possess the required exclusive rights under the Copyright Act, and therefore lacked standing to sue.

Kentucky Supreme Court: gambling domain names did not have standing

Com. ex rel. Brown v. Interactive Media Entertainment and Gaming Ass’n, Inc., — S.W.3d —, 2010 WL 997104 (Ky. March 18, 2010)

Back in 2008 the Commonwealth of Kentucky took an extraordinary step in its battle against online gambling. It filed an action in state court seeking to take over 141 domain names that the Commonwealth believed were used for illegal gambling sites. The trial court ordered forfeiture of the domain names.

Kentucky

Lawyers arguing against the forfeiture of the domain names sought a “writ of prohibition” from the appellate court, asking that court to prevent the forfeiture of the domain names. The lawyers appearing before the appellate court fell into two categories: those purporting to actually represent certain domain names (not the domain names’ owners) and those representing gambling trade associations whose members purportedly included some of the registrants of the affected domain names.

The appellate court granted the writ of prohibition. The Commonwealth sought review with the state supreme court. The supreme court dismissed the writ because those arguing against it lacked standing.

Who’s interest was at stake?

The court noted that only a party with a “judicially recognized interest” could challenge the forfeiture of the domain names. The court rejected the notion that the domain names could represent themselves:

An internet domain name does not have an interest in itself any more than a piece of land is interested in its own use. Just as with real property, a domain name cannot own itself; it must be owned by a person or legally recognized entity.

As for the gambling associations, the court held that there could be no “associational standing” because none of the associations would identify any of their members. Associational standing is when an organization (say, for example, the NAACP or a labor union) files suit on behalf of its members. One of the fundamental requirements of associational standing a showing that members of the association would have the right to sue in their individual capacities. Since there was no evidence as to whose interests the associations represented, there was no basis to conclude that the associations’ members would have standing to sue in their own right.

So the court sent the matter back down to the appellate court with orders to vacate the writ of prohibition. But the supreme court also hinted that those affected by the forfeiture could get another bite at the apple: “If a party that can properly establish standing comes forward, the writ petition giving rise to these proceedings could be re-filed with the Court of Appeals.” One would think that at least one brave soul will step forward. Some in the industry seem to hope so.

Other accounts of this story:

No standing to sue Microsoft under XP EULA

Johnson v. Microsoft Corp., No. 06-900, 2008 WL 803124 (W.D. Wash. March 21, 2008).

A number of plaintiffs filed suit against Microsoft in federal court in Washington state, alleging, among other things, that the installation of Windows Genuine Advantage (“WGA”) (which enforces the validity of a user’s version of XP) violated the XP end user license agreement (“EULA”).

Microsoft moved for summary judgment against two of the plaintiffs, arguing that they did not own the computers at the time WGA was installed, and thus these plaintiffs lacked standing. The court agreed and entered summary judgment against these plaintiffs.

The court rejected these plaintiffs’ arguments that they had standing as computer users and business owners to raise the breach of contract claims. The plaintiffs had transferred their ownership to a company before WGA was installed. The parties were therefore not parties to the EULA and lacked privity with any party. Moreover, they could not be treated as third party beneficiaries of the EULA, so they lacked standing.