The same folks who have been filing amicus briefs charging Righthaven
with the unauthorized practice of law in South Carolina and Nevada have made a new filing in Colorado, where a single judge has been reviewing the legality of
all of Righthaven's cases in the state. In that filing, the group -- Citizens Against Litigation Abuse -- don't so much focus on the unauthorized practice of law claim, but highlight a separate, but related point: that if Righthaven is really a "law firm" and the newspapers are its "clients," then there has been no actual assignment of copyrights at all (the key point of dispute these days in Nevada), but rather the strategic agreement between the newspapers and Righthaven really represents a "representation agreement."
This potentially becomes an issue because Righthaven's current strategy appears to be to continually "amend" its agreement until it can find that right formula in which a judge says that the copyright has actually been transferred, without totally cutting the newspaper out of things. However, the CALA filing says that if you view the agreement as a law firm representation agreement, it doesn't matter how many times Righthaven amends the agreement, it never becomes an assignment of copyright:
RIGHTHAVEN IS NOT AN ASSIGNEE, IT IS A LAW FIRM IN DISGUISE
Amicus invites the Court to ignore the Righthaven for a moment and consider a general proposition: Assume that a company has an actionable claim. The company wants to hire someone to pursue a lawsuit over the claim. The company finds a firm that employs lawyers and handles lawsuits to do just that. In fact, prosecuting lawsuits is all the firm does. So the company and the firm strike a deal: the firm will prosecute the claim, and the firm and the company will split any recovery, after expenses, 50/50.
In the real world, that arrangement is called a “contingency fee representation agreement,” the “company” is the client, and the “firm” is a law firm. But Righthaven does not appear to operate in the real world. Righthaven claims this exact arrangement is actually an “assignment,” that it is not a law firm but a “copyright enforcer,” and that its clients are not clients but are “key relationships.” See Righthaven Website, Ex. L. This is nothing but corporate doublespeak, deployed in an attempt to camouflage an arrangement that is totally impermissible outside the context of a lawyer-client relationship.
Moreover, Righthaven claims to be engaged in a novel pursuit presenting new and undecided issues in copyright enforcement. Those claims are accurate only so long as one does not consider precedents relating to the validity of assignments and the unauthorized practice of law. What Righthaven tries to present as some inventive new way of enforcing copyrights is nothing more than a copyright-specific form of a scheme that has been rejected, so far as Amicus can determine, by every court that has ever examined it. When considering the following arguments and authorities, Amicus submits that it will be extremely useful to keep in mind this language from the SAA: “Assignor hereby engages Righthaven to undertake the pursuit of Infringement Actions.”
It'll be interesting to see if this argument resonates with the court, because if it does, Righthaven (and its backers) could be in for yet another pretty serious smackdown... and they won't be able to keep trying to amend the agreement to "fix" things.
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