Defendant Industrial Wind Action's Reply To Plaintiff's Response To Defendant Industrial Wind Action Corp's Motion To Dismiss (Filed July 12, 2010)

Case 2:10-cv-00601-RLH-PAL Document 14 Filed 07/12/10 Page 1 of 23
1 Allen Lichtenstein
Nevada Bar No. 3992
2 3315 Russell Road, No. 222
3 Las Vegas, NV 89120
(702) 433-2666 – phone
4 (702) 433-9591 – fax
allaw@lvcoxmail.com
5 Attorney for Defendants
6 United States District Court
7 District of Nevada
8
RIGHTHAVEN, LLC, a Nevada )
9 limited liability company, )
)
10 Plaintiff , )
v. ) Case No.: 2:10-cv-601-RLH-PAL
11 )
12 INDUSTRIAL WIND ACTION )
CORP., a New Hampshire )
13 corporation; and JONATHAN S. )
LINOWES, an individual resident )
14 of New Hampshire, )
)
15 Defendants. )
______________________________)
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17 DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO
DEFENDANTS’ MOTION TO DISMISS
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Come now Defendants, by and through the undersigned attorney and file this Reply to
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Plaintiff’s Response to Defendants’ Motion to Dismiss Plaintiff’s Complaint based on: 1) failure to
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21 state a cause of action, pursuant to Fed.R.Civ.P. 12(b)(6); 2) lack of subject matter jurisdiction,
22 pursuant to Fed.R.Civ.P. 12(b)(1); and 3) lack of personal jurisdiction, pursuant to Fed.R.Civ.P.
23 12(b)(2), based on all pleadings and papers on file herein and the Memorandum of Points and
24 Authorities attached hereto and any further argument and evidence as may be presented at hearing.
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Dated this 12th day of July 2010
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Respectfully submitted by:
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1 /s/ Allen Lichtenstein

Allen Lichtenstein
2 Nevada Bar No. 3992
Las Vegas, NV 89120
4 (702) 433-2666 – phone
(702) 433-9591 – fax
5 allaw@lvcoxmail.com
Attorney for Defendants
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1 TABLE OF CONTENTS
2 Memorandum of Points and Authorities 1
3
I. Introduction 1
4
II. Argument 2
5
A. Fed.R.Civ. Proc. 12(b)(1) and (12)(b)(6) lack of subject matter 2
6 jurisdiction and failure to state a cause of action.
7 B. Fed.R.Civ.Proc. 12(b)(2) lack of Personal Jurisdiction 6
8
1. Defendants posting of the article does not create 6
9 competition or confuse authorship.
10 2. There was no willful infringement. 7
11 3. General jurisdiction does not exist. 9
12
4. Specific jurisdiction does not exist. 10
13
a. Defendants did not purposefully avail themselves 11
14 of the State of Nevada.
15 b. Defendants did not purposely direct their conduct 11
toward Nevada.
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17 c. Nevada jurisdiction is not reasonable. 14
18 III. Conclusion 15
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1 TABLE OF AUTHORITIES
2 cases
3
ABKCO Music, Inc. V. Harrisongs Music, LTD, 944 F.2d 971 (2nd Cir.1992) 4,5
4
Baldain v. American Home Mortgage Servicing, Inc,. No. 09-0931, 2101 2
5 WL 56143, (E.D. Cal. Jan 5, 2010)
6 Balistreri v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir.1990) 3
7 Brand v. Men love Dodge, 796 F.2d 1070 (9th Cir.1986) 10
8
Brayton Purcell, LLP v. Recordon & Recordon, 575 F.3d 981 (9th Cir. 2009) 6,7
th
9 withdrawn and superceded by 606 F.3rd 1124 (9 Cir. 2010)
10 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) 11,14
11 Calder v. Jones, 465 U.S. 783 (1984) 12,13
12
California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003) 4
13
Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 8,13
14 106 F.3d 284, 289 (9th Cir.1997)
15 Core-Vent Corp. v. NobelIndus. AB, 11 F.3d 1482 (9th Cir. 1993) 14
16
Cot v. Wade, 796 F.2d 981 (7th Cir.1986) 11
17
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th cir.1997) 13
18
Eden Toys, Inc. v. Foresee Undergarment Co., 697 F.2d 27 (2d Cir.1982) 5
19
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) 8
20
21 Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir.1984) 10
22 Hanson v. Denckla, 357 U.S. 235 (1958) 11
23 Harsh v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474 10
(9th Cir.1986)
24
Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) 12
25
26 Lake v. Lake, 817 F.2d 1416 (9th Cir.1987) 10
27 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 4

28
iv
1 Manroot & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082 10
(9th Cir.2000)
2
3 Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir.2002) 12
4 Panavision International, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998) 13
5 Peer International Corporation v. Pausa Records, Inc., 909 F.2d 1332 8,9
(9th Cir. 1990)
6
Plant Food Co-Op v. Wolfkill Feed & Fertilizer Corp., 633 F.2d 155 12
7 (9th Cir.1980)
8
Precision Craftlog Structures, Inc. v. The Cabin Kit Company, No. 10,13
9 CV05-199-S-EJL., 2006 WL 538819 (D.Idaho, March 3, 2006)
10 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir. 1984) 3
11 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) 9,10,11
12 12,13,
14,15
13
Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881 (9th Cir. 2005) 3,4
14
Sinochem Internation Co. Ltd v. Malaysia International Shipping Corp., 1
15 549 U.S. 422 (2007)
16
Skr.-Mor Prod., Inc. v. Sears, Roebuck & Co., 1982 Copyright Law 4
17 Decisions (C.H.) 1982 WL 1264 (S.D.N.Y.1982)
18 Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998) 1
19 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972) 14
20 Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 4
21 (9th Cir.2000)
22 United States v. Northern Trust Co., 372 F.3d 886 (7th Cir.2004) 2
23 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) 11,12

24 statutes/rules
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26 17 U.S.C. § 411 4
27 17 U.S.C. § 501 4
28
v
1 17 U.S.C. § 504 7
2 Fed.R.Civ.P. 12(b)(1) 1,5,6,
3 15
4 Fed.R.Civ.P. 12(b)(2) 1,2,6,

15
5
Fed.R.Civ.P. 12(b)(6) 1,5,6,
6 15
7 treatises
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2A J. Moore, Moore's Federal Practice Par.12.08 at 2271 (2d ed. 1982) 3
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3 M. Nimmer & D. Nimmer, Nimmer on Copyright (1989) 8
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3 M. Nimmer, Nimmer on Copyright, (1990) 5
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Introduction
3
“[A] federal court generally may not rule on the merits of a case without first determining
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that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties
5
(personal jurisdiction).” Sinochem Internation Co. Ltd v. Malaysia International Shipping Corp., 549
6
U.S. 422, 430-431 (2007). “Without jurisdiction the court cannot proceed at all in any cause”; it may
7
8 not assume jurisdiction for the purpose of deciding the merits of the case. Id., at 431, citing Steel Co.
9 v. Citizens for Better Environment, 523 U.S. 83, 94 (1998).
10 On April 27, 2010 Plaintiff Righthaven, LLC, filed its Complaint alleging that Defendants,
11 by posting “no later than March 22, 2010" “a literary work entitled ‘Commissioners grant special
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use permit, variance for Spring Valley wind farm,’” on Defendants’ website, windaction.org, violate
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Plaintiff’s copyright. The article first appeared in the Ely Times, on or about January 20, 2010. The
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Complaint asserted that Righthaven is the current owner of the copyright through assignment. It did
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not, however, aver that Plaintiff held any interest in the article at the time of infringement, which is
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17 a necessary component to any copyright claim. This prompted Defendants to file a Motion to
18 Dismiss, pursuant to Fed.R.Civ.Proc.12(b)(1), lack of subject matter jurisdiction; and
19 Fed.R.Civ.Proc. 12 (b)(6) failure to state a cause of action.
20 In its June 25, 2010 Opposition, Plaintiff specifically stated that it, in fact, had an interest in
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the article in question at the time of the alleged infringement, and also attached a copy of the March
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25, 2010 Assignment. While information provided in a response to a motion does not technically
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cure a defect in a complaint, no purpose would be served in continuing to pursue the Fed.R.Civ.Proc.
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12(b)(1) and Fed.R.Civ.Proc. 12 (b)(6) arguments. Thus, Defendants will withdraw them, stipulating
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26 that an amendment to the Complaint would be able to satisfy the requirements of notice pleading.
27 The Motion to Dismiss, pursuant to Fed.R.Civ.Proc. 12(b)(2), lack of personal jurisdiction,
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1
1 however, remains. Defendants are a small “mom and pop” operation, run from home, in rural New
2 Hampshire. The website acts as an internet clearinghouse for information and stories from around
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the United States and the rest of the world concerning the public interest topic of wind energy and
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its ramifications. As the Declarations of Lisa Linowes show, far less than one percent of the visitors
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to the site are from Nevada, and far less than one percent of the articles posted on the site originate
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from or are about Nevada.(Par. 7) The website is free, entirely passive and non-commercial, and
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8 contains no advertising. (Par. 5) The posted articles, including the one at issue here, contain a clear
9 statement of origin and a hyperlink thereto. (Par. 5)
10 Plaintiff’s argument is that this alone is sufficient to create minimal contacts with the State
11 of Nevada to create personal jurisdiction. Plaintiff, however, is incorrect in this assertion, as case law
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from the Ninth Circuit, the United States Supreme Court and from other jurisdictions show that
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sufficient contact with Nevada does not exist under these circumstances, and that the case should be
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dismissed pursuant to Fed.R.Civ.Proc. 12(b)(2).
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II. Argument
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17 A. Fed.R.Civ. Proc. 12(b)(1) and (12)(b)(6) lack of subject matter jurisdiction and
failure to state a cause of action.
18
On page 7, Defendants cite Baldain v. American Home Mortgage Servicing, Inc,. No. 09-
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0931, 2101 WL 56143, at *5 (E.D. Cal. Jan 5, 2010) for the proposition that “Righthaven was not
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21 required to plead or exhibit the Righthaven assignment.” Baldain is easily distinguishable from the
22 instant case because there, the motion to dismiss revolved around the failure of the complaint to
23 make any statement concerning the statute of limitations.
24 Defendants argue that these allegations should nonetheless be dismissed on statute
of limitations grounds, because plaintiffs have not alleged that the conduct occurred
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within the limitations period. The statute of limitations is an affirmative defense,
26 Fed.R.Civ.P. 8 ( C), and complaints do not ordinarily need to allege the
non-availability of affirmative defenses. United States v. Northern Trust Co., 372
27 F.3d 886, 888 (7th Cir.2004).
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1 Baldain, at *4. While the running of the statute of limitations is an affirmative defense, ownership
2 of a copyright in the work in question or an assignment specifically and explicitly granting an interest
3
in accrued infringement claims is a necessary part of any cause of action for infringement. See,
4
Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 883-884 (9th Cir. 2005).
5
The decision in Baldain noted that in Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,
6
534 (9th Cir. 1984) the Ninth Circuit stated that “[a] complaint may be dismissed as a matter of law
7
8 for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a
9 cognizable legal claim.” (citing 2A J. Moore, Moore's Federal Practice Par.12.08 at 2271 (2d ed.
10 1982)); see also, Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990); Baldain, at
11 *3.
12
Here, Plaintiff’s Complaint contains insufficient allegation of material facts to create a
13
cognizable legal claim. While the Complaint makes sufficient allegation that, it was not the author
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of the work not the original owner it is the current owner of the copyright in question and that it was
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assigned the copyright at some unspecified time, that the alleged infringement occurred no later than
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17 March 22, 2010; and that it subsequently registered the copyright the following month, Righthaven‘s
18 Complaint never makes the simple but necessary allegation that it, in fact, had any interest in the
19 work at the time of the alleged infringement. Without such simple allegation, there is no cognizable
20 claim for relief under any legal theory.
21
Plaintiff’s Opposition goes to great lengths to argue that the Assignment is presumptively
22
valid, and that it is not necessary for the Complaint to attach the Assignment or to discuss when it
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was made or what terms it contained. All of this is true, but irrelevant. Defendant’s Motion was not
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based on the failure to provide the document nor to disclose its terms. While such would have been
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26 helpful, notice pleading does not require it. The flaw, instead, was that the Complaint never even
27 asserted that Righthaven had any interest in the work at the time Plaintiff alleges the infringement
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3
1 occurred.
2 Stating that Righthaven has a current Assignment, even while creating a presumption of a
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valid present interest, for the purposes of evaluating a Motion to Dismiss, does not create any
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presumption whatsoever, concerning an interest at the time of an alleged earlier infringement.
5
Righthaven’s Complaint failed to meet the requirements of Article III standing. See, California Pro-
6
Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003):
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8 To satisfy the Article III case or controversy requirement, CPLC [plaintiff] must
establish, among other things, that it has suffered a constitutionally cognizable
9 injury-in-fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992) (explaining that the “irreducible constitutional
10 minimum of standing contains three elements”: (1) an injury-in-fact, (2) causation,
and (3) a likelihood that a favorable decision will redress plaintiff's injury). In
11 deciding whether CPLC has suffered an injury-in-fact making this case justiciable,
12 we need not quibble with semantics. Whether we frame our jurisdictional inquiry as
one of standing or of ripeness, the analysis is the same. See Thomas v. Anchorage
13 Equal Rights Commission, 220 F.3d 1134,1138 (9th Cir.2000)(noting that “in many
cases, ripeness coincides squarely with standing's injury in fact prong”). For
14 simplicity, we will refer to our analysis under the “standing”
15 328 F.3d at 1093-1094.
16
The Ninth Circuit, in Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 883-884 (9th
17
Cir. 2005), noted that “[c]opyright is a creature of statute, and the only rights that exist under
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copyright law are those granted by statute.” Moreover, The legal or beneficial owner of an exclusive
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right under a copyright is entitled, subject to the requirements of [17 U.S.C.] section 411, to institute
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21 an action for any infringement of that particular right committed while he or she is the owner of it.”
22 Id. at 884, Clearly, the mere assertion of the current assignment of a copyright does not, by itself,
23 create even an inference of standing for an accrued cause of action. ABKCO Music, Inc. V.
24 Harrisongs Music, LTD, 944 F.2d 971 (2nd Cir.1992).
25
The legal or beneficial owner of an exclusive right under a copyright is entitled to
26 bring actions for infringements of that right occurring during the period of its
ownership. 17 U.S.C. § 501(b). Thus, a copyright owner can assign its copyright but,
27 if the accrued causes of action are not expressly included in the assignment, the
assignee will not be able to prosecute them. See Skr.-Mor Prod., Inc. v. Sears,
28
4
1 Roebuck & Co., 1982 Copyright Law Decisions (C.H.) ¶ 25,397 at p. 17,298, 1982
WL 1264 (S.D.N.Y.1982); 3 M. Nimmer, Nimmer on Copyright, § 12-02, at 12-30
2 (1990) ( Nimmer ). Rather, the assignee is only entitled to bring actions for
3 infringements that were committed while it was the copyright owner and the assignor
retains the right to bring actions accruing during its ownership of the right, even if
4 the actions are brought subsequent to the assignment. Nimmer, § 12.02 at
12-29-12-30. Finally, the Copyright Act does not permit copyright holders to choose
5 third parties to bring suits on their behalf. See Eden Toys, Inc. v. Foresee
Undergarment Co., 697 F.2d 27, 32 n. 3 (2d Cir.1982).
6
944 F.2d at 980.
7
8 In Silvers, the Ninth Circuit endorsed the Second Circuit’s finding in ABKCO, that while a
9 copyright holder could not merely contractually assign the right to bring actions for infringement
10 without also assigning the copyright, the reverse is not true. A copyright holder can assign the
11 copyright without also assigning any rights to accrued causes of action. 404 F.3d at 890, citing
12
ABKCO, 944 F.2d at 981.
13
The failure of the Complaint to aver that Righthaven had any interest in the work in question
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at the time the alleged infringement occurred, rendered said Complaint inadequate under both
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Fed.R.Civ. Proc. 12(b)(1) and 12(b)(6). This deficiency prompted the Motion to Dismiss pursuant
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17 to those two provisions. Subsequently, in Plaintiff’s Opposition Motion Righthaven did assert that
18 it had an Assignment giving it an interest in the alleged accrued cause of action that is the subject
19 of this case. It also produced a copy of the Assignment, although that, in itself, was not required.
20 What is required, and was missing from the Complaint, but present in the Opposition brief, is the
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assertion that Righthaven possesses an interest in any copyright infringement action concerning the
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material at issue which may have occurred at the time of the alleged infringement.
23
Clearly, then, it would be contrary to the cause of judicial economy for Defendants, in light
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of the statements contained within the Opposition brief, to continue to pursue the Motion to Dismiss
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26 pursuant to Sections 12(b)(1) and 12(b)(6). Moreover, Defendants are willing to stipulate to an
27 amendment to Plaintiff’s Complaint stating that Plaintiff’s Assignment provided it with sufficient
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1 putative interest in the copyright and the ability to pursue a cause of action, at least sufficient to meet
2 the standard for notice pleading.
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B. Fed.R.Civ.Proc. 12(b)(2) Lack of Personal Jurisdiction
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Thus, while the Motion to Dismiss pursuant to Fed.R.Civ. Proc. 12(b)(1) and 12(b)(6) are
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no longer matters of dispute for the Court to consider, the same cannot be said for Motion to Dismiss
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pursuant to Fed.R.Civ. Proc. 12(b)(2), the lack of personal jurisdiction over the Defendants.
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8 Plaintiff’s argument in favor of personal jurisdiction is based entirely on the fact that the material
9 at issue in this case, that was originally published in a Nevada newspaper, the Ely Times, was
10 subsequently posted on Defendants’ passive, noncommercial Website, with a hyperlink to the Ely
11 Times Website. Although not the subject of this lawsuit, Plaintiff alleges other postings on
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Defendants’ Website from sources originating in Nevada. There is no other claim in the Complaint
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of any other contact by Defendants with the State of Nevada, apart from those posting, complete with
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hyperlinks to the original authors.
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1. Defendants posting of the article does not create competition or confuse
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authorship.
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On pages 21-22 of the Opposition brief, Plaintiff argues that Defendants are “willful
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infringers” and that the posting of the article by Defendants “created competition for potential
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viewers, confused authorship, and amounted to express aiming at Nevada residents.” (Opposition
20
th
21 brief, at 22), citing Brayton Purcell, LLP v. Recordon & Recordon, 575 F.3d 981,987 (9 Cir. 2009)
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22 withdrawn and superceded by 606 F.3rd 1124 (9 Cir. 2010).
23 The competition claim is a curious one. Plaintiff acknowledges that the article itself was
24 created by a third party and first published in the Ely Times on January 20, 2010. (Opposition brief,
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at 3) Righthaven’s assignment occurred over two months later, on or about March 25, 2010.
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Plaintiff’s Complaint set the time frame for the alleged infringement as around March 22, 2010.
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(Complaint at Par. 71). The article posted on Defendants’ Website, as shown in Exhibit 16 attached
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1 to the Complaint, unequivocally states that the author was Patrick Timothy Mullikin of the Ely
2 Times. The hyperlink accompanying the article on Defendants’ Website that linked to the Website
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of the Ely Times was also clear and unmistakable. There can be no confusion as to original
4
authorship. This is clearly unlike the situation in Brayton Purcell which involved two law firms in
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direct commercial competition in the relatively small legal specialty of elder law.
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Brayton Purcell is a leader in this burgeoning speciality, with a practice extending
7 throughout California. Given the paucity of firms with elder abuse expertise, any use
8 of the infringing material by Recordon to advertise on its website places Recordon
in direct competition with Brayton Purcell throughout California. Prospective clients
9 in Northern California viewing the two firms' websites are likely to be confused as
to the material's true author, and some may erroneously believe Brayton Purcell is the
10 infringing party, harming its business reputation.
11 606 F.3d at 1129.
12
Obviously, the situation in the instant case is entirely different. Defendants are not in the
13
business of producing a local newspaper in Ely, Nevada. Instead, as stated in the Declaration of Lisa
14
Linowes, they are not in competition with the Ely Times, and certainly not in competition with
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Righthaven, LLC, (Par. 12) which is a company specifically set up and “grubstaked” by Stephens
16
1
17 Media for the sole purpose of bringing this lawsuit and others like it. Plaintiff publishes neither
18 newspapers nor Internet articles about wind power. In fact, Plaintiff’s Prayer for Relief on page 10
19 of the Complaint asks solely for statutory damages.2 (“3. Award Righthaven statutory damages for
20 the willful infringement of the Work, pursuant to 17 U.S.C. §504 ( C).”
21
2. There was no willful infringement.
22
The entire thrust of Plaintiff’s argument is not about any actual loss or confusion of source,
23
24 1
See, “Copyright theft: We're not taking it anymore, posted by Sherman Frederick Friday,
25 May. 28, 2010 at 02:40 PM, www.lvrj.com/blogs/date?&startDate-28-2010&calendar (“We
grubstaked and contracted with a company called Righthaven. It's a local technology company
26
whose only job is to protect copyrighted content.”)
27 2
Defendants are not disputing Plaintiffs right to choose to request statutory damages. This,
28 request, however, without more, does not demonstrate any actual loss to Plaintiff.
7
1 but instead, involves the premise that by posting the Ely Times article on the windaction.org
2 Website, Defendants willfully infringed on the copyright in that article assigned to Righthaven. (See,
3
Opposition, p. 21-23). Thus, on page 20 of the Opposition brief, Plaintiff cites Columbia Pictures
4
Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 289 (9th Cir.1997), rev'd on other
5
grounds, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) for the argument that
6
mere posting of the article in question settles the issue and that “no further elemental or factored
7
8 analysis is required.” This assumption, however, is incorrect.
9 Intentionally posting an” article on a passive Website does not, in and of itself, create willful
10 infringement. In Peer International Corporation v. Pausa Records, Inc., 909 F.2d 1332 (9th Cir.
11 1990), the Ninth Circuit stated that there is a scienter requirement in order for “willful” infringement
12
to occur.
13
Neither the Copyright Act or its legislative history defines “willful.” However, “[i]t
14 seems clear that as here used ‘willfully’ means with knowledge that the defendant's
conduct constitutes copyright infringement.” 3 M. Nimmer & D. Nimmer, Nimmer
15 on Copyright § 1404[B], at 14-40.2-.3 (1989).
16
909 F.2d at 1336, n. 3.
17
The Peer International Court also noted that, “[t]o refute evidence of willful infringement,
18
Pausa must not only establish its good faith belief in the innocence of its conduct, it must also show
19
that it was reasonable in holding such a belief.” Id. citing 3 M. Nimmer & D. Nimmer, Nimmer on
20
21 Copyright § 14.04[B], at 14-40.3 (1989). Here, Par. 10 of the May 26, 2010 sworn Declaration of
22 Lisa Linowes, attached to Defendants’ Motion to Dismiss, attests to the “good faith belief in the
23 innocence of [Defendants] conduct.”(“The article in question was posted without any intention of
24 harming or infringing on the copyright of Righthaven or anyone else.”) This is reiterated in the July
25
12, 2010 Declaration of Lisa Linowes attached hereto.(“At the time of the posting of the article, I
26
did not believe that infringed on anyone’s copyright.) Nor can it be claimed that Defendants did not
27
have a reasonable basis for this belief.
28
8
1 One reason for not believing that the posting of the article would infringe on
anyone’s copyright, is that over the past five years, we have posted somewhere
2 between 28,000 and 29,000 articles on the passive, non-commercial Website, and
3 have never been subject to any lawsuit for copyright infringement for any of those
articles until now. Nor am I aware of any similar passive non-commercial Website
4 that has been sued for copyright infringement merely for posting news articles from
around the United States and the rest of the world, concerning a matter of public
5 policy and interest.
6 Id. at Par. 13.
On pages 20-21 of its Opposition brief, Plaintiff asserts that the “Court must take the
7
8 uncontroverted allegations in Righthaven’s Complaint as true,” citing Schwarzenegger v. Fred
th
9 Martin Motor Co., 374 F.3d 797, 800 (9 Cir. 2004). The only facts that Plaintiff relies on, however,
10 is that Defendants posted the Ely Times article on their Website, that the posting was intentional, and
11 that Defendants had previously posted other articles concerning wind energy that had originated in
12
Nevada. These facts are indeed uncontroverted.3 The assertion that these facts translate into willful
13
infringement, however, is a legal conclusion that is not entitled to a similar presumption. Moreover,
14
Plaintiff’s conclusions concerning its claim of willful infringement are not uncontroverted. As noted
15
above, the attached July 12, 2010 Declaration of Lisa Linowes attests to Defendants’ good faith
16
17 belief in the innocence of their conduct, and that holding such a belief was reasonable. (Par. 13) The
18 reasonableness of Defendants’ good faith belief is bolstered by the lack of on point case law
19 supporting Plaintiff’s position.
20 In contrast, Plaintiff does not at all address the Peer International standards. Instead, it relies
21
solely on the fact of the posting by Defendants. Without more, however, there is insufficient basis
22
for this Court to conclude that there was willful infringement.
23
3. General jurisdiction does not exist.
24
On page 23 , Plaintiff argues for personal jurisdiction on a general jurisdictional basis, again
25
26
27 3
As noted in the Declaration of Lisa Linowes certain of the articles alleged to originate in
28 Nevada, actually originated elsewhere.
9
1 based solely on the fact of Defendants posting content on their Website that originated in Nevada.
2 This is insufficient basis as general jurisdiction applies only to situations where the contacts with the
3
state are significant and non-sporadic. See, Precision Craftlog Structures, Inc. v. The Cabin Kit
4
Company, No. CV05-199-S-EJL., 2006 WL 538819 (D.Idaho, March 3, 2006):
5
This [general jurisdiction] occurs when there are “substantial” or “continuous and
6 systematic” contacts with the forum state. Manroot & Masters, Inc. v. Augusta Nat.
Inc., 223 F.3d 1082, 1086 (9th Cir.2000). “The standard for establishing general
7 jurisdiction is 'fairly high', Id. (quoting Brand v. Men love Dodge, 796 F.2d 1070,
8 1073 (9th Cir.1986)), and requires that the defendant's contacts be of the sort that
approximates physical presence.” Manroot & Masters, Inc., 223 F.3d at 1086, (citing
9 Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1331 (9th Cir.1984)). There are
several factors to consider when determining general jurisdiction: “whether defendant
10 makes sales, solicits or engages in business in the state, serves the state's markets,
designates an agent for service of process, holds a license, or is incorporated there.”
11 Manroot & Masters, Inc., 223 F.3d at 1086; see also Harsh v. Blue Cross, Blue
12 Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir.1986).
13 2006 WL 538819 at *3. None of those factors appear in this case, or are even alleged. General
14 jurisdiction does not exist.
15 4. Specific jurisdiction does not exist.
16
On page 24 of its Opposition brief, Plaintiff argues in favor of specific jurisdiction under the
17
three-part test set for in Schwarzenegger, which states as follows:
18
(1) The non-resident defendant must purposefully direct his activities or consummate
19 some transaction with the forum or resident thereof; or perform some act by which
he purposefully avails himself of the privilege of conducting activities in the forum,
20 thereby invoking the benefits and protections of its laws;
21
(2) the claim must be one which arises out of or relates to the defendant's
22 forum-related activities; and
23 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e.
it must be reasonable.
24
374 F.3d at 802, citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987).
25
26 Plaintiff bears the burden of demonstrating the first two prongs. 374 F.3d at 802. Here,
27 Righthaven is unable to meet this burden. Plaintiff may attempt to meet the first prong by showing
28
10
1 that Defendants either: 1) purposefully availed themselves of the privilege of conducting activities
2 in Nevada nor purposefully directed their activities toward Nevada. Id.
3
a. Defendants did not purposefully avail themselves of the State of
4 Nevada.
5 Purposeful availment involves conducting activities within a state so as to take advantage of

6 that state’s services and protections. The Schwarzenegger Court defined purposeful availment as
7 follows:
8
A showing that a defendant purposefully availed himself of the privilege of doing
9 business in a forum state typically consists of evidence of the defendant's actions in
the forum, such as executing or performing a contract there. By taking such actions,
10 a defendant “purposefully avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its laws.” Hanson v.
11 Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In return for
12 these “benefits and protections,” a defendant must-as a quid pro quo-“submit to the
burdens of litigation in that forum.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
13 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Cot v. Wade, 796 F.2d 981, 984 (7th
Cir.1986) (“[personal jurisdiction over nonresidents of a state is a quid for a quo that
14 consists of the state's extending protection or other services to the nonresident”); see,
e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559,
15 62 L.Ed.2d 490 (1980) (finding no personal jurisdiction in Oklahoma where
defendants “avail[ed] themselves of none of the privileges and benefits of Oklahoma
16
law”).
17
374 F.3d at 802.
18
In the instant case, there is neither quid nor quo. Defendants conducted no business in the
19
State of Nevada, nor did they “purposefully avails itself of the privilege of conducting activities
20
21 within the forum State, thus invoking the benefits and protections of its laws.” Thus, Plaintiff cannot
22 meet the first prong via a purposeful availment theory.
23 b. Defendants did not purposely direct their conduct toward
Nevada.
24
Neither does a purposeful direction theory aid Plaintiff’s case. Purposeful direction is
25
26 defined by the Schwarzenegger Court as follows:
27 A showing that a defendant purposefully directed his conduct toward a forum state,
by contrast, usually consists of evidence of the defendant's actions outside the forum
28
11
1 state that are directed at the forum, such as the distribution in the forum state of
goods originating elsewhere. Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
2 774-75, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (finding purposeful direction where
3 defendant published magazines in Ohio and circulated them in the forum state, New
Hampshire); accord Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 899 (9th
4 Cir.2002) (finding purposeful direction where defendant distributed its pop music
albums from Europe in the forum state, California); see also World-Wide
5 Volkswagen, 444 U.S. at 297-98, 100 S.Ct. 559 (noting that a “forum State does not
exceed its powers under the Due Process Clause if it asserts personal jurisdiction
6 over a corporation that delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum State”); Plant
7 Food Co-Op v. Wolfkill Feed & Fertilizer Corp., 633 F.2d 155, 158-60 (9th
8 Cir.1980) (relying on this language in World-Wide Volkswagen to hold that a
Canadian fertilizer distributor that shipped defective or mislabeled fertilizer to
9 Montana may properly be subject to personal jurisdiction there).
10 Purposeful direction is evaluated under the three-part effects test from Calder v. Jones, 465
11 U.S. 783 (1984) The test requires that a defendant have “(1) committed an intentional act, (2)
12
expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered
13
in the forum state.” Schwarzenegger,374 F.3d at 805. The Calder test requires that all three prongs
14
be met before jurisdiction can be conferred. Id.
15
While Plaintiff continues to argue that the posting of the article was expressly aimed at a
16
17 Nevada audience, in competition with the Ely Times, both facts and logic belie this assertion. The
18 attached sworn Declaration of Lisa Linowes notes that a minuscule .16% of the visitors to the
19 Website are from Nevada. Moreover, the number of articles posted on the Website that have been
20 cited by Plaintiff. Furthermore, of the thousands of articles posted on the Website, those originating
21
in or even pertaining to events or activities within the State of Nevada are truly a drop in the bucket,
22
and do not and cannot show any express targeting of Nevada. In fact, if anything, they show the
23
opposite.
24
As for the third prong of the effects test, there is no demonstrable or even speculative harm
25
26 suffered in Nevada do to the posting on Defendants’ Website. No one can seriously maintain that
27 the limited reach and circulation of the Ely Times was diminished by the appearance of one of its
28
12
1 articles on a Website that acts as a clearinghouse for information concerning wind energy. If
2 anything, the posting might have helped rather than hurt the Ely Times by exposing the paper to
3
people across the United States and the world who had never heard of that newspaper. Of course,
4
that scenario is almost as speculative and implausible as the assertion of any purported harm. In
5
short, under the Calder effects test, no personal jurisdiction exists. Nor does Columbia, supra, 106
6
F.3d at 289, as Plaintiff suggests on page 23 of the Opposition brief automatically confer specific
7
8 jurisdiction. As the Precision Craftlog Court noted:
9 Columbia Pictures does not establish a per se rule for infringement cases, but instead
supports the finding the Court should evaluate the case under the effects test for an
10 intentional act. Specifically, this Court finds the Ninth Circuit has not interpreted
Calder as broad as the Seventh Circuit or as Plaintiff requests. See Cybersell, Inc. v.
11 Cybersell, Inc., 130 F.3d 414 (9th cir.1997); Panavision International, L.P. v.
12 Toeppen, 141 F.3d 1316 (9th Cir.1998) (there must be “something more” to
demonstrate the defendant directed his activity toward the forum state);
13 Schwarzenegger v. Fred Martin Motor Company, 374 F.3d 797 (9th Cir.2004).
14 2006 WL 538819 at *6. Here there is nothing more. Thus, by failing to meet the standards of Calder,
15 Plaintiff has failed to show purposeful direction. This, added to the failure to show purposeful
16
availment, results in a fatal inability to meet the first prong of the three-part specific jurisdiction test
17
as set forth in Schwarzenegger, 374 F.3d at 802.
18
In Schwarzenegger, because that Plaintiff could not get past the first prong, being unable to
19
show purposeful availment or purposeful direction, no further analysis was required, and the case
20
21 was dismissed for lack of jurisdiction. Id. at 807.
22 The situation is similar here. Nor does Plaintiff fare any better concerning the second prong
23 of the Schwarzenegger test. Righthaven’s claim does not arise from any forum related activities
24 by Defendant. All of Defendants’ alleged activities occurred outside of Nevada. There was no
25
interaction with anyone in Nevada, nor, as noted before, was the Website either aimed at Nevada
26
residents nor generally frequented by them. Nor does Plaintiff fare any better concerning the second
27
prong of the Schwarzenegger test.
28
13
1 c. Nevada jurisdiction is not reasonable.

2 The third prong of the Schwarzenegger test involves reasonableness , substantial justice and
3
fair play. 374 F.3d at 802. As the Burger King Court noted, “jurisdictional rules may not be
4
employed in such a way as to make litigation ‘so gravely difficult and inconvenient’ that a party
5
unfairly is at a ‘severe disadvantage’ in comparison to his opponent.” 471 U.S. at 478, citing The
6
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18 (1972). On page 19-21 of the Memorandum in
7
8 Support of their Motion to Dismiss, Defendants cite the seven factor test set forth in Core-Vent
9 Corp. v. NobelIndus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993) to determine the question of
10 reasonableness: (1) the extent of a defendant's purposeful interjection; (2) the burden on the
11 defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's
12
state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial
13
resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient
14
and effective relief; and (7) the existence of an alternative forum.
15
Defendants set forth the basis for why these factors weigh heavily against jurisdiction, in the
16
17 Memorandum in Support of its Motion to Dismiss, and therefore need not repeat them. Plaintiff’s
18 response is to declare them “not compelling.” Ultimately, however, the reasonableness factor boils
19 down to the question raised in Burger King, 471 U.S. at 478, as to whether there is an attempt to use
20 jurisdictional rules in such a way as to make litigation so gravely difficult and inconvenient that
21
Defendants are unfairly at a severe disadvantage in comparison to his to Plaintiff.
22
As noted in the Declarations of Lisa Linowes, the Website is a non-commercial mom and pop
23
operation, run from their house in rural New Hampshire. It conducts no business or other commercial
24
activity. It’s sole purpose is to collect information from around the United States and the rest of the
25
26 world, concerning industrial wind power, and to act as a free Internet clearinghouse for people
27 interested in information on that topic of public interest. (Par. 5)
28
14
1 Plaintiff, on the other hand, is a commercial legal team, “grubstaked” by a large media
2 corporation, whose sole purpose is to bring lawsuits such as the instant one. While the relative
3
situations of the parties is pertinent, however, it is not dispositive. All of the alleged activity, and all
4
of the witnesses are in New Hampshire. While the original article was from the Ely Times, nothing
5
concerning this case took place in Nevada. The only reason for this case to be in a Nevada court is
6
that it is more convenient and less costly for the Plaintiff, while placing a considerable burden on
7
8 Defendants and witnesses.
9 Because Plaintiff failed to meet the first two prongs of the Schwarzenegger test, 374 F.3d at
10 802, the Court need not evaluate the third prong, reasonableness, in order to grant Defendants’
11 Motion. Nonetheless, that prong too indicates a lack of personal jurisdiction.
12
III Conclusion
13
Defendants filed a Motion to Dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1), lack of subject
14
matter jurisdiction; Fed.R.Civ.Proc.12(b)(2), lack of personal jurisdiction; and Fed.R.Civ.Proc.
15
12(b)(6), failure to state a cause of action. The Motion concerning Fed.R.Civ.Proc. 12(b)(1) and
16
17 12(b)(6) were based upon a deficiency in the Complaint in that it failed to allege that Plaintiff had
18 any cognizable claim concerning the alleged infringement. A mere statement that Righthaven is now
19 the copyright holder by assignment says nothing concerning any right in an accrued cause of action.
20 However, as the missing statement has now been supplied in Plaintiff’s Opposition brief, Defendants
21
will no longer pursue these claims and suggest that the Complaint be amended.
22
Concerning the Motion pursuant to Fed.R.Civ.Proc.12(b)(2), Plaintiff has failed to meet the
23
standard for showing jurisdiction under any theory, general or specific. There is no basis in either
24
evidence or logic for any conclusion that Defendants targeted, purposely availed themselves, or
25
26 purposely directed their activities toward Nevada, nor did they have the requisite minimal contacts.
27 Therefore, Defendants ask this Honorable Court to grant Defendants’ Motion to Dismiss, pursuant
28 to Fed.R.Civ.Proc.12(b)(2).
15
1 Dated this 12th day of July 2010

2 Respectfully submitted by:
3
/s/ Allen Lichtenstein
4 Allen Lichtenstein
Nevada Bar No. 3992
Las Vegas, NV 89120
6 (702) 433-2666 – phone
(702) 433-9591 – fax
7 allaw@lvcoxmail.com
8 Attorneys for Defendants
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1 CERTIFICATE OF SERVICE
2 On July 12, 2010, a copy of the foregoing Motion to Dismiss was served, via CM/ECF on
3 the following:
4 John Charles Coons, Esq.

Speven A. Bishop, Esq.
5 Righthaven, LLC
9960 West Cheyanne Ave.
6 Las Vegas, NV 89129
/s/ Allen Lichtenstein
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Defendant Industrial Wind Action's Reply To Plaintiff's Response To Defendant Industrial Wind Action Corp's Motion To Dismiss (Filed July 12, 2010)

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Defendant Industrial Wind Action's Reply To Plaintiff's Response To Defendant Industrial Wind Action Corp's Motion To Dismiss (Filed July 12, 2010)

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Case 2:10-cv-00601-RLH-PAL Document 14 Filed 07/12/10 Page 1 of 23

1 /s/ Allen Lichtenstein

22 Hanson v. Denckla, 357 U.S. 235 (1958) 11

27 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 4

4 Panavision International, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998) 13

23 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) 11,12

4 Fed.R.Civ.P. 12(b)(2) 1,2,6,

1 MEMORANDUM OF POINTS AND AUTHORITIES

5 Purposeful availment involves conducting activities within a state so as to take advantage of

1 c. Nevada jurisdiction is not reasonable.

1 Dated this 12th day of July 2010

4 John Charles Coons, Esq.

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