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Limit on Assigning Right to Pursue Online Copyright Infringement
Can a business model be sustained for procuring the right from copyright owners to pursue alleged copyright infringements in the online world? Content companies may seek the services of such a company. But the U.S. Court of Appeals for the Ninth Circuit decided in 2005 that a party who obtained the right to sue over infringement of a copyright ' but didn't also obtain legal or beneficial ownership in the work ' couldn't file an infringement action. See, Silvers v. Sony Pictures Entertainment Inc., 402 F.3d 881 (9th Cir. 2005). And though the Fifth Circuit has a more liberal view of who can file infringement claims (see, Prather v. Neva Paperbacks Inc., 410 F.2d 698 (5th Cir. 1969)), the Second Circuit follows a more restrictive rule: Only owners of exclusive rights in copyrights may pursue infringement claims. See, Eden Toys Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982).
In recent months, there has been a flurry of infringement litigation involving copyright troller Righthaven, which procured the right from publishers such as The Denver Post and Las Vegas Review-Journal to file infringement suits over unauthorized online reproductions of the publishers' content. In several cases, the U.S. District Court for the District of Nevada, which is within the Ninth Circuit, has cited the Silvers decision to block Righthaven's claims. Now the U.S. District Court for the District of Colorado, which is within the Tenth Circuit, has raised a Silvers-type bar against Righthaven. Righthaven LLC v. Wolf, 1:11-cv-00830.
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