Big, Big Loss For Righthaven: Reposting Full Article Found To Be Fair Use

from the vegas-smackdown dept

Mon, Mar 21st 2011 7:34am — Mike Masnick

While Righthaven had previously lost one lawsuit on a fair use claim, that one involved only a partial reposting of an article. Righthaven is still appealing that ruling, but it might have a bigger problem on its hands. On Friday, a judge ruled that even reposting an entire article can be fair use, and that he planned to dismiss a case on those grounds. That spells trouble for Righthaven, which would lose the entire basis for its legal campaign and business model for the vast majority of its cases. In this case, the judge clearly understood what's going on. Last year, we had noted that the judge had raised the fair use issue first, even though the defendant, the non-profit Center for Intercultural Organizing (CIO), hadn't raised it.

Apparently, the judge was not satisfied with Righthaven's attempts to explain why this wasn't fair use. The judge, James Mahan, said both that he found the use to be fair, but also that there was simply no harm in having CIO repost the article, claiming that the market is not the same one. On top of that, the judge also pointed out that Righthaven is in an even weaker position on such cases, because it's not actually using the copyrighted content itself. In other words, if the Las Vegas Review-Journal had sued, it might have a stronger argument. In fact, the judge pointed out that Righthaven seems to be trying to abuse copyright law to stifle free speech:

"Righthaven is not using the copyright the same way the R-J used it. Righthaven is using it to support a lawsuit," Mahan said.

This type of copyright use has a chilling effect on free speech and doesn't advance a purpose of the federal Copyright Act, which is to encourage and protect creativity, Mahan said.

Can't wait to see how some of the Righthaven defenders in our comments -- the same people who have been insisting that there simply is no First Amendment issue in enforcing copyright law -- will respond to that.

Of course, the judge wasn't done there either. He also noted that Righthaven's position was made even weaker by its own failure to mitigate the problem by issuing any sort of takedown, but instead going straight to court.

Basically, this is a near complete smackdown of Righthaven on a variety of points raised by others. It's not binding on other judges, but hopefully they will pay attention. Not surprisingly, Righthaven indicated that it plans to appeal this ruling. If it does so, this one should be interesting to watch. A ruling that supports the district court here could be precedent setting, and could be a very important fair use/copyright ruling that protects some basic free speech rights. Definitely one to watch.

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Filed Under: copyright, fair use, full articles
Companies: center for intercultural organizing, las vegas review journal, righthaven, stephens media

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Paul (profile), 21 Mar 2011 @ 7:44am

It seems to me that the courts have bent over backwards to avoid addressing the fact that the Constitution requires copyright and patent law to promote the progress of science and the useful arts.

Maybe the fact that James Mahan out right calls out this requirement may force the courts to either rule that the law must abide by this constitutional requirement, or rule that the constitution doesn't know what it is talking about....

I still can't get my head around the idea that authors are spurred to write knowing that some corporation is going to make money off their works for 100 years after their death. In my own case, this would be a reason NOT to produce any commercial content...
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Pixelation, 21 Mar 2011 @ 7:47am

Now to have a ruling like this with a for profit business.

Let's hope this one costs them a chunk of change too.
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Anonymous Coward, 21 Mar 2011 @ 7:57am

This is the sort of ruling that gets tossed out pretty quickly, it is clearly a huge reach past what "fair use" has been considered in the past, and well beyond the scope of the court. Effectively, it is legislating from the bench, by ignoring much of the law and focusing on a narrow view.

I don't think of it as a smackdown on Righthaven, rather it is proof that judicial activism is alive and well, which is not a good thing for either party in the case.
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Anonymous Coward, 21 Mar 2011 @ 8:02am

I have not read the court's opinion, but as reported in the issue above undue emphasis is placed on fair use since it is an affimative defense, and the burden of proof (preponderance of the evidence) resides with the party asserting the defense. Thus, this basis is relatively weak, and perhaps even wrong, if the burden was placed on the plaintiff.

A stronger argument, or so it seems to me, it that the "pseudo-assignments" are highly questionable as a matter of law, bordering on champerty. For all practical intents and purposes, these assignments are little more than an attempt by a group to secure "just enough" rights to be able to say with a straight face that they are a rights holder and have standing to assert such rights in federal court on its own behalf.

As you correctly note, the cases may be another matter altogether if the newspaper was the plaintiff, which is not the case here.

FWIT, I suspect that the vast majority of attorneys who regularly practice (and fully understand) copyright law would view these cases with a jaundiced eye.
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Killer_Tofu (profile), 21 Mar 2011 @ 8:05am

Re:
"legislating from the bench" is short form for 'the judge made a decision that I do not agree with'.

Once upon a time it actually meant that they were very far reaching but the term has been over used a lot these days by the Republicans and Democrats when the only reason they had to use it is that they simply do not like the outcome.
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Anonymous Coward, 21 Mar 2011 @ 8:15am

Re: Re:
"legislating from the bench" is short form for 'the judge made a decision that I do not agree with'.

No, legislating from the bench is when a judge essentially attempts to re-write a law by misinterpretation, either overy broad or narrowly, or ignoring or excluding clauses in a law in order to reach a judgement. In this case, this version of "fair use" is so far off the map from other cases, it can only be arrived at by a near intentional misreading of the law, or by ignoring the balance created by previous rulings.

Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair. It would require the showing that the use specifically hurt creativity. That is not what the copyright laws require at all, and is an incredible (and seemingly intentional) attempt to scrap the vast majority of the copyright law in a single swipe.

It isn't the sort of judgement that stands very long, as it is clearly way out of bounds.
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Jay (profile), 21 Mar 2011 @ 8:20am

Re: Re: Re:
Really, aj? Come on, it's too early in the morning to say the sky is falling because a judge used common sense.
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Paul (profile), 21 Mar 2011 @ 8:20am

It seems to me that the courts have bent over backwards to avoid addressing the fact that the Constitution requires copyright and patent law to promote the progress of science and the useful arts.

Maybe the fact that James Mahan out right calls out this requirement may force the courts to either rule that the law must abide by this constitutional requirement, or rule that the constitution doesn't know what it is talking about....

I still can't get my head around the idea that authors are spurred to write knowing that some corporation is going to make money off their works for 100 years after their death. In my own case, this would be a reason NOT to produce any commercial content...
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blaktron (profile), 21 Mar 2011 @ 8:22am

First Amendment
You can call it legislating from the bench, but in the states doesnt the constitution override all, so as long as you call it into effect in your ruling you can be incorrect, but cant you not be overreaching? Isnt that why judges dont reference it unless they feel its necessary?
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coldbrew, 21 Mar 2011 @ 8:25am

Nothing stops these megalomaniacs. If a judge rules in a way they favor, it's "the law." However, if the ruing is not what they like, it's "legislating from the bench." Noting that these laws were put in place to "promote the progress" doesn't figure into any of their logic.

They are so obsessed with having a monopoly from which to extract revenue, they will dismantle the whole foundation of the country for their own financial needs.

I kind of wish these idiots would stop commenting, and/or that TD regulars would stop responding. They will NEVER concede. Ever. They already came to their conclusion, and nothing will ever convince them to view these ideas in an open-minded way.
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Transbot9, 21 Mar 2011 @ 8:25am

Re:
Some may see it as a way to secure the future for not only their children, but their grandchildren as well (see: Tolkien Estate). Granted, the likelyhood that their books will become classics and turn into multi-million dollar franchises is slim, but one can dream.

Not that I agree with such thinking, but it is a valid point of view.
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Anonymous Coward, 21 Mar 2011 @ 8:25am

Can't wait to see how some of the Righthaven defenders in our comments -- the same people who have been insisting that there simply is no First Amendment issue in enforcing copyright law -- will respond to that.

Not sure what you're expecting. Copyright has its own built-in First Amendment safety valves. The judge is using one of those safety valves, fair use, to find for the defendant, albeit, erroneously.

A ruling that supports the district court here could be precedent setting, and could be a very important fair use/copyright ruling that protects some basic free speech rights. Definitely one to watch.

The Ninth Circuit will overturn this if given the chance since it just doesn't jive with how fair use really works. Righthaven would be crazy not to appeal this. You'll get precedent alright, but you won't like it. And despite what you think, a reversal would protect basic free speech rights more than an affirmance would. You don't understand what free speech is, apparently. It isn't the right to make other people's speech.
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Anonymous Coward, 21 Mar 2011 @ 8:26am

Re: Re: Re:
"Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair."

Isn't it how it's supposed to work? At least, from a layman's perspective (mine), it seems reasonable. Fair use should be assumed, until proven otherwise (you know, innocent until proven guilty).
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Anonymous Coward, 21 Mar 2011 @ 8:27am

Re: Re: Re: Re:
You're not talking to AJ. You guys should stop trying to guess which AC is AJ and just focus on the merits of the post.
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coldbrew, 21 Mar 2011 @ 8:28am

Re: Re: Re: Re:
I believe AJ's response is the one below this comment. This is that authoritarian fucktard that is owed 10% of the US GDP for life.
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Anonymous Coward, 21 Mar 2011 @ 8:28am

Re: Re: Re: Re:
It isn't common sense to turn fair use from an affirmative defense into a major hurdle for rights holders to overcome before moving forward with a case. What the judge has suggested is that the standard for even being able to claim copyright infringement is to prove that the act of copying and republishing the work furthers the very narrow definition of encouraging creativity. That is 180 degrees out of sync with the actual copyright law.

It's not common sense. It's an uncommon judicial error.
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Karl (profile), 21 Mar 2011 @ 8:30am

Righthaven is safe
Not to worry. Even if every single lawsuit gets tossed out on its ass, they'll still have a profitable strategy.

Instead of suing, they'll just claim "criminal infringement," and ICE will seize their websites ex parte.

Righthaven successfully intimidates the other defendants into paying their extortion money, all without spending a dime in court. It's a win-win!

...Well, except for the public good, due process, and the First Amendment. But who cares about all that? We've got "criminals" to catch!
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Gwiz (profile), 21 Mar 2011 @ 8:30am

Re: Re: Re:
It would make fair use the default, and require the plaintiff to show that the use isn't fair.

Is that really a bad thing? Shifting the burden to prove something is not fair use on those bringing the lawsuits doesn't sound all that bad to me.
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coldbrew, 21 Mar 2011 @ 8:32am

Re: Re: Re: Re:
When you are a power-hungry copyright lawyer, everyone is guilty until proven innocent. Otherwise, you are legislating from the bench. It's quite simple.

We know power corrupts absolutely, and this fucktard wasn't able to resist the temptation.
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fogbugzd (profile), 21 Mar 2011 @ 8:32am

One giant step (backwards) for newspapers
This lawsuit has resulted in a ruling that gives newspapers and possibly all IP rights holders weaker rights than they had before. I think the most important aspect of the ruling is that the judge actually looked at the reasons given in the U.S. Constitution for having copyright and patent protection. Existing IP law seems like it has gone far beyond the stated constitutional purposes, and if judges start interpreting IP laws in terms of the Constitution it would be a watershed event. Even if the lawsuit itself is overturned, the opinion may represent a new way of looking at IP law.

Lots of people in the newspaper industry have been cheering on Righthaven, and other IP minimalists have been celebrating the mass lawsuit tactics of the Hurt Locker variety. It is pretty clear that judges are getting annoyed by the mass lawsuit tactics and abuses inherent in the system, and it seems like their annoyance is causing them to seek out new reasons to smack them down.

In general, I think that judges with burrs under their saddles making new case law is a bad thing. However, it does happen. And apparently it is happening. I wonder if the the IP minimalists are going to be cheering as the judges stir up other reasons for striking down these lawsuits.
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Thomas (profile), 21 Mar 2011 @ 8:36am

Re: Re: Re:
"...Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair. It would require the showing that the use specifically hurt creativity. That is not what the copyright laws require at all ..."
Wrong and Wronger.
That is exactly what copyright law was originally intended to do. Fair use IS the default. Copyright is a restriction of free speech for the purpose of granting a commercial monopoly. You absolutely, positively SHOULD have to prove some harm and damage before you are able to inhibit free speech. "Innocent until proven guilty" is still a core concept in the rule of law, regardless of what copyright maximalists would like.
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Anonymous Coward, 21 Mar 2011 @ 8:37am

Re: Righthaven is safe
"Due process" and "First Amendment." Those are some of the "magic words": http://www.copyhype.com/2011/03/ice-seizures-criticism-magic-words/

The always excellent Terry Hart shoots down more of the rhetoric. Enjoy.
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coldbrew, 21 Mar 2011 @ 8:37am

Re:
Maybe you are correct. If you are incorrect, what are you willing to do? If the 9th affirms (if it gets that far), will you stop writing comments forever here? Will you meet me in a cage match? Grow a pair.
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coldbrew, 21 Mar 2011 @ 8:38am

Re: Re: Righthaven is safe
Terry hart is not even a real person, He didn't even register that domain. Get his dick out of your mouth.
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Jay (profile), 21 Mar 2011 @ 8:40am

constitutionality
My mistake, but the law isn't always right. Saying that a judge is overreaching when they ask a tough question to a corporation is pretty difficult to comprehend. It reeks of enforcing Righthaven's bullying tactics to the detriment of the other party's rights in a civil case.
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Anonymous Coward, 21 Mar 2011 @ 8:43am

Re: Re:
Let me clarify that I think this gets overturned on procedural issues. The Ninth Circuit will reverse and remand because fair use is not an issue that can be decided on a motion to dismiss. That won't stand up. On remand the judge will just find fair use again. Then it'll be appealed again, and the Ninth Circuit will address the merits. Will the Ninth Circuit agree that it's fair use? I doubt it. These are my thoughts.
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The Devil's Coachman (profile), 21 Mar 2011 @ 8:46am

and you got your law degree where?
Yeah, didn't think so.
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MrWilson, 21 Mar 2011 @ 8:48am

Re:
You don't understand what free speech is, apparently. It isn't the right to make other people's speech.

Says the person who is quoting someone else's speech.
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Anonymous Coward, 21 Mar 2011 @ 8:52am

Re: Re: Re: Righthaven is safe
Got any substantive to add, or are you just trolling?
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The Devil's Coachman (profile), 21 Mar 2011 @ 8:54am

Re: One giant step (backwards) for newspapers
Like anyone cares what happens to newspapers. Or the RIAA, MPAA, or the legion of other litigious asshats suing everyone who ever downloaded anything in the last ten years. Screw them all, and if they went away tomorrow, they would be neither noticed not missed. Righthaven, like the rest of their bunghole contemporaries, is a bunch of blood sucking leeches looking to monetize fraudulent infringement claims. May they and all their apologists die in agony, preferably from a molten gold enema.
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Anonymous Coward, 21 Mar 2011 @ 8:57am

Re: Re:
There is an implied license and it's most certainly fair use. Nice try though, although it borders on trolling.

You do realize that you're taking the side of the issue that would destroy free speech on the internet, right? Is that the side you really wanna be on?
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Anonymous Coward, 21 Mar 2011 @ 9:01am

Re: Re:
Some may see it as a way to secure the future for not only their children, but their grandchildren as well (see: Tolkien Estate). Granted, the likelyhood that their books will become classics and turn into multi-million dollar franchises is slim, but one can dream.

Not that I agree with such thinking, but it is a valid point of view.

How exactly is that valid again?

Why is it that the public should be forced to pay for the wellbeing of authors' children, but not for those of plumbers, or architects, or ditch-diggers, or every other vocation in the world?

Why the hell can't an author's heirs go make their own living? Why does the public have to support them?
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coldbrew, 21 Mar 2011 @ 9:05am

Re: Re: Re: Re: Righthaven is safe
Yes. My point was the person that registered that domain does not even have the backbone to connect it to his real-life self (much like those mooo.com users you think deserve no 1st amend protection). He can't stand behind any argument he makes. Typical lawyer that has huge conflict of interest and is not interested in the kind of transparency that Masnick exemplifies daily.
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Anonymous Coward, 21 Mar 2011 @ 9:07am

Re: Re: Re:
Allowing people to repost articles would "destroy free speech"?

Really? That is some hardcore trollin'.
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coldbrew, 21 Mar 2011 @ 9:07am

Re: Re: One giant step (backwards) for newspapers
You are sooooooooooo sued!
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Richard (profile), 21 Mar 2011 @ 9:08am

Re: Re: Re: Re: Re:
It isn't common sense to turn fair use from an affirmative defense into a major hurdle for rights holders to overcome before moving forward with a case.

It is to me - and I suspect to anyone outside the "rightsholder bubble" that you seem to inhabit.

Is it really that unreasonable to make the plaintiffs prove their case.

It isn't 180 degrees out of sync with actual copyright law - it's merely 180 degrees out of sync with what you would like copyright law to be (and seem to have convinced yourself that it is.)
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Marcel de Jong (profile), 21 Mar 2011 @ 9:08am

Re: Re:
I don't think that JRR Tolkien wrote his books to support his grandchildren.
But it is his estate that tries to manufacture that reality, and they seem like the real leeches, trying to scrounge off of their grandfather's works, that should've entered Public Domain many years ago.
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Sarah, 21 Mar 2011 @ 9:09am

Apparently I read it differently
For me, the message from the judge is less about whether the re-posting was fair use, and more about whether it's any of Righthaven's business, and if so, whether Righthaven handled the issue reasonably.

I feel like if the Review-Journal says to CIO "hey, you're using our stuff! Take it down and/or pay us!" then you can fight over fair use. Here, Rightshaven says to CIO "hey, you're using someone else's stuff! Therefore you should give us money!" and to me the central issue becomes one company's obnoxious business practices rather than fair use at all.
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Richard (profile), 21 Mar 2011 @ 9:12am

Re: Re: Re:
There is an implied license and it's most certainly fair use.

But according to you it isn't fair use until you have proved it by defending yourself in court.

Hoist by own petard I'd say.
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Anonymous Coward, 21 Mar 2011 @ 9:13am

Re: Re: Re:
[...]as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair. It would require the showing that the use specifically hurt creativity.[...]

what you posted sounds like a definition of innocent until proven guilty, so IMHO the judge nailed it.
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cc (profile), 21 Mar 2011 @ 9:13am

Re: Re: Re: Re: Righthaven is safe
A link to a professional shilling outfit, that downplays the value of due process and the First Amendment to hype copyright, is to be considered substantive, but anyone calling you out on that extreme and somewhat disturbing bias is trolling. Got it.
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Anonymous Coward, 21 Mar 2011 @ 9:14am

Re: Re: Re:
How exactly is that valid again?

Why is it that the public should be forced to pay for the wellbeing of authors' children, but not for those of plumbers, or architects, or ditch-diggers, or every other vocation in the world?

Why the hell can't an author's heirs go make their own living? Why does the public have to support them?

A plumber might build a plumbing business empire that he hands down to his heirs. An architect may build a building that he leaves to his heirs. An author creates a work, and the ownership of this work can be transferred to his heirs. Cognitively, I don't see the difference between the plumber, the architect, and the author. Each one has built something of value that can be transferred upon their death. The fact that it's an intangible right doesn't change things for me. Ownership of stock is an intangible right. Do you think your stock portfolio should become public property when you die? Of course not. The fact that it's intangible is meaningless in the eyes of the law, as it should be.
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Anonymous Coward, 21 Mar 2011 @ 9:15am

Re: Re: Re: Re:
Do you not understand the difference between being in fact fair use and being adjudicated to be fair use?
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Marcel de Jong (profile), 21 Mar 2011 @ 9:15am

Re: Re: Re:
Are you freaking kidding me? How would this ruling destroy free speech on the Internet? It favours the fair use, thus making it easier to quote from articles and have your say about them. And if someone lifts your article and gives his comments on it, we see more examples of free speech.

Now, with the Righthaven lawsuits, it's still up in the air, and the uncertainty is a very definite chilling effect on free speech. Any ruling in favour of fair use is a win for free speech, not a loss.

Try again, troll.
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Anonymous Coward, 21 Mar 2011 @ 9:17am

Re: Re: Re: Re:
Allowing people to repost articles would "destroy free speech"?

Really? That is some hardcore trollin'.

If you believed that copyright is the "engine of free expression," as the Supreme Court does, that might make more sense to you.
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Anonymous Coward, 21 Mar 2011 @ 9:19am

Re: Re: Re: Re: Re:
I should mention too, that I was addressing his point that by quoting the person I was answering in the comment section I was somehow breaking copyright laws. I was saying that that position would destroy free speech. I wasn't talking about posting newspaper articles as you misread my comment to mean.
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Anonymous Coward, 21 Mar 2011 @ 9:22am

Re: Re: Re: Re:
You don't seem to understand, and I apologize if it was unclear. The person I was answering suggested that I myself was breaking copyright laws by quoting the words of the person I was responding to. I was saying that that position would destroy free speech on the internet, and it surprised me that he was even suggesting it.
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Thwacht (profile), 21 Mar 2011 @ 9:24am

Re: Re: Re:
The public isn't forced to support anything. If individuals in the public decide that they want to purchase new copies of LoTR, they have to pay something to the Tolkien estate.

I'm not necessarily saying this is the way it should work. I'm just saying it doesn't do me any good to look at it as some evil, sweeping repression of the public at large.

If a plumber wants to charge clients some sort of ongoing subscription fee for his work, to support his family after he's dead, he can write up his contracts that way. The only problem is that there are lots of other plumbers out there, and most people will instead choose one who only charges a one-time fee.

There is only one LoTR. You don't have to buy a copy if you don't want to.
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Anonymous Coward, 21 Mar 2011 @ 9:25am

Re: Re: Re: Re: Re: Re:
Not at all. If the law says "copyright is X, and fair use is an affirmative defense only" and a judge now sayins "Copyright is Y, and fair use is a standard to overcome before anything", it is 180 degrees out of sync with the law.

Fair use is an affirmative defense, something used by the defendants as a "yes, I broke the law but" type process. It isn't something the plaintiffs have to overcome at the start.
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coldbrew, 21 Mar 2011 @ 9:25am

Re: Re: Re: Re: Re:
If you believed that copyright is the "engine of free expression," as the Supreme Court does, that might make more sense to you.

If you or anyone truly believes that, we need to give you lobotomies and put you on an island somewhere.

It does help me understand your perspective better, however. Thanks for that, I guess...
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Anonymous Coward, 21 Mar 2011 @ 9:26am

Re: Re: Re: Re: Re: Righthaven is safe
A link to a professional shilling outfit, that downplays the value of due process and the First Amendment to hype copyright, is to be considered substantive, but anyone calling you out on that extreme and somewhat disturbing bias is trolling. Got it.

Wow, you really think that? I'm sorry, cc, but you sound like a conspiracy theory nut by even posting that. Have you looked up his law license with the state bar? Maybe start there before you go spreading FUD. Maybe get some sleep and take the tinfoil hat off. Good grief. You sound like a fucking idiot.
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hrusha, 21 Mar 2011 @ 9:29am

Re: Re: Re:
Wait... I think that this is an attempt at AC humor!

"Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair. It would require the showing that the use specifically hurt creativity."

THAT ladies and gentleman is EXACTLY what the Fair Use clause reads. The fact that it has been subverted into this:

"That is not what the copyright laws require at all, and is an incredible (and seemingly intentional) attempt to scrap the vast majority of the copyright law in a single swipe."

just goes to show how messed up the system really is.

To the AC: either this was a brilliant post on your part and deserves and 'insightful' on pointing out how broken the system is, or you really believe that Fair Use as it stands today is just fine, and going to a saner definition of it would rob you of all your money.
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cc (profile), 21 Mar 2011 @ 9:33am

Re: Re: Re: Re:
A plumber can pass down his physical and scarce property (be that a wrench or a plumbing business) to his children. Stocks and bank accounts are intangible but still scarce property -- their value is reflected by a number, and basically when that number becomes zero their value becomes zero.

Intellectual monopolies, created for the specific purpose of encouraging creation, are not property. Extending them beyond the author's death is stupid and indefensible.
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Anonymous Coward, 21 Mar 2011 @ 9:33am

Re: Re: Re: Re: Re: Righthaven is safe
So you think a person's mettle is determined solely by whose name is listed in the whois of their domain name? Not sure I follow you there. Do you not believe in privacy?
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Anonymous Coward, 21 Mar 2011 @ 9:36am

Re: Re: Re: Re: Re: Re:
Which way a person comes down on that statement pretty much says it all about which camp they're in in the "copyright wars."
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Thwacht (profile), 21 Mar 2011 @ 9:37am

Re: Re: Re:
That's a pretty big assumption, I think, considering the way that most of the grandparents I know feel about their grandkids.

But why does intention have anything to do with it in the first place?

The plumber's intention is to to fix the pipes, but that doesn't mean he shouldn't invest his profits in a business his children will inherit, or use them to buy presents for his grandchildren.
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Gwiz (profile), 21 Mar 2011 @ 9:37am

Re: Re: Re: Re:
A plumber might build a plumbing business empire that he hands down to his heirs.

A bit of a fault with your logic here.

When a plumber hands down his plumbing business to his heir - the heir is expected to work (by pipefitting, being a manager or whatever) to maintain the business and create new income. Anyone who just expects that plumbing business to keep generating income all by itself will go bankrupt.

Not quite the same as inheriting a copyright on something already created.
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Anonymous Coward, 21 Mar 2011 @ 9:40am

Re: Re: Re: Re:
Actually, no. Please understand: Fair use is an affirmative defence, not a reason for summary dismissal of a case. It is something that is only argued after the copyright violation has been proven. Until the copyright violation is proven, there is no possible claim of fair use.

Fair Use isn't a question of "innocent until proven guilty", it is "guilty but...". You cannot claim fair use without first admitting guilt.
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Anonymous Coward, 21 Mar 2011 @ 9:43am

Re: Apparently I read it differently
Sarah,if the judge was doing this, they would find themselves likely kicked off the bench. The judge is to settle the issue in front of them, not to express personal opinion and take action that isn't part of the case.

If the defendants want to claim Righthaven doesn't have rights, that would be something presented during the case, and would be something that would have to be judged on it's merits, aside from the case.

If your logic is what the Judge actually did in this case, then they should consider themselves lucky to keep the job.
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MrWilson, 21 Mar 2011 @ 9:44am

Re: Re: Re: Re: Re:
You should also apologize for misunderstanding and then misstating my position.

I was pointing out the hypocrisy of the claim that free speech doesn't cover "the right to make other people's speech" and quoting someone.

My position is that free speech most definitely covers the right to repeat other people's speech (technically, you can't "make" other people's speech or else it would be your speech).

If you can't repeat others, fair use is out the window, academic citation is out the window, journalistic reporting is out the window.

I was pointing out that such a description of free speech is quite absurd.

Does your spurious delineation of what free speech covers also cover misrepresentation of my speech?
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Anonymous Coward, 21 Mar 2011 @ 9:44am

Re: Apparently I read it differently
I don't see how Righthaven's decision to publish or not the articles they've been assigned is relevant. The fair use analysis I've read in other cases has stated that even if the plaintiff has publicly stated that it won't publish the material, that doesn't matter since they can always change their mind later.
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cc (profile), 21 Mar 2011 @ 9:44am

Re: Re: Re: Re: Re: Re: Righthaven is safe
To someone like you I'm sure I sound like a lot of things.

Similarly, to me you sound like a selfish, belligerent and right-down unethical individual. My opinion of Terry Hart is even lower.
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coldbrew, 21 Mar 2011 @ 9:46am

Re: Re: Re: Re: Re: Re: Righthaven is safe
I didn't realize I was in the midst of a comedy routine. Are you seriously talking to me about privacy?
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Richard (profile), 21 Mar 2011 @ 9:49am

Re: Re: Re: Re:
And Tolkien no doubt built a substantial fortune from his books in his lifetime - and would still have had plenty to leave to his heirs even without post-mortem rights.

Tolkien was a committed Christian and probably would have had some moral doubts about copyright. His friend C S Lewis certainly did - he believed that an author should rejoice in his works for their intrinsic value - rather than from proprietorial pride. He would have seen the venal pursuit of royalties as even less justifiable.
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cc (profile), 21 Mar 2011 @ 9:53am

Re: Re: Re: Re: Re: Re: Re:
Lawyers are in the there-need-to-be-copyright-wars camp, because that's how they make looooots of money.
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PRMan, 21 Mar 2011 @ 9:56am

Re: Re: Re: Re: Re:
Agreed. Lewis would despise Tolkien's heirs.
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Joe (profile), 21 Mar 2011 @ 10:08am

Re: Re: Re: Re: Re:
Put some merits in there and we'd be glad to. ;)
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Thwacht (profile), 21 Mar 2011 @ 10:09am

Re: Re: Re: Re: Re:
So what about branding and name-recognition?

The real value of the business that the plumber hands down to his kids is not in physical assets such as buildings and wrenches, but in the clientele that have grown to trust that particular plumbing business through years of solid work and good service. Being a good plumber is only part of it -- to succeed, you also have to become the guy they call when they need a good plumber.

Isn't that part of the value of LotR too? It's not just that it is an entertaining and well-written story, it's that the story's characters and settings are known and loved by millions and millions of people around the world.
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Anonymous Coward, 21 Mar 2011 @ 10:11am

Re:
Ahh, yes, freedom of speech, just watch what you say, right?

Come on coldbrew. If you cannot stand the heat of debate, get out of the kitchen. Your comments read like someone who knows they are wrong, but no longer wants to play and wants to go home with the ball too.
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Karl (profile), 21 Mar 2011 @ 10:12am

Re: Re: Righthaven is safe
The always excellent Terry Hart shoots down more of the rhetoric.

I've debated Hart on here before. If even I can win an argument against him, I wouldn't exactly call him "excellent."

One simple example from this article. He says:

Factual, objective determinations, however, can be made by law enforcement officials. Thus, these procedural safeguards are not needed when items are seized for violating child pornography laws; law enforcement officials don�t need a judge to determine that something depicts a minor engaged in explicit sexual conduct.

CDT v. Pappert said, explicitly, that he is wrong. An objective determination of child pornography does not allow the removal of non-infringing speech. That would be prior restraint.

It's also odd that people keep bringing this up, since the "factual, objective determination" of the dajaz1 evidence was utterly and completely wrong.

But never mind. My whole point was in the second and third sentences: copyright holders can now take cases that wouldn't succeed in a civil court, claim they're criminal, and fob them off onto the government. All without any accountability, and all without spending a dime (since it's all paid for by taxpayers).

Don't think Righthaven won't do it, either.
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Bruce Ediger (profile), 21 Mar 2011 @ 10:13am

Re: Re: Re: Re: Re:
Actually, no. Please understand: the commentor above *did* comprehend that fair use is an affirmative defense. He/she clearly stated that: "Fair use should be assumed, until proven otherwise (you know, innocent until proven guilty)".

The commentor believe that Fair Use *should be* a question of "innocent until proven guilty". I tend to agree. Making Fair Use into an affirmative defense puts "intellectual property" ahead of freedom of speech. That seems like a losing position to me, except for a very few "rightsholders".
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Anonymous Coward, 21 Mar 2011 @ 10:16am

Re: Re: Re: Re: Re: Re:
Then why not protect that work for the author's great grandchildren, or their great-great grandchildren, or their great-great-great grandchildren?

Why not make copyright last thousands of years? It's for the ancestors! Seems fair.
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Bruce Ediger (profile), 21 Mar 2011 @ 10:18am

Re: Re: Re:
> I think this gets overturned on procedural issues.

Oh, so they're overturn on a technicality. Rightness or wrongness doesn't enter into it. The technicalities are wrong.

Isn't this the kind of thing that drives most Real Americans crazy about the Court system? We want justice, and you and the other Officers of the Court offer us paperwork.
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ATM, 21 Mar 2011 @ 10:18am

Righthaven goes against the spirit of the copyright law. They rely on the people's fear of the 150000$ penalty to coerce people into settling for a few thousand. this is nothing more than a get rich scheme done by some lawyers who have too much time on their hand. If they cared so much about the content not being posted everywhere it would have been easier to just send take down notices. 90% of the time the infringement is removed. I myself have sent a few of these notices and my content was removed with a few days.
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The eejit (profile), 21 Mar 2011 @ 10:19am

Re: Re: Re: Re: Re:
Wait, what?

So you have to admit to a civil offense before using a defense, regardless of whether the accusation's false?

That makes no sense whatsiever.
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Ken, 21 Mar 2011 @ 10:21am

Righthaven's irrisponsibility proves costly
It's good to see that a judge was following the Constitution. Copyright is designed to promote creativity not protect corporations own narrow business interests. Righthaven handicapped their own lawsuit by applying a bazaar business model. They thought not sending take-down notices would not effect their cases but as the judge pointed out not having done so severely effected their case because there was no way to prove willful infringement.

Righthaven said it is too expensive to send take-down notices before filing lawsuits but they are now finding out not doing so is far more expensive.

Let this be a lesson to all copyright holders. Send a take-down notice before proceeding with a lawsuit.

Lawsuits are risky because a negative ruling can create painful precedences. This one not only effecting Righthaven but the entire newspaper industry.
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Anonymous Coward, 21 Mar 2011 @ 10:21am

Re: Re: Re: Righthaven is safe
The problem in Pappert was that there weren't procedural safeguards in place. Nothing in that case stands for the proposition that a determination that something is child porn can not be made ex parte by a judge based on objective criteria. The problem in that case was the lack of such judicial determinations, it wasn't that such determinations could not be made.
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Joe (profile), 21 Mar 2011 @ 10:22am

Re: Re: Apparently I read it differently
Righthaven is not the copyright holder. That is what is relevant.
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The eejit (profile), 21 Mar 2011 @ 10:22am

Re: Re:
Have you ever grated your nads?

That's what talking to the maximalists feels like. Now imagine having to do that all the goddamned time.

Yeah, your tortured logic adds a whole new meaning to the phrase "spit-roast."
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Bruce Ediger (profile), 21 Mar 2011 @ 10:23am

Re: Re: Re: Re: Re:
Hey, you're the one promoting Fair Use as affimative defense, not us.
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Bruce Ediger (profile), 21 Mar 2011 @ 10:23am

Re: Re: Re: Re: Re:
Hey, you're the one promoting Fair Use as affimative defense, not us.
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The eejit (profile), 21 Mar 2011 @ 10:24am

Re: Re: Re: Re: Re: Re: Re: Re:
You mean it's not LOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOTS of t-shirts? I've been doing it wrong!
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Anonymous Coward, 21 Mar 2011 @ 10:24am

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
If you're saying that registering a domain name through a service that offers privacy is somehow wrong, then yeah, I'm talking to you about privacy.
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Joe (profile), 21 Mar 2011 @ 10:25am

Re: Re: Re:
Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair. It would require the showing that the use specifically hurt creativity. That is not what the copyright laws require at all, and is an incredible (and seemingly intentional) attempt to scrap the vast majority of the copyright law in a single swipe.

Yeah, ain't it cool? :D
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Ken, 21 Mar 2011 @ 10:25am

Righthaven Apologists are Anonymous Cowards
Anonymous Coward

You know its funny there is not a single Righthaven apologist in any forum I have ever seen who was willing to identify who they really are. You are all a bunch of anonymous cowards. You also aren't fooling or convincing anyone.
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Richard (profile), 21 Mar 2011 @ 10:26am

Re: Re: Re: Re: Re:
Fair use is an affirmative defence, not a reason for summary dismissal of a case. It is something that is only argued after the copyright violation has been proven. Until the copyright violation is proven, there is no possible claim of fair use.

From the law
"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." (my emphasis).

So how can fair use be raised after infringement has been admitted?

The concept of fair use rights being "only a defence" is not really tenable. Either the use is legal or it is not. If it is legal then there is no infringement and so the court can use fair use to throw out a case just as it can for any other reason if the judge believes that the situation is clear. (The arguments about "innocent until proven guilty" or the reverse don't apply as this is a civil matter.)

Current legal practice of only raising fair use when other issues are exhausted merely reflects the practical fact that fair use is usually more difficult to establish or disprove and does not mean that fair use has a different legal status from other defences. It is up to the court to decide what order to consider the issues on the basis of coming to a conclusion as quickly as possible. The fact that the result of this is usually to consider fair use last doesn't have any legal status.
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Richard (profile), 21 Mar 2011 @ 10:29am

Re: Re: Re: Re: Re:
Do you not understand the difference between being in fact fair use and being adjudicated to be fair use?

Don't you understand that it was your misunderstanding of this point that I was lampooning?

Got down from your petard and then hoisted yourself up again, upside down this time!
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Thwacht (profile), 21 Mar 2011 @ 10:32am

Re: Re: Re: Re: Re:
Many new movies and video games based on LotR have been created since JRRT passed away. In your analogy, wouldn't this count as maintaining the business and generating new income?
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Anonymous Coward, 21 Mar 2011 @ 10:34am

Re: Re: Re: Re: Re: Re:
Welcome to LawyerLand! The important thing to remember is if you don't like any of the rides in LawyerLand then it's up to you to change those rides through an utterly corrupted legislative process that allows innocent human beings, who have not been charged with a crime, to be tortured!

LawyerLand! Once you enter the premises of LawyerLand, you are not free to leave. Please read the fine print and if you're having trouble understanding the legalese then it's not the law's fault you're confused, you're just stupid.

LawyerLand!
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cc (profile), 21 Mar 2011 @ 10:39am

Re: Re: Re: Re: Re: Re:
Even name recognition is scarce, as it is intrinsically tied to the business.

Goodwill goes on the balance sheet, but it's more a characteristic of a business than an asset, and there's no way goodwill can be 'enforced' on the public.
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Anonymous Coward, 21 Mar 2011 @ 10:39am

Re: Re: Re: Re: Re: Re:
So how can fair use be raised after infringement has been admitted?

Fair use is a defense. This is a fact, and there is no debate. You seem really confused, so here's the simplified version: The plaintiff shows that he owns the copyright and that the defendant copied the work. If the defendant can't prove some affirmative defense, like fair use or license, it's infringement. If the defendant can prove a defense, it's not infringement.
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DannyB (profile), 21 Mar 2011 @ 10:41am

If a man will not work, he should not eat.
2 Thessalonians 3:10 (New International Version 1984, �1984)

10 For even when we were with you, we gave you this rule: �If a man will not work, he shall not eat.�

http://www.biblegateway.com/passage/?search=2%20Thessalonians%203:10&version=NIV1984
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Anonymous Coward, 21 Mar 2011 @ 10:42am

Re: Re: Re: Re: Re: Re: Righthaven is safe
Nice try, Terry Hart.
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Ken, 21 Mar 2011 @ 10:42am

Newspapers Should Pull the Plug on Righthaven
One thing that Righthaven apologists are not considering is the impact this ruling will have on Righthaven's business in general. They now have a very bad track record in the courts and have even possibly produced some very damaging precedents for the newspaper industry. Every single lawsuit that Righthaven files is now going to carry with it a tremendous risk that neither Stephens Media or News Media Group can afford to take. I doubt very strongly Righthaven is able to get another copyright of any significance. These newspapers may even pull the plug on Righthaven since this entire experiment has turned out to be a costly mistake.
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ATM, 21 Mar 2011 @ 10:45am

Re: Re: Re: Re: Re: Re:
"any new movies and video games based on LotR have been created since JRRT passed away. In your analogy, wouldn't this count as maintaining the business and generating new income?"

No it doesn't because these new products are not produced by the heirs of Tolstoy but by other businesses. all what Tolstoy's heir had to do was sign on the dotted line and cash the royalty checks.
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Mike Masnick (profile), 21 Mar 2011 @ 10:47am

Re:
it is clearly a huge reach past what "fair use" has been considered in the past, and well beyond the scope of the court.

I don't see that at all. If you look at the four factors, the judge seems to have applied them in a reasonable way. I don't see how it's a reach at all.
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Anonymous Coward, 21 Mar 2011 @ 10:47am

Re: Re: Re: Re: Re: Re:
Did the heirs direct the movie or program the video game?
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Ken, 21 Mar 2011 @ 10:48am

Copyright Time Limits
I am all for companies being able to retain their copyrights and patents as long as they are being actively used but once a copyrighted work is no longer actively being used by the copyright holder it should go into the public domain after a short period of time. This would discourage these copyright and patent trolls from shelving works only to be used as tools for litigation.
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DannyB (profile), 21 Mar 2011 @ 10:50am

Re: Re: Re: Re: Re: Re: Re:

Not at all. If the law says "copyright is X, and fair use is an affirmative defense only" and a judge now sayins "Copyright is Y, and fair use is a standard to overcome before anything", it is 180 degrees out of sync with the law.

Fair use is an affirmative defense, something used by the defendants as a "yes, I broke the law but" type process. It isn't something the plaintiffs have to overcome at the start.

Affirmative defense does mean it is a standard the copyright owner must overcome.

It doesn't mean "yes, I broke the law". It means "I copied, but have an affirmative defense that allows this particular use".

The burden is on the copyright owner to show that it is not fair use. There are very limited uses that are fair use, so this should not be that difficult. Or maybe the copyright owner ought to be looking for actual infringements that are not fair use.
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DannyB (profile), 21 Mar 2011 @ 10:51am

Re: Re: Re: Re: Re:

Fair Use isn't a question of "innocent until proven guilty", it is "guilty but...". You cannot claim fair use without first admitting guilt.

It is not "guilty but...".

It is "I copied this, but my use falls under fair use and is therefore permitted.".
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DannyB (profile), 21 Mar 2011 @ 10:53am

Re: Re: Re:

Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair.

That is how it has always been. So this ruling changes nothing and does not gut copyright.

This ruling affirms how things are and have been and should be.
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Mike Masnick (profile), 21 Mar 2011 @ 10:57am

Re: Re: Re: Re: Re:
What the judge has suggested is that the standard for even being able to claim copyright infringement is to prove that the act of copying and republishing the work furthers the very narrow definition of encouraging creativity.

Darn that Constitution. Why should we pay attention to it?
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Thwacht (profile), 21 Mar 2011 @ 11:03am

Re: Re: Re: Re: Re: Re: Re:
'Hereditary IP rights forever' does seem like an unfortunate solution in many ways, but if you accept the idea of IP rights at all (many here don't, I know), I am not convinced it is unfair.

Disney corp. has invested millions promoting Mickey Mouse for the last 70 years. Walt died in 1966 -- how long should it be till I am allowed to exploit that promotion and start publishing my own Mickey Mouse cartoons?

I agree that forever seems like too long a time, but I think that wherever you draw the line short of forever will arbitrary, and it is difficult to defend anything arbitrary as ideologically "fair."
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Anonymous Coward, 21 Mar 2011 @ 11:04am

Re: Re: Re: Re: Re: Re:
Darn that Constitution. Why should we pay attention to it?

But that's just it. This judge isn't following the rule of law. He's taking the law into his own hands.

If you guys don't like copyright laws, that's fine, but your remedy is with Congress, not the courts.
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Jose_X, 21 Mar 2011 @ 11:09am

Re: Re: Re: Re: Re: Re:
>> The real value of the business that the plumber hands down to his kids is not in physical assets such as buildings and wrenches, but in the clientele

>> Isn't that part of the value of LotR too? It's not just that it is an entertaining and well-written story, it's that the story's characters and settings are known and loved by millions and millions of people around the world.

What do you think of the following analogy?

The inherited plumber clientele only stays because you can continue to offer better service or better products (an ongoing scarce good) than the competition. The competition is allowed to try and reproduce that identical services and products to try and win you over.

How would this carry over to writing?

We would allow competitors to study the story and try to approach, reproduce, or surpass the overall package. Maybe change parts of the story here and there or present the story with great sound, animation, print material, visual appeal, etc.

In each case, we would allow people always to try and recreate the experience as best as they can. We would expect that the one with the high reputation, even if they started slacking, would still work from an advantageous position.

That's the analogy and it assumes copyright doesn't exist. The continued value comes from recreating a quality service or product (think of a quality performance/presentation or book/film).
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hmm (profile), 21 Mar 2011 @ 11:10am

Anyone else?
Does anyone else feel that when they see something posted/owned by righthaven they just think "bah, probably just made up corporate crap" and then change to a different source?

I have exactly THIS MUCH (points at toes) trust in anything any Righthaven company has to say on anything.....
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Gwiz (profile), 21 Mar 2011 @ 11:13am

Re: Re: Re: Re: Re: Re:
Many new movies and video games based on LotR have been created since JRRT passed away. In your analogy, wouldn't this count as maintaining the business and generating new income?

Did JRRT's heirs create the new works themselves? If not, then all the heir's have done is rest on the laurels of JRRT's work.

It would be like the plumber's son who does nothing but the bookkeeping and expects the money to keep flowing in like when his father was working 10 hour days unclogging drains.

In my opinion, artists should be able to monetize thier work, but copyright shouldn't last more than 10 or 15 years. That's plenty of time to make a profit (if you don't, then it's your own damn fault). After that the work should fall into the public domain. That was the original deal when the founding fathers first granted the government imposed monopoly anyways.
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Thwacht (profile), 21 Mar 2011 @ 11:16am

Re: Re: Re: Re: Re: Re: Re:
Don't the inheritors continually reinforce the business' public goodwill by maintaining the same quality of service their ancestor provided?

Isn't that (arguably) the same thing Tolkien's estate corporation tries to do, by approving or denying proposals for new LotR games and movies, according to (interpretations of) their quality?
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Richard (profile), 21 Mar 2011 @ 11:19am

Re: Re: Re: Re: Re: Re: Re:
No, it is you that is confused. As the law says (see above) "fair use...is not an infringement". Why do you insist that two concepts exist when in reality there is only one?

It's a simple concept. An act is either legal or illegal. There is no hierarchy of reasons for being legal/illegal.

You can of course bring fair use in as a defence if accused - but that has no different legal status any other reason why the copying was legal.

Your confusion is addressed by Wikipedia thus
The frequent argument over whether fair use is a "right" or a "defense"[20] is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense."

If you think the Wikipedia article is wrong then you can go and edit it yourself - and see how far you get...
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Anonymous Coward, 21 Mar 2011 @ 11:22am

Re: Re: Re: Re: Re: Re: Re:
I thought our remedy was engaging in massive civil disobedience? How could hundreds of millions of people around the globe be wrong?
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Killer_Tofu (profile), 21 Mar 2011 @ 11:22am

Re: Re: Re:
Fair Use should be the common sense logical thing that they should have to overcome. It is human nature to share and share alike. When you have something that is infinitely available like ideas and digital .. well, anything, then people will share it. The laws are out of touch with reality and this judge seems to perhaps be bringing things back down to earth a little. Also, even from where the laws stand right now I do not see this as really far reaching. Fair Use is already in the law after all.

Also, with the way copyright is abused by the lawyer trolls and evil companies and estates of the world these days, I think them having to take fair use into account is a very solid thing. Otherwise the scenarios just get worse and worse because all they have to do is say that they believe that fair use did not apply. And if that is all they need to do, and not pay the defenders lawyer fees when it is obviously fair use, then we end up with the rich abusing the poor who are only following human nature.

It is also worth noting that there have been a few other cases of judges saying that litigators should take fair use into account before filing.
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Mike Masnick (profile), 21 Mar 2011 @ 11:25am

Re: Re: Righthaven is safe
The always excellent Terry Hart shoots down more of the rhetoric. Enjoy.

Wow. Terry gets worse and worse with each passing week.

He's now picked up on your ridiculous assertion that it's okay to seize the domains, because it doesn't seize the content on the websites themselves. Of course, this is the same ridiculous game that you were playing in claiming that it's okay to seize the domain names BECAUSE of the content on the websites, but not prior restraint because it's NOT the content being seized. That makes no sense. You're trying to have your cake and eat it too.

Furthermore, Terry is simply wrong on a separate, but important point: he claims that obscenity can only be determined by the court, but copyright infringement cannot. That's wrong. Copyright infringement is not as objective as he and you wish it would be. And that's where both of you are wrong.
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Jay (profile), 21 Mar 2011 @ 11:25am

Re: Re: Re: Re: Re: Re: Re:
Amen. Let's not forget that most of them were against a monopoly on ideas which is exactly what copyright seems to do nowadays.
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Anonymous Coward, 21 Mar 2011 @ 11:27am

Re: Re: Re: Re: Re: Re:
Ahh Mike, I always love when you give the old "constitution" answer. It's like you are admitting that the arguments posted make sense, but you can't bring yourself to agree even for a second.

Come on now: Is fair use an affirmative defense or not?
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Mike Masnick (profile), 21 Mar 2011 @ 11:29am

Re: Re: Re: Re: Righthaven is safe
The problem in Pappert was that there weren't procedural safeguards in place.

And what "procedural safeguards" were around for the takedown of 84,000 innocent sites or a blog whose content was provided by the copyright holders themselves?

Right. That thing happening in the back of the brain is "the point," trying to burrow it's way into your consciousness.
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Jay (profile), 21 Mar 2011 @ 11:29am

Re: Re: Re: Re: Re: Re: Re:
You really aren't paying attention to history here, are you?

Please tell me how through Congress, the Senate, and every other roadblock, that a person who looks into issues of takedowns, piracy, economic well being of the US, looking into the reports of massive trade organizations, reviewing and critiquing standard rules of law, and overall the overcriminalization of the US republic can be solved through our 450+ Congressmen and women.

A letter can do a lot, but it sure isn't helping that there's a LOT of interference when a large trade organization can pay money to Senators for time, compromising the Constitution that people are supposed to uphold.
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Anonymous Coward, 21 Mar 2011 @ 11:32am

Re: Re: Re: Re: Re: Re:
Danny, read what you wrote:

It is "I copied this, but my use falls under fair use and is therefore permitted.".

I bolded the important part, the part that explains what an affirmative defense is: "I copied this". It is an admission of copying something you don't have rights to, followed by "but..." and the explanation that details the fair use.

It is exactly "guilty but...", because fair use doesn't exist until something is copied without permission.
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Mike Masnick (profile), 21 Mar 2011 @ 11:34am

Re: Re: Re: Re: Re: Re: Re:
Ahh Mike, I always love when you give the old "constitution" answer. It's like you are admitting that the arguments posted make sense, but you can't bring yourself to agree even for a second.

Wow. When pointing to the plain language of the Constitution is thrown back as avoiding the argument, trust me, I've already won this debate.

Come on now: Is fair use an affirmative defense or not?

It is generally used as an affirmative defense, but it goes beyond that. Lenz vs. Universal says that the suing party must first consider whether the use is fair before going after the copyright holder. The courts recognize that fair use is more than an affirmative defense, and if you wish to be taken seriously, you should recognize that too.
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Anonymous Coward, 21 Mar 2011 @ 11:35am

Re: Re:
It is reach because it is a shifting of the burden. Rather than the burden being on the defendant to "prove that it is fair use", the judge attempts to shift it to the plaintiff to "prove it isn't fair use". That is an incredible 180 degree shift in the law.

More so, it puts all of the burdens on the plaintiff without exception. They must prove the work is copyright, they must prove that it was copied, and now he is suggesting that they have to make the defendant's case as well by proving it isn't fair use?

Would you like the plaintiff to have to bring milk and cookies to court too?
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Jay (profile), 21 Mar 2011 @ 11:38am

Re: Re: Righthaven is safe
I read that...

Terry seems to go more and more into rhetoric, trying to prove to himself exactly that copyright will be the answer to everything. He uses industry numbers, not noticing the conflict of interest inherent within them, and even tries to say that Lofgren (who's also a lawyer) doesn't understand the issues.

No, Terry isn't "excellent". He's supporting a truly faulty position by critiquing the law quite narrowly to prop his own position. I doubt he'll actually read the new economic analysis that came out last week that I linked on his last few posts. I doubt he'll actually see how reasonable other people try to be.

All I can think is that he wants to believe the world is flat, while insulting anyone that says otherwise.
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Anonymous Coward, 21 Mar 2011 @ 11:38am

Re: Re: Re: Re: Re: Righthaven is safe
And what "procedural safeguards" were around for the takedown of 84,000 innocent sites or a blogs or pirate sites or hate mongering sites or child porn sites whose content was provided by the copyright holders themselves?

Fixed that for you Mike.
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Anonymous Coward, 21 Mar 2011 @ 11:39am

Re: Re: Re: Apparently I read it differently
Nope. If that is the case, the judge wouldn't be talking about fair use. He would be tossing it out because Righthaven isn't the rights holder, and we wouldn't be talking about fair use at all.
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Anonymous Coward, 21 Mar 2011 @ 11:39am

Re: Righthaven Apologists are Anonymous Cowards
Right "ken", got ya covered.
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Richard (profile), 21 Mar 2011 @ 11:42am

Re: Re: Re: Re: Re: Re: Righthaven is safe
Descent into self-parody!
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pringerX (profile), 21 Mar 2011 @ 11:43am

Re: Re: Re:
"...as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn't fair."

Wait a second, did I just read that right? Are you suggesting that copyright violators are guilty until proven innocent? Fair use should indeed be the default, because that is what encourages greater creativity- and that is what copyright was intended to support.
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cc (profile), 21 Mar 2011 @ 11:45am

Re: Re: Re: Re: Re: Re: Re: Re:
Tolkien's business was creativity, not signing contracts that either allow or prevent others being creative.

Arguably, the only reason they have to keep up their existing "business" is to make easy money from their father's greatness.
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Jose_X, 21 Mar 2011 @ 11:46am

Re: Re: Re: Re: Re: Re: Re:
Owner v. worker

..in the context of tangibles:

If someone owns a building, that person can opt not to hire any managers or any workers or to hire those whom that person wishes and try to take whatever percentage they can manage. That is generally what we practice in the US when it comes to building ownership. Ownership has lots of leverage because it largely has ultimate control.

..in the context of intangibles:

But is ownership a good idea if we are talking about having a person in full control of all "buildings" potentially created for $0 as a cookie cutter of that building? In other words, is legally enforced ownership of classes of intangibles a good idea?

Yes, the original building owner put together that building that people like (obviously based on influences and teachings from society). You can argue that without that person, that building in that detailed form would not likely exist. But would that person not have created that without building copyright? Isn't the person gaining from being known as the creator of that great building expression? Didn't that person gain from ideas and many details and influences received from society for free? Why wouldn't they create?

When looking at the overall effect of copyright law, we have to ask if the law is promoting progress or not. If what is being gained from copyright greater than what would exist without copyright. With the Internet, it's looking like copyright (the totality that is the law today) is sure getting in the way of likely progress. A weaker copyright might be ideal. In any case, let's not forget http://www.spiderrobinson.com/melancholyelephants.html
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Anonymous Coward, 21 Mar 2011 @ 11:47am

Re: Re: Re: Re: Re: Re: Re:
Any business left to inheritors can be maintained, sold, or driven into the ground by those inheritors. It can go bankrupt, into receivership, take or inflict damage. It can become a burden to inheritors who were unaware of problems going on prior to the owner's death - they might inherit ongoing lawsuits or imminent demise through unpaid debt, an exodus of employees, outstanding violations of state or federal law, a failing or soon to be obsolete business model, a rapidly vanishing market, etc.

Certainly not all but many times I see this rather idealized vision of leaving a 'legacy for our children' regarding inheritance of assets or business or copyrights or what have you. And I'm not saying that this is not a noble goal or that copyrights should go into the public domain upon the death of the author (though that would not prevent survivors from using the material for gain in any way). There are consequences that many not have been realistically considered, is what I'm saying.

One might feel contented that their survivors will be taken care of via copyrights, and that's all well and good. But inheritors may dump those rights into the laps of any corp. that offers a one time sum, a corp. that will profit from your work far more and for far longer than you had hoped your survivors would. Or they could hang onto them and become the sue-monsters that prey on people who would honor your work with recognition long after you're gone...

I guess it doesn't matter if you're dead and beyond caring, but if you care when you're alive, it could bear more thinking, perhaps.

This 'legacy' issue brings up stuff for me, recently lost my dad, who thought he had squared up all his affairs so things wouldn't be difficult for us when he passed.

He was mistaken. He would've been horrified to know the extent of the travails we've gone through to settle his very small, property-less estate. It would've broken his heart.

Do your survivors and yourself a huge favor and take the fantasy out of legacy-leaving.
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Thwacht (profile), 21 Mar 2011 @ 11:50am

Re: Re: Re: Re: Re: Re: Re:
What if your favorite brand-name plumber company is so successful that it has to sub-contract with other plumbers, whom you have trained to provide the brand-name style of service that your customers expect?

If one of those contractors provides the quality of service you expected when you called, how does it make any difference whether the actual inheritor of the brand name is back at the office working on the financial books? You still got exactly what you wanted when you decided to call your favorite brand name plumber. You'll probably call them next time your pipes are clogged, too.

I think the kid should still be allowed to inherit the family plumbing business, even if he decides to become an accountant instead of a plumber like his dad.
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Richard (profile), 21 Mar 2011 @ 11:51am

Re: Re: Re: Re: Re: Re: Re:
air use is an affirmative defense, something used by the defendants as a "yes, I broke the law but" type process. It isn't something the plaintiffs have to overcome at the start.

False - try reading the actual statute - (I have posted the relevant excerpt elsewhere on this thread.)

Copying is either legal or illegal. The concept of "yes I broke the law but" would belong in the area of mitigating circumstances. Copying which is fair use is legal and that is all there is to it. As such it can be established at any stage in the progress of a case - just like anything else.
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Jose_X, 21 Mar 2011 @ 11:51am

Re: Re: Re: Re: Re: Re: Re:
That would be largely an argument against giving the original author control over "derivative works" that have significant new content.
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Anonymous Coward, 21 Mar 2011 @ 11:53am

Re: Re: Re: Re:
The public isn't forced to support anything.

Of course they are - they are forced to support Tolkein's heirs by the law keeping the works from the public domain. Do you not understand copyright at all?

If individuals in the public decide that they want to purchase new copies of LoTR, they have to pay something to the Tolkien estate.

And if they want to print their own copies, or adapt the works, then what? Oh yeah, they're not allowed.

If a plumber wants to charge clients some sort of ongoing subscription fee for his work, to support his family after he's dead, he can write up his contracts that way.

You haven't made an argument here - you've just restated my assertion.

Why does it have to be a choice? Why is there no law forcing this arrangement on the public? Your entire response seems to be "authors heirs get a free ride because the law says they do."

What I asked was *why* do authors heirs get a free ride, when other vocations don't?
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Jose_X, 21 Mar 2011 @ 11:55am

Re: Re: Re: Re: Re: Re: Re: Re:
But (a) they still have to work the business and (b) competitors are essentially allowed to try and copy the service or product, especially to improve it in evolutionary ways.
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Jose_X, 21 Mar 2011 @ 11:59am

Re: Re: Re: Re: Re: Re: Re:
>> It would be like the plumber's son who does nothing but the bookkeeping

And it's not just doing only the book-keeping but monopoly book-keeping: not allowing others to provide a similar product or service.
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Ron Rezendes (profile), 21 Mar 2011 @ 11:59am

Re: Re: Re: Re: Re:
"Fair Use isn't a question of "innocent until proven guilty", it is "guilty but...". You cannot claim fair use without first admitting guilt."

So Copyright laws are exactly the opposite of all the other laws in the US? You have to be guilty before you can be innocent.

Soak that up for a minute and understand why so many people are opposed to the current state of copyright laws and you may reach an epiphany of such outstanding proportions that your head just might explode.
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Jose_X, 21 Mar 2011 @ 12:03pm

Re: Re: Re: Re: Re:
Even if we wanted to place a premium on works having large quantities of creativity, a monopoly (especially one that is not short and comes with criminal penalties and high fines) comes with a cost to society.
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Thwacht (profile), 21 Mar 2011 @ 12:07pm

Re: Re: Re: Re: Re: Re: Re:
If the value is in the brand, the work is in maintaining the brand. As long as he keeps sending acceptable employees out to fix your pipes, I don't see why you would care that the son works as the company accountant instead of out in the field like his dad.
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BBT, 21 Mar 2011 @ 12:12pm

Re: Re: Re: Re: Re: Re: Re:
It is "You are accusing me of copying something that I was not authorized to copy. I was authorized to copy it, so I am not guilty of what you are accusing me."
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Gwiz (profile), 21 Mar 2011 @ 12:20pm

Re: Re: Re: Re: Re: Re: Re: Re:
As long as he keeps sending acceptable employees out to fix your pipes,...

That's exactly where the analogy between the plumber's son and the author's son fails.

Someone from the plumber's shop is out there either providing new services to customer's or creating new products to sell.

They don't just sit there and collect from the work that Daddy plumber did while he was alive. See how it's different?
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Mike C. (profile), 21 Mar 2011 @ 12:22pm

Re: Re: Re: Re: Re: Re:
You have it all wrong.

The plumbers "creative work" is the creation repair of pipes and plumbing systems. Each job he completes is a "work" much the same that each novel from JRRT was a "work". When the plumber hands the "business down to an heir, the heir MUST continue to create NEW "works" or else the business will fail.

The LotR rights handed down to the heirs are still the original creative "works". The business built around the work is irrelevant (albeit profitable). In the end, JRRT and heirs still only have 4 "works" (Hobbit + 3 LotR books) that they're working with.

To compare back to the plumber, it would be as if the plumber had done all the plumbing work in Empire State Building during construction and for the rest of his life, he was paid a monthly salary. Additionally, for 70 years after his death, that monthly salary passed to his heirs. On top of all that, if anyone wanted to make changes to the plumbing in the building, they would have to license rights to do so from the plumber or his heirs. Still sound fair?
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Jay (profile), 21 Mar 2011 @ 12:23pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
...

That doesn't even deserve a retort since it's nothing more than a logical fallacy to try to appeal to one's emotions.
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Jay (profile), 21 Mar 2011 @ 12:25pm

Re: Re: Re:
That would sure help since they're the ones abusing copyright law to squeeze money out of people for nothing more than an article (with links to LV-J's website), a few words (that was a funny article), and when they themselves didn't create the article (Righthaven, the enforcement dog for LV-J).

Oh, and tell them to bring peanut butter cookies to the courtroom.
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Gwiz (profile), 21 Mar 2011 @ 12:31pm

Re: Re: Re: Re: Re: Re: Re: Re:
If the value is in the brand, the work is in maintaining the brand.

If JRRT's family were only trying capitalize on the Tolkien brand, why would they need copyright to do it?

Copyright only restricts the reproduction of the works and has nothing to do with trademarks or brand value.
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Jose_X, 21 Mar 2011 @ 12:33pm

Re: Re: Re: Re: Re: Re: Re:
Fair use is a requirement struck by the courts in recognizing a balance must exist between copyright law and free speech. This was later codified. This balance must exist because of our Constitutional rights. This is much more than "yes, I broke the law, but" situation because it means you absolutely haven't broken the law by copying if you have stayed on the fair use side.

It seems that courts have diverged from this fair use test, and it's about time we get back on track.
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Anonymous Coward, 21 Mar 2011 @ 12:37pm

Re: Re: Re: Re: Re: Re: Re: Re:
Lenz vs. Universal says that the suing party must first consider whether the use is fair before going after the copyright holder.

Yes, do you generally think that copying an entire article is "fair use"? Rarely. This isn't a case of Righthaven chasing after a quote or a single line. It's a full copy of a story. It's not hard to see where "fair use" would be a debatable concept.
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Jose_X, 21 Mar 2011 @ 12:40pm

Re: Re: Re: Re: Re: Re: Re: Re:
>> "fair use...is not an infringement"

I'm sure there is a way to argue that the law doesn't say what it says.
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Jose_X, 21 Mar 2011 @ 12:42pm

Re: Re: Re: Re: Re: Re: Re:
>> It is an admission of copying something you don't have rights to

Please stop moving the food around your mouth and reply to Richard above, "fair use...is not an infringement".
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Jay (profile), 21 Mar 2011 @ 12:47pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
They've done worse. Is this another attack on anyone disagreeing with your assertion?
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Jose_X, 21 Mar 2011 @ 12:58pm

Re: Re: Re: Re:
>> That is exactly what copyright law was originally intended to do. Fair use IS the default.

Yes.

The Constitution states .. blah blah [monopoly] blah blah, to promote the progress.

Then we amended the Constitution to clarify freedom of speech cannot be denied by government law.

If a copyright monopoly law does not promote the progress or abridges free speech, it is unconstitutional.
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Thwacht (profile), 21 Mar 2011 @ 1:01pm

Re: Re: Re: Re: Re:
I think this "free ride" you are talking about is based on the brand name more than on the original work itself. EA wouldn't keep paying to make new LotR games if we weren't all already familiar with the specific characters and settings of the books (regardless of whether we actually ever read the books).

I enthusiastically acknowledge that branding is much more about the businesses of marketing and promotion than about the original creativity of the work.

Brand names are passed down in all sorts of vocations, however. We may self-righteously hate the deceptive economic mechanics of promotion and marketing, but these endeavors require investments of time and money, too -- not purely a free ride.

To be clear, tho, there is a choice. Tolkien's estate corporation could release control of LotR if it decided to, the same way a plumbing company is free to give up its hard-earned brand name.

In any case, I'm still pretty sure that the public is not forced to buy any books or movies or games that it doesn't want to buy. Am I forced to support Disney just because nobody's giving away free copies of High School Musical?
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Jose_X, 21 Mar 2011 @ 1:02pm

Re: Re: Re:
But the plaintiff is the one that is being given the huge government monopoly subsidy abridging everyone else's freedoms.

Make mine chocolate chip chewy, skim milk.
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Chosen Reject (profile), 21 Mar 2011 @ 1:04pm

Re: Re: Re: Re: Re: Re: Re: Re:
Mickey Mouse is trademarked. Trademark law is meant to protect consumers. As such, so long as Disney is using the Mickey Mouse trademark, no one should be able to. On the other hand, Steamboat Willie (which has Mickey Mouse in it) is a copyrighted work. It is also likely that it is in the public domain. Feel free to download it at will (if you can afford to hire Gregory S. Brown, Lauren Vanpelt, or Peter Jaszi after Disney takes you to court).
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Jose_X, 21 Mar 2011 @ 1:08pm

Re: Re: Re:
>> More so, it puts all of the burdens on the plaintiff without exception.

So maybe now those with copyright will start to compete a little and rely on the courts only for gross abuses rather than doing what they do now, taking advantage of piracy as cheap efficient free promotion and then trying to sue those who helped them.
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Mike Masnick (profile), 21 Mar 2011 @ 1:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Yes, do you generally think that copying an entire article is "fair use"? Rarely. This isn't a case of Righthaven chasing after a quote or a single line. It's a full copy of a story. It's not hard to see where "fair use" would be a debatable concept

We've shown multiple times that using the entire work can be and often is considered fair use. In this case, the judge made it clear why it's fair use, relying on the most important factor: the impact of the use on the market for the original work.

So, yes, using the entire work is, quite frequently, accepted as fair use.
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Jose_X, 21 Mar 2011 @ 1:17pm

Re:
>> You don't understand what free speech is, apparently. It isn't the right to make other people's speech.

Free speech includes (or should) the right to use other people's speech to enhance your own as well as to confirm others' speech as representative of yours. These usages efficiently enhances the original speech and its author. In some cases, a monopoly might help the first author more, but even here it would be at a cost to the speech others could create.
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Jose_X, 21 Mar 2011 @ 1:20pm

Re: Re: Re:
>> and it's most certainly fair use

According to you, the burden should be on you to go to court and spend serious money to prove it is fair use.

Such a simple line, yet according to you, one should have to spend lots of money to prove fair use.
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The eejit (profile), 21 Mar 2011 @ 1:22pm

Re: Re: Re: Re: Apparently I read it differently
Righthaven is not the copyright holder of the sued articles. Stephens Media is. They're not part of the same organisation. Really simplly - that's copyfraud.
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Anonymous Coward, 21 Mar 2011 @ 1:35pm

Re: Re: Re: Righthaven is safe
Wow. Terry gets worse and worse with each passing week.

And yet when it comes to having a legal debate, you can't touch him.

He's now picked up on your ridiculous assertion that it's okay to seize the domains, because it doesn't seize the content on the websites themselves. Of course, this is the same ridiculous game that you were playing in claiming that it's okay to seize the domain names BECAUSE of the content on the websites, but not prior restraint because it's NOT the content being seized. That makes no sense. You're trying to have your cake and eat it too.

You're being silly, and you're not making any sense. You're trying to bring confusion where there is none. My position has always been that not only can they seize the domain name, they can also seize the servers. They can kick in doors and take the alleged infringer's computers. They can put people in handcuffs and book them. All of this can happen upon demonstrating probable cause to a judge and having them sign off on a warrant. You have never presented any evidence to the contrary. Nor can you. It's hilarious that you ignore the entire history of ex parte seizures in criminal and civil copyright cases.

Furthermore, Terry is simply wrong on a separate, but important point: he claims that obscenity can only be determined by the court, but copyright infringement cannot. That's wrong. Copyright infringement is not as objective as he and you wish it would be. And that's where both of you are wrong.

You've made the claim, but can you back it up? Terry backs up all of his arguments. You should try that sometime.
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Anonymous Coward, 21 Mar 2011 @ 1:40pm

Re: Re: Re: Re: Re: Re: Re: Re:
Wow. When pointing to the plain language of the Constitution is thrown back as avoiding the argument, trust me, I've already won this debate.

If you're referring to the preamble to Article I, Section 8, Clause 8, then no, you haven't won the debate. The law of the land, as expressed by the Court in Eldred, is that the preamble is not a substantive limit on Congress's power to create copyright laws. You lose that debate.
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Anonymous Coward, 21 Mar 2011 @ 1:42pm

Re: Re: Re: Re: Re: Righthaven is safe
And what "procedural safeguards" were around for the takedown of 84,000 innocent sites or a blog whose content was provided by the copyright holders themselves?

Presenting a judge with probable cause and getting a warrant is a procedural safeguard. Nothing about the mooo.com case changes that fact.

Right. That thing happening in the back of the brain is "the point," trying to burrow it's way into your consciousness.

LOL! You funny.
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Jay (profile), 21 Mar 2011 @ 1:54pm

Re: Re: Re: Re: Righthaven is safe
Funny how you don't even see the dissonance in people losing any property before being convicted of a crime.

It's almost like saying people have no right to a fair trial when any property of theirs is seized.

Oh wait...
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Jose_X, 21 Mar 2011 @ 2:07pm

Re: One giant step (backwards) for newspapers
>> Lots of people in the newspaper industry have been cheering on Righthaven

Filthy bloggers!
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Jose_X, 21 Mar 2011 @ 2:16pm

Re: Re: Re: Re: Re:
>> If you believed that copyright is the "engine of free expression," as the Supreme Court does, that might make more sense to you.

I think the Court could reasonably conclude that trains are driven from behind. This can be done with trains with very few cars.

The Court's narrow majority ruling was not really considering how best to drive the very very long and fast trains that run on the Internet Super Trackway.
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Richard (profile), 21 Mar 2011 @ 2:16pm

Re: Re: Re: Re: Re: Re: Re: Re:
I don't expect him to - because I suspect he doesn't have an answer...
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Anonymous Coward, 21 Mar 2011 @ 2:18pm

Re: Re: Re: Re: Re: Righthaven is safe
Criminals get their tools taken away upon a showing of probable cause to a judge. This is nothing new.
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Richard (profile), 21 Mar 2011 @ 2:18pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
Presenting a judge with probable cause and getting a warrant is a procedural safeguard.

but not an adequate one.
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Anonymous Coward, 21 Mar 2011 @ 2:22pm

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Why, because MAYBE it didn't work perfectly in one unique scenario? That doesn't render the process inadequate in general, even if a mistake was made. You guys think in extremes too much--it's not an all or none kind of thing. An exception does not change the rule.
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Ken Bingham, 21 Mar 2011 @ 2:44pm

Re: Re: Righthaven Apologists are Anonymous Cowards
Anonymous Coward

Google me. I have written extensively on Righthaven and am actively assisting Righthaven victims. So tell us who you are?
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Ken Bingham, 21 Mar 2011 @ 2:46pm

Re: Anyone else?
I will never again read another news source that has associated with Righthaven. Long after Righthaven is a foot-note in history I will never trust any of these sources again. They are scammers and have betrayed the public trust required by a newspaper.
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Anonymous Coward, 21 Mar 2011 @ 2:56pm

Re: Re: Re:
And your problem with having to show that the use specifically hurt creativity is just the fact that this can't be shown... so requiring the plantiff to actually prove that they were harmed would undermine this whole 'sue over copyright and profit' movement going on amongst the less savory of the lawyers (savory referring to their character, not their flavor....)
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Anonymous Coward, 21 Mar 2011 @ 3:16pm

Re: Re: Re: Re:
Yes a plumber can hand down his empire, but the plumber should not have a right to stop other people from trying to build their own plumbing empire - that would be monopoly. That is what copyright is. A government granted monopoly. Not property. So if you like monopoly, then by all means, support longer terms for copyright.
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Anonymous Coward, 21 Mar 2011 @ 3:21pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Unfortunately there are ruling that say if the work is based on the books, then even though it isn�t verbatim copying, it is a derivative work. Getting rid of the ban on derivative work would go a long way in getting more people to support copyright of some kind.
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Any Mouse (profile), 21 Mar 2011 @ 3:36pm

Re: Re: Re: Re: Re:
The problem seems to be that you believe your own quote should be infringing until it has been proven to be fair use in a court of law. Unfortunately, that is how it is working, right now, and it should not. That is the twisting of the law that seems to have so many here perturbed.
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Any Mouse (profile), 21 Mar 2011 @ 3:41pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
FYI: Hate mongering sites are legal in the United States via the First Amendment.
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Mike Masnick (profile), 21 Mar 2011 @ 3:52pm

Re: Re: Re: Re: Righthaven is safe
And yet when it comes to having a legal debate, you can't touch him.

Your opinion of course. Which is worth... pretty much nothing.

You're being silly, and you're not making any sense. You're trying to bring confusion where there is none. My position has always been that not only can they seize the domain name, they can also seize the servers. They can kick in doors and take the alleged infringer's computers. They can put people in handcuffs and book them. All of this can happen upon demonstrating probable cause to a judge and having them sign off on a warrant. You have never presented any evidence to the contrary. Nor can you. It's hilarious that you ignore the entire history of ex parte seizures in criminal and civil copyright cases

I do not ignore any such history. I have read the cases, and explained why this situation is different, and you instead ignore the many, many cases that disagree with your position. I don't know why.

But, realistically, if you take a common sense look at the situation, I can't see how anyone who has any intellectual honesty can support such seizures. Why is such a seizure needed prior to an adversarial hearing? You never have answered that. Instead, you try to find some twisted interpretation of cases that don't apply (Arcara, again?) and then insist that it's fine if all speech is stifled in situations that any thinking person knows is prior restraint without due process.

You and Terry have the same problem: you're loophole lovers over common sense lovers.

You've made the claim, but can you back it up? Terry backs up all of his arguments. You should try that sometime.

I'm sorry, but I've backed up my arguments in great detail. That you choose to ignore them is not the same thing. Terry's "backups" involve selectively quoting out of context, focusing on loopholes, and ignoring the vast caselaw that disagrees with his position.
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Mike Masnick (profile), 21 Mar 2011 @ 3:55pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
Presenting a judge with probable cause and getting a warrant is a procedural safeguard. Nothing about the mooo.com case changes that fact.

You honestly believe a court would have no problem with the mooo.com seizure?

And, even if a court is okay, with it, tell us: do YOU think it's fine?
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Ed C., 21 Mar 2011 @ 3:57pm

Re: Re: Re: Re: Re: Re: Re:
Exactly! Almost no one would think that proposition is reasonable for society. The current proposition granted by copyright is unreasonable for the same reasons.
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RadialSkid (profile), 21 Mar 2011 @ 4:10pm

Re: Re: Re: Re: Re: Re:
EA wouldn't keep paying to make new LotR games if we weren't all already familiar with the specific characters and settings of the books (regardless of whether we actually ever read the books).

The problem? Only mega-huge media companies like EA can actually afford to produce adaptations of Lord of the Rings. No upstart video game developer could make a LOTR game, nor could your average independent filmmaker afford the rights to it.

This is the problem of copyright...it has become perverted to the point that it is only about protecting legacy jobs and preventing competition from anyone outside of the corporate oligarchy.
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Ken Bingham, 21 Mar 2011 @ 4:53pm

Righthaven, the copyrighters worst enemy.
Why are some like Anonymous Coward defending Righthaven when they just screwed every copyright owner? Seems those that are big on copyrights would be cursing Righthaven not defending them. It was their irresponisble tactics that got you in this situation. If they had of been playing above board none of this would have happened.
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Ken Bingham, 21 Mar 2011 @ 4:59pm

Re: Apparently I read it differently
Sarah

You are correct. If Righthaven was a legitimate law firm representing the copyright holder then this may have very well turned out differently. Stephens Media chose to set up a shady law outfit and used legally dubious means as a way to profit from "infringements" not put an end to them. They are now reaping what they have sewn. Now every copyright holder is paying the price.
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Ken Bingham, 21 Mar 2011 @ 5:05pm

Re: Re: Re:
Yes it is the burden of the plaintiff to prove an infringement has been made and that includes proving it is not fair use. In a civil case the burden is lighter than in criminal matters but the principle of innocent until proven guilty still applies.

Would you want to be sued and have the burden on YOU to prove innocence?
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Ken Bingham, 21 Mar 2011 @ 5:08pm

Re: Re: Re: Re: Re: Apparently I read it differently
Infact the EFF has filed papers that may show these copyright assignments are a sham and that the papers really hold all the rights but allow Righthaven to merely claim they are the copyright holders and falsely register with the US copyright office as the copyright owner. The the EFF is correct their could be fraud involved.
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Ken Bingham, 21 Mar 2011 @ 5:14pm

Re:
ATM

Without the fear factor they cannot possibly make money because more people are willing to fight them. Since the courts are not going easy on them Righthaven will have to lower their settlement amounts considerably to keep their victims out of the courtroom.
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Anonymous Coward, 21 Mar 2011 @ 5:30pm

Re: Re: Re: Re: Re: Righthaven is safe
Your opinion of course. Which is worth... pretty much nothing.

I also agree with the AC. You can't compare your faith-based "analysis" to Terry's calm, well-reasoned, and well-researched legal analysis, whether one agrees with the results or not. The dearth of any legal precedent beyond a few cases shows the lack of depth that permeates your articles.

But, realistically, if you take a common sense look at the situation...

This is part of the problem... your faith-based beliefs (aka "common sense look") are getting in the way of any real legal analysis, and blinding you to solid legal arguments that don't agree with your interpretation of how things aught to be.

I'm sorry, but I've backed up my arguments in great detail.

And by "I've" and "my arguments" do you mean appropriating the analysis and beliefs of Karl? You tend to do that often on this subject.

In any event, it doesn't matter. No matter how much legal evidence is presented to the contrary, you'll simply label the evidence as "thoroughly debunked", and describe the issue as definitively settled in your favor.
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Karl (profile), 21 Mar 2011 @ 5:46pm

Re: Re: Re: Re: Re: Righthaven is safe
Terry's "backups" involve selectively quoting out of context, focusing on loopholes, and ignoring the vast caselaw that disagrees with his position.

The name of this logical fallacy is Cherry Picking. The whole "debate" about Arcara is a prime example of that fallacy.

And, yeah, his arguments do seem to be going more in that direction as of late. I have no idea why. I guess he's just desperate to justify the ex parte blocking of protected speech.
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Karl (profile), 21 Mar 2011 @ 5:48pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
appropriating the analysis and beliefs of Karl?

If you think that's what he does, you're absolutely wrong.
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Mike Masnick (profile), 21 Mar 2011 @ 6:07pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
And, yeah, his arguments do seem to be going more in that direction as of late. I have no idea why. I guess he's just desperate to justify the ex parte blocking of protected speech

It's too bad. When his blog started, he would at least acknowledge the other point of view, and seemed more open to it. However, since the turn of the year, it seems that he's shifted into a different gear, which involves mostly propaganda. Disappointing. I used to link to his stuff, but these days, it just doesn't seem worth it.

Hopefully he'll go back to his prior sort of reasoned analysis.
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Anonymous Coward, 21 Mar 2011 @ 6:13pm

Re: Re: Re: Re: Re: Righthaven is safe
"Why is such a seizure needed prior to an adversarial hearing?"

If I may ask, were any of the seized domain names associated with businesses physically located within the US, and if so which ones?
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btr1701 (profile), 21 Mar 2011 @ 6:17pm

Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
> Fair use is an affirmative defense,
> something used by the defendants
> as a "yes, I broke the law but"
> type process.

Fair use is not an affirmative defense. It's a statutorily recognized exception to the copyright law itself.

As you correctly note, when an affirmative defense is used (self-defense in the case of homicide, for example), the defendant admits to the violation of law. The burden of proof then shifts from the prosecution to the defendant, who must then prove that his/her actions meet the requirements by a standard of "clear and convincing evidence" (less rigorous than "beyond a reasonable doubt" but greater than "preponderance of the evidence").

None of this applies to fair use. Fair use is not a violation of the copyright law on its face and as such the defendant need not prove himself "innocent" in order to assert it. The clearest sign that fair use is not an affirmative defense is that the burden of proof in a copyright infringement case never shifts to the defendant. It always remains with the plaintiff, regardles of whether fair use is plead or not.
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JMT, 21 Mar 2011 @ 6:19pm

Re: Re: Re:
"Rather than the burden being on the defendant to "prove that it is fair use", the judge attempts to shift it to the plaintiff to "prove it isn't fair use"."

So rather than the burden being on the defendant to prove themselves innocent, the judge attempts to shift it to the plaintiff to prove they're guilty. And you don't think that's the way it should be?

"That is an incredible 180 degree shift in the law."

Maybe in the messed up world of copyright law, but not in any other area of criminal law that I know of.
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btr1701 (profile), 21 Mar 2011 @ 6:19pm

Re: Re: Re: Re: Re: Re: Re:
> If you guys don't like copyright laws,
> that's fine, but your remedy is with
> Congress, not the courts.

Congress cannot act extra-constitutionally and when they do, it's legitimate for the courts to call them on it and invalidate their actions.
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btr1701 (profile), 21 Mar 2011 @ 6:21pm

Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
> Come on now: Is fair use an
> affirmative defense or not?

It's not. I explained the reason why elsewhere in this thread.
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btr1701 (profile), 21 Mar 2011 @ 6:27pm

Re: Re: Re: BoP
> More so, it puts all of the burdens on the
> plaintiff without exception.

Which is how our judicial system has functioned since the inception of the Republic.

Suddenly we should toss it all out the window just to please the entertainment industry?

We put the burden of proof on the prosecution (plaintiff) in "all cases" in murder, rape, extortion, and terrorism cases and that's fine, but when it comes to someone drawing an unauthorized version of Mickey Mouse, well, that's way too serious an issue to impose such strict an onerous requirements, huh?

And I'm curious why you think this issue is beyond the "scope" of this court? Ruling on issues of constitutionality and interpretation of the US Code fit squarely within this court's scope. Please explain why you believe otherwise.
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Anonymous Coward, 21 Mar 2011 @ 6:35pm

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
When his blog started, he would at least acknowledge the other point of view, and seemed more open to it.

And would you say that your articles on the seizures acknowledge and are open to other points of view? If this isn't the pot calling the kettle black, I don't know what is.

(And before you post a response that just says "of course I am! [something snarky]" it would be helpful if you also provided links to any articles and/or commentary which backs up the statement)
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Anonymous Coward, 21 Mar 2011 @ 6:47pm

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe

It's too bad. When his blog started, he would at least acknowledge the other point of view, and seemed more open to it. However, since the turn of the year, it seems that he's shifted into a different gear, which involves mostly propaganda. Disappointing. I used to link to his stuff, but these days, it just doesn't seem worth it.

Hopefully he'll go back to his prior sort of reasoned analysis.

It's clear to this reader that he systematically debunks most of your talking points. Of course you're going to pretend that you're writing him off--you're just trying to do some damage control. The fact is, Terry mops the floor with you when it comes to legal argument and debate. It's not even close, Mike. Don't pretend like you don't know it.
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Anonymous Coward, 21 Mar 2011 @ 7:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
"it would be helpful if you also provided links to any articles and/or commentary which backs up the statement"

Why should Mike or anyone else bother to do this for you yet again, when "In any event, it doesn't matter. No matter how much legal evidence is presented to the contrary, you'll simply label the evidence as "thoroughly debunked", and describe the issue as definitively settled in your favor."
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Anonymous Coward, 21 Mar 2011 @ 7:26pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Yet again? He's never shown evidence of being even remotely fair or balanced before.

And the issues are different. If Mike can provide evidence that he's open minded (as he claims Terry is not) I'd love to see that evidence. Otherwise, he's a hypocrite.
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Anonymous Coward, 21 Mar 2011 @ 7:27pm

Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
Fair use is not an affirmative defense.

Wanna bet?

"Fair use is an affirmative defense . . . ." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 599, 114 S. Ct. 1164, 1181, 127 L. Ed. 2d 500 (1994).

It worries me that you're a federal agent, yet you consistently display your ignorance of the law in the comments section.
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Anonymous Coward, 21 Mar 2011 @ 7:34pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
And would you say that your articles on the seizures acknowledge and are open to other points of view? If this isn't the pot calling the kettle black, I don't know what is.

(And before you post a response that just says "of course I am! [something snarky]" it would be helpful if you also provided links to any articles and/or commentary which backs up the statement)

You won't get a response. He can't point to one article about the seizures where he acknowledges other points of view. Mike decided the seizures were "unconstitutional" the moment he first heard of them. There was no actual constitutional analysis involved in making that determination. The constitutional analysis has been cursory post hoc rationalization. There is very little substance, much less research, behind Mike's "legal opinions."
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Anonymous Coward, 21 Mar 2011 @ 7:46pm

Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
None of this applies to fair use. Fair use is not a violation of the copyright law on its face and as such the defendant need not prove himself "innocent" in order to assert it. The clearest sign that fair use is not an affirmative defense is that the burden of proof in a copyright infringement case never shifts to the defendant. It always remains with the plaintiff, regardles of whether fair use is plead or not.

That is not correct. The plaintiff in a copyright infringement case bears the initial burden, and they must show that they own the copyright and that the defendant copied the work, i.e., establish a prima facie case of infringement. The burden then shifts to the defendant to prove a defense, such as fair use.
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Anonymous Coward, 21 Mar 2011 @ 8:12pm

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
If you think that's what he does, you're absolutely wrong.

I've seen Mike time and again say that he doesn't need to explain some legal point because it's already been explained by you, i.e., he's appropriating your analysis and beliefs. Seems rather frequent to me. I always assume he does that so he doesn't have to try and make legal arguments himself. He doesn't want to look foolish, IMO.
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Ken Bingham, 21 Mar 2011 @ 8:18pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
That's ridiculous. If it is fair use then it isn't an infringement. Remember using any copyrighted even with permission is fair use. Fair use simply covers all the legal ways you can use copyrighted material with or without permission. The only argument is how wide and how many ways fair use can be applied.

Fair use has gotten little hearing in the courts because of the draconian copyright laws have scared almost everyone accused of copyright infringement, even if they are well within their fair use rights into settling because of the costs and risks of bringing it to court. Righthaven has unethically taken advantage of this fact for no other reason that making money.

What is ironic is that Righthaven's methods so offended everyones sense of justice that people had to fight back and now there is going to be many precedents set that will more fully define it and it is not going to be to Righthaven's liking.
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Anonymous Coward, 21 Mar 2011 @ 8:36pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
That's ridiculous. If it is fair use then it isn't an infringement. Remember using any copyrighted even with permission is fair use. Fair use simply covers all the legal ways you can use copyrighted material with or without permission. The only argument is how wide and how many ways fair use can be applied.

Fair use has gotten little hearing in the courts because of the draconian copyright laws have scared almost everyone accused of copyright infringement, even if they are well within their fair use rights into settling because of the costs and risks of bringing it to court. Righthaven has unethically taken advantage of this fact for no other reason that making money.

What is ironic is that Righthaven's methods so offended everyones sense of justice that people had to fight back and now there is going to be many precedents set that will more fully define it and it is not going to be to Righthaven's liking.

No offense, but you don't seem to have any idea what you're talking about.
Fair use is an affirmative defense and, as such, the burden of proving fair use *565 is always on the party asserting the defense, regardless of the type of relief sought by the copyright owner. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, ----, and n. 20, 114 S.Ct. 1164, 1177 and n. 20, 127 L.Ed.2d 500, 522 and n. 20 (1994) (citing Harper & Row, 471 U.S., at 561, 105 S.Ct. at 2230; H.R.Rep. No. 102-836, p. 3, n. 3 (1992)); see also American Geophysical Union v. Texaco Inc., 37 F.3d 881 (2d Cir.1994).16 Of course, as an affirmative defense, the issue of fair use is not relevant until the copyright owner has established a prima facie case of infringement. See H.R.Rep. No. 102-836 p. 3. To make out such a case, a copyright owner must demonstrate ownership of the right asserted and unauthorized appropriation by the defendant of a material amount of the expression. See id.; see also Association of Am. Medical Colleges v. Mikaelian, 571 F.Supp. 144, 149 (E.D.Pa.1983), aff'd without opinion, 734 F.2d 3 (3d Cir.1984) (�Mikaelian �).
Coll. Entrance Examination Bd. v. Pataki, 889 F. Supp. 554, 564-65 (N.D.N.Y. 1995).

That's basic stuff. You seem quite confused.
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Hans, 21 Mar 2011 @ 8:53pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
Criminals get their tools taken away upon a showing of probable cause to a judge.

Right, all 84,000 of them.
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Anonymous Coward, 21 Mar 2011 @ 9:11pm

After doing some research, I stand corrected that fair use cannot be decided on a motion to dismiss. From the Ninth Circuit:
Fair use is a mixed question of law and fact, Harper & Row Publishers, 471 U.S. at 560, 105 S.Ct. 2218, but it is well established that a court can resolve the issue of fair use on a motion for summary judgment when no material facts are in dispute. See Mattel, 353 F.3d at 800 (citing Harper & Row Publishers, 471 U.S. at 560, 105 S.Ct. 2218). The posture of this case is unusual because the district court decided the fair use issue on a motion to dismiss. However, the district court's resolution of the fair use issue at the motion to dismiss stage was proper. Leadsinger's assertion of fair use may be considered on a motion to dismiss, which requires the court to consider all allegations to be true, in a manner substantially similar to consideration of the same issue on a motion for summary judgment, when no material facts are in dispute.
Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 530 (9th Cir. 2008).

Now, this does not mean that it is necessarily proper to decide fair use on a motion to dismiss in this case, but I was certainly wrong earlier in the thread when I categorically said it was improper to do so in all cases.
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Anonymous Coward, 21 Mar 2011 @ 9:15pm

Re:
In my defense, such rulings are the exception, and not the rule:
Courts analyze fair use as a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). As a consequence, in order to undertake the fair use analysis, a court usually must make factual findings, or rely on undisputed or admitted material facts. See Harper & Row Publishers, Inc., 471 U.S. at 560, 105 S.Ct. 2218.45 Generally, when analyzing a Rule 12(b)(6) motion, a court's analysis of the plaintiff's claims is limited to its allegations in the complaint. See Arpin, 261 F.3d at 925. At this stage, a court does not make factual findings, nor deem material facts undisputed or admitted. Thus, in light of a court's narrow inquiry at this stage and limited access to all potentially relevant and material facts needed to undertake the analysis, courts rarely analyze fair use on a 12(b)(6) motion. See Four Navy Seals v. Associated Press, 413 F.Supp.2d 1136, 1148 (S.D.Cal.2005); see also Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997).
Browne v. McCain, 612 F. Supp. 2d 1125, 1130 (C.D. Cal. 2009) (emphasis added).
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Anonymous Coward, 21 Mar 2011 @ 9:59pm

Re: Re: Re: Re: Re: Re: Apparently I read it differently
Infact the EFF has filed papers that may show these copyright assignments are a sham and that the papers really hold all the rights but allow Righthaven to merely claim they are the copyright holders and falsely register with the US copyright office as the copyright owner. The the EFF is correct their could be fraud involved.

I suspect that whatever this "smoking gun" evidence is, it's not as damaging as the EFF would have us believe. The truth will come out about what this evidence is soon enough. I'm quite curious myself.
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Jay (profile), 21 Mar 2011 @ 10:06pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
You're starting to take that turn into absolutism.

What's particularly annoying is you have nothing to really back this assertion and you actually believe that the law is absolute.

But then, there's one big glaring problem with believing that all laws are created equal.

And of course, in this day and age, some of the policies presented also have glaring holes.

So tell me, what do YOU see coming out of this that actually benefits the copyright holders? Now, these supposed criminals that righthaven is suing (catlady, Dallas Times, etc), what in the blue bloody HELLS does anyone gain by being sued by a third party?

You speak as if you know every damn thing about the law, but something tells me you don't. You're free to express an opinion but right now, you have nothing to back you up.
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Jay (profile), 21 Mar 2011 @ 10:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Your opinion is wrong. He has explained each one in great detail in both the comments and the stories as they come out. I'm sure if you wanted to search for them, you can.
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Anonymous Coward, 21 Mar 2011 @ 10:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
Fair Use is a classic affirmative defense. Yes, it is recognized as an exception to the rights granted a copyright holder under Title 17, but it is incumbent on the defendant to demonstrate that it qualifies for the benefit conferred by the fair use provision.

Frankly, it is much more useful to think of fair use in the context of how litigation is conducted. In the typical case, when a complaint withstands the many means that are available to a defendant to challenge the legal sufficiency of a complaint, a defendant is eventually required to file an answer to the complaint, and it is within the answer that affirmative defenses are raised.
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Anonymous Coward, 21 Mar 2011 @ 10:31pm

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
The rights holders seem happy it. They keep assigning copyrights to Righthaven. Perhaps their goal was deterrence and they're seeing positive results.
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Jose_X, 21 Mar 2011 @ 10:33pm

Re: Re: Re: Re: Re: Re:
>> Tolkien's estate corporation could release control of LotR if it decided to, the same way a plumbing company is free to give up its hard-earned brand name.

>> In any case, I'm still pretty sure that the public is not forced to buy any books or movies or games that it doesn't want to buy.

You continue to miss the point.

The problem is that others are not allowed to compete for similar services and products and brand improvement when we apply copyright law.

That is a fundamental difference between the author example and the plumber example.
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Jose_X, 21 Mar 2011 @ 10:35pm

Re: Re: Re:
>> I don't think that JRR Tolkien wrote his books to support his grandchildren.

He probably did use money from those works to help his grandchildren.
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Mike Masnick (profile), 21 Mar 2011 @ 10:39pm

Re: Re: Re: Re: Re: Re: Righthaven is safe
If I may ask, were any of the seized domain names associated with businesses physically located within the US, and if so which ones?

You asked this last week, and I answered last week. Why are you still doing so?

Dajaz1 and OnSmash are both based in the US. Channelsurfing is based in the US. Those are the ones I'm familiar with.

Even so I'm not sure why that matters. We had this discussion last week where you seemed to think that made a difference. It does not. It's still possible to have a hearing, and if the domain holders don't show up, to have a default judgment.

All of that *can* be done prior to seizure. But it was not. You have not explained why. You've only said that seizing prior to a hearing is the "only" remedy because the domains are outside the US, even though we've already pointed out that this is not true for many.

I'm not sure why you would pretend again, that this is the case, even though we already had this discussion.
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Jay (profile), 21 Mar 2011 @ 10:40pm

Terry Hart ain't got nothin' on Mike.
Terry ISN'T open minded.

By the gods, have I tried to be at least partially balanced on his website.

1) He doesn't acknowledge anyone but the people that say "great article"

2) It seems more and more he's talking lowly of others instead of actually having a debate

3) He has at least TWO people that constantly come out to "defend" him if you so much as have a difference in opinion.

I've said I'm a skeptical person on his blog. I've picked apart his arguments in minute detail in just the first link. Source

And he constantly uses industry numbers as if they're the gospel. Everywhere else, there's a debunking process that looks and criticizes them. His latest article regarding "magic words" really seals the deal. I thought it would be interesting to see Terry, a lawyer debate the legality of these takedowns. It's all the more disappointing that he has attacked techdirt fans (Link) when I honestly enjoyed his earlier writeups for taking a minute look at the law.

I didn't always agree with them, but Terry seemed to be fairly balanced without seeming to take sides. That seemed to change with the July takedowns.

So no, at least with Mike, whether I agree or disagree, Mike seems to back up his claims. Terry looks at minute readings and quotes fully out of context (which I've also called him out on in his blog as well).

IIRC, here's one example, where Terry says NOTHING regarding substitute products, but he instead goes on and on, and ON AND ON, about how artists aren't making money, or they're not being paid because of piracy. Nevermind any other evidence to the contrary, it's because those darned pirates won't pay!

Last I checked, he wasn't an economist. Laughably, his analysis on losses is outsourced to the very industry that loses the most because consumers aren't bundled to CDs or music they don't like. Maybe he should look at some of his older stuff and see why some of the commentators aren't there as much anymore.
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Karl (profile), 21 Mar 2011 @ 10:42pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
I've seen Mike time and again say that he doesn't need to explain some legal point because it's already been explained by you, i.e., he's appropriating your analysis and beliefs.

You're misunderstanding Mike. He claimed that he has already explained some point. I may happen to agree with him, after looking up the cases that he refers to, but that doesn't mean we're in some sort of legal conspiracy.

In fact, I actually disagree with him on some points, like the virtues/detriments of non-commercial licenses. (It's a sticky point, actually.) We're not the same person, so it's a good idea if you discard that idea right now.
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Jay (profile), 21 Mar 2011 @ 10:43pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Here's a challenge. Name three. I'll wait.
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Jay (profile), 21 Mar 2011 @ 10:46pm

Re: Re: Re: Re: Re: Re: Re: Apparently I read it differently
So...

Why would Righthaven seem to go out of their way to dismiss the evidence since it's sealed?

Also, they have had their own run of bad luck...

That smoking gun could be hotter than you think.
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Mike Masnick (profile), 21 Mar 2011 @ 10:46pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
I've seen Mike time and again say that he doesn't need to explain some legal point because it's already been explained by you

*sigh* Please. I wrote up a full legal analysis prior to Karl's post that linked to and discussed multiple case law situations. It was reviewed by three different lawyers (including some that I've named before and who comment here) and who said they agreed with my analysis.

Karl's post added to that.

In the meantime, we've linked to three other lawyers' analysis of the same thing, and they've all explained why the seizures are unconstitutional. And yet you're so clueless that you think we're all hanging on Karl's analysis?

Really?
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Jose_X, 21 Mar 2011 @ 10:48pm

Re: Re:
That they rarely do so does not make that the better approach. Part of the problem might be defendants not recognizing their rights.
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Mike Masnick (profile), 21 Mar 2011 @ 10:48pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Terry mops the floor with you when it comes to legal argument and debate. It's not even close, Mike. Don't pretend like you don't know it.

You make me laugh. Terry's a kid who discovered how to cite selectively and ignore what the case law and the actual law actually says. I'm sure he's useful to whomever he's working for (btw, why doesn't he say who he's working for?), but he's hardly an unbiased or objective party. His analysis is so one-sided and wrong as to make us all laugh. What he's good at is sounding lawyerly. What he's bad at is actually making an argument that is supported by the law.
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Mike Masnick (profile), 21 Mar 2011 @ 10:51pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
And would you say that your articles on the seizures acknowledge and are open to other points of view? If this isn't the pot calling the kettle black, I don't know what is.

Nope. But I don't present my articles as if it's the one true gospel of the law. Terry does. This site is my opinion and that's clear. Terry's site, on the other hand, pretends that he knows the law. He doesn't. The number of copyright lawyers I've heard mock his analysis seems to be growing by the week. I find it funny that he's suckered some of you into thinking his analysis is somehow complete or accurate.
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Anonymous Coward, 21 Mar 2011 @ 10:56pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Issue doesn't matter, your response will be the same as your quote.

You demand evidence of an open mind from whoever, yet won't respond in kind.

Yet again. Makes you easy to spot.

You are well spoken and seem to have conviction, but will concede nothing, despite demanding such from others.

It would be very interesting to see you divest yourself from what seems to be personal bias and apply your intellect to the other side of the issue, just as an exercise.
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Anonymous Coward, 21 Mar 2011 @ 10:59pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
What he's bad at is actually making an argument that is supported by the law.

And yet he publishes article after article of well-researched and fully-cited legal arguments, none of which you can adequately rebut. You, on the other hand, post a very narrow view of the universe supported only by pseudo-legal arguments. You think someone saying it's "prior restraint of speech, and you can't do that in America" is by itself legal analysis.
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Anonymous Coward, 21 Mar 2011 @ 11:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Nope. But I don't present my articles as if it's the one true gospel of the law. Terry does. This site is my opinion and that's clear. Terry's site, on the other hand, pretends that he knows the law. He doesn't. The number of copyright lawyers I've heard mock his analysis seems to be growing by the week. I find it funny that he's suckered some of you into thinking his analysis is somehow complete or accurate.

Where is their written analysis? What are their arguments?

Please stop telling us about all the lawyers that agree with you. That's quite meaningless.
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Anonymous Coward, 21 Mar 2011 @ 11:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So, yes, using the entire work is, quite frequently, accepted as fair use

I think the correct answer is "in limited circumstances". Generally, it would not be considered fair use except in some fairly exceptional circumstances (as is listed in the statued). Generally, copying an entire work isn't going to fall under fair use.

To suggest otherwise would go against the judgement in Harper&Row v Nation Enters - unless of course the use was specific in one of the narrow categories under which fair use is granted. Even then, the portion of the copied work involved can come into play (especially if the amount of the original work used is far in excess of the needs for the "fair use" )
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Anonymous Coward, 21 Mar 2011 @ 11:14pm

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Umm, yes. Congrats. Fair Use isn't an infringement.

However, copying the work is an infringment on it's face. Fair use is the affirmative defense used to say "yes, we copied it, but within the limits of the law". As fair use isn't a hard set law, but rather a question of judgement and various tests developed over time, it isn't a given. It isn't something that a copyright holder can easily confirm until it s brought to court.

An affirmative defense is always a "yes I did but" defense by it's very nature. The copryight violation which is clear by definition is negated by the affirmative defense.

What this judge is suggesting is that the copyright holder would have to go beyond proving the basics of the copyright violation (they own the rights, they didn't grant rights, the item was copied / reused without permission), and move it on to trying to second guess what the fair use judgement MAY be in a court case.

That stinks.
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Anonymous Coward, 21 Mar 2011 @ 11:29pm

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Wasn't channelsurfing owned by a guy in Turkey?
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Anonymous Coward, 21 Mar 2011 @ 11:30pm

Re: Re: Re: Righthaven Apologists are Anonymous Cowards
Which makes you the bearer of a one sided hatchet job. Congrats on identifying yourself as someone who has a stake in the game.

Me? Just an anonymous poster.
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Jay (profile), 21 Mar 2011 @ 11:56pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
No, that was torrentfinder.

Bryan was in TX.
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Jay (profile), 21 Mar 2011 @ 11:57pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Zoe Lofgren disagrees with you.
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Jay (profile), 21 Mar 2011 @ 11:58pm

Re: Re: Re:
Or it being too much of a hassle to go through a full lawsuit over one article.
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Karl (profile), 22 Mar 2011 @ 12:05am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Where is their written analysis? What are their arguments?

Well, one such analysis was written by a judge. It might be easy for you to miss, though, since it is the entire subject of this post.
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Karl (profile), 22 Mar 2011 @ 12:13am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
Zoe Lofgren disagrees with you.

And here's something the AC's missed. Not only is she a lawyer, she's a U.S. Senator. That means that she has a hand in creating the laws that wonks like Hart are charged with interpreting.

She was, in fact, one of those who created 17 USC 512 in the first place. You'd think her opinion on that law's intention would carry some weight. Apparently not; find one Terry Hart, and the entire intent of the law is null and void.
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Richard (profile), 22 Mar 2011 @ 5:33am

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
The rights holders seem happy it. They keep assigning copyrights to Righthaven. Perhaps their goal was deterrence and they're seeing positive results.

Chief execitives (and politicians) the world over are suckers for a salesman who knows his trade. This is nothing new!
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Richard (profile), 22 Mar 2011 @ 6:01am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense
You misunderstand.
Fair use can be asserted as an affirmative defence (in which case the burden of proof shifts somewhat). But is not only or merely an affirmative defence. It is part of the law.

The fact that it is commonly asserted as a defence when other issues have been resolved does not somehow downgrade its status.

You are confusing the typical practice of cases (based mainly on convenience for all involved) with the law itself. However the law is clear. Fair use is an exception to copyright.

When a plaintiff establishes a prima facie case of infringement they will have already shown that the copying was not obviously fair use. The assertion of fair use as an affirmative defence only occurs when it is NOT obvious.
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Marcel de Jong (profile), 22 Mar 2011 @ 6:04am

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Oh I'm sure, but that does not mean that his grandchildren should LIVE off the benefits of work that THEY didn't produce.

The heirs of JRR Tolkien aren't little kids or orphans, they are grown up adults, perfectly capable of supporting themselves, without the need for crutches made by their (grand)parents.
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Anonymous Coward, 22 Mar 2011 @ 7:08am

Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
In all honesty, I do not believe (though perhaps I may be mistaken) asking what sites, if any, were physically located in the US. I believe my point was simply to note that that the likelihood of adversarial hearings involving foreign sites was virtually nil for any number or reasons, not the least of which is that the operators of foreign sites would hardly believe it to be a good idea to appear before a US court and thereby permit the court to exercise in personam jurisdiction over the operators.

While associated with civil litigation, perhaps it might be useful to draw an analogy between the in rem proceedings here and an ex parte TRO. In each instance a useful purpose is served, and that is to maintain the status quo for the time being.

I have asked before, and at the risk of repeating myself I ask again. The constant litany of ad hominen comments is wearing thin.
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Anonymous Coward, 22 Mar 2011 @ 7:16am

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
The constant litany of ad hominen comments is wearing thin.

Mike goes straight to ad hominem when he's got nothing of substance to reply with. It's his S.O.P.
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Anonymous Coward, 22 Mar 2011 @ 7:23am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
To the contrary, I have read Mr. Hart's various articles and have been quite impressed by the depth of his research into the issues he discusses in his articles.

As for his "newness" as an attorney, the very same thing can be said of every law clerk at every level of the US judicial system. These new attorneys (clerks) wield significant power, and yet I have never seen articles dismissive of their "newness". The truth be known, it is generally recognized within the legal profession that it is those newly graduated from law school who are the most familiar with substantive law. Mr. Hart is no exception.

For the benefit of those who may doubt my above observation, senior attorneys in law firms by and large look to newly minted attorneys to perform the research and the preparation of legal briefs precisely because of their knowledge of substantive law.
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Gwiz (profile), 22 Mar 2011 @ 8:31am

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On the other hand, Steamboat Willie (which has Mickey Mouse in it) is a copyrighted work. It is also likely that it is in the public domain.

Unfortunatly, it's not in the public domain yet.

From the Wikipedia Steamboat Willie page:

The film has been the center of some attention regarding the 1998 Copyright Term Extension Act passed in the United States. Steamboat Willie has been close to entering the public domain in the United States several times. Each time, copyright protection in the United States has been extended. It could have entered public domain in 4 different years; first in 1956, renewed to 1984, then to 2003 by the Copyright Act of 1976, and finally to the current public domain date of 2023 by the Copyright Term Extension Act (also known pejoratively as the Mickey Mouse Protection Act)[3] of 1998. The U.S. copyright on Steamboat Willie will be in effect through 2023 unless there is another change of the law.

So, maybe next decade, if we are lucky.
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Chosen Reject (profile), 22 Mar 2011 @ 8:50am

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Keep reading the Wikipedia page as well as the link around Peter Jaszi. A lot of people think that Steamboat Willie is definitely not copyrighted anymore.
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Killer_Tofu (profile), 22 Mar 2011 @ 8:53am

Re: Re: Re: Re: Re: Re: Righthaven is safe
Wait, copyright holders provide child pron?
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Ken Bingham, 22 Mar 2011 @ 10:05am

Re: Re: Re: Re: Righthaven Apologists are Anonymous Cowards
This is no game right now Brian Hill who is has an extreme for of diabetes is having more frequent attacks since he is being sued by Righthaven. He could die from this ordeal and yet Righthaven still pushes. Righthaven cannot collect a dime from him because his only income is a SSI disability check however they keep pushing him.

If Brian Hill dies or his health is severely damaged the Hill Family will end up owning Stephens Media and News Media Group.
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Richard (profile), 22 Mar 2011 @ 10:25am

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However, copying the work is an infringment on it's face.

Only when it is not obviously fair use.

What this judge is suggesting is that the copyright holder would have to go beyond proving the basics of the copyright violation (they own the rights, they didn't grant rights, the item was copied / reused without permission), and move it on to trying to second guess what the fair use judgement MAY be in a court case.
Au contraire - the rightsholder is required to consider if the use is fair before even bringing the case.

You are confused by the fact that most cases of fair use that come to trial are cases where the situation is not obvious and fair use is the criterion most likely to be unclear so many trials hang on relatively subtle factors relating to fair use.

The statute is clear - fair use is not infringemnt. It follows that when use is obviously fair (which it was in this case in the judge's opinion - if not in yours) then the case can be thrown out at an early stage.
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Anonymous Coward, 22 Mar 2011 @ 11:13am

Re: Copyright Time Limits
Used for what?
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Anonymous Coward, 22 Mar 2011 @ 11:23am

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I agree - it SHOULD work that way, but the legislature get tremendous pressure from corporations and prosecutors to make everything illegal, and then leave it up to the defendant to raise an affirmative defense. If one looks at how statutes have developed over the last 50 years, one can spot a trend. It used to be that a crime included a mens rea mental state requirement, like intent to commit the crime. However, many of those crimes have be changed so that the MERE ACT is illegal , and mental state is only an affirmative defense because prosecutors hate to have to prove intent.
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Richard (profile), 22 Mar 2011 @ 3:15pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:

What this judge is suggesting is that the copyright holder would have to go beyond proving the basics of the copyright violation (they own the rights, they didn't grant rights, the item was copied / reused without permission), and move it on to trying to second guess what the fair use judgement MAY be in a court case.

That stinks.

So copyright holders actually having to pay attention to the law is somehow bad ?

Really?

What planet are you on?
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Mike Masnick (profile), 22 Mar 2011 @ 4:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
And here's something the AC's missed. Not only is she a lawyer, she's a U.S. Senator.

Just one small note of clarification. Lofgren is not a Senator. She's a Representative in the House. But, yes, the rest of your comment is dead on.
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Mike Masnick (profile), 22 Mar 2011 @ 4:41pm

Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
In all honesty, I do not believe (though perhaps I may be mistaken) asking what sites, if any, were physically located in the US. I believe my point was simply to note that that the likelihood of adversarial hearings involving foreign sites was virtually nil for any number or reasons, not the least of which is that the operators of foreign sites would hardly believe it to be a good idea to appear before a US court and thereby permit the court to exercise in personam jurisdiction over the operators.

None of which precludes an initial hearing.

Which was the point we made to you last week.

I have asked before, and at the risk of repeating myself I ask again. The constant litany of ad hominen comments is wearing thin

It is no ad hominem to point out that you asked the same question last week, were debunked, and now choose to ask it again as if you have a point.
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Anonymous Coward, 22 Mar 2011 @ 8:18pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: ...

I'm sorry -- What were we talking about again?
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Anonymous Coward, 22 Mar 2011 @ 9:14pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
At long last I am beginning to understand why "Angry Dude" made succint and clearly over the top remarks.

It is my perception that disagreement over a matter of law is simply not well received here, even when pains are taken to try and explain why the law does not necessarily support many of the comments posted here. Due Process and Free Speech tend to be viewed as immutable absolutes, even though opinions presented by the Supreme Court eschew such absolutism.
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Mike Masnick (profile), 22 Mar 2011 @ 10:36pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Righthaven is safe
At long last I am beginning to understand why "Angry Dude" made succint and clearly over the top remarks.

Because he wanted to abuse the system for his own profit?

It is my perception that disagreement over a matter of law is simply not well received here, even when pains are taken to try and explain why the law does not necessarily support many of the comments posted here. Due Process and Free Speech tend to be viewed as immutable absolutes, even though opinions presented by the Supreme Court eschew such absolutism.

This is simply untrue. Reasonable, well thought out, and well-explained arguments, even those that disagree with what we have to say, are generally quite well received. To date, you have not provided that in this thread.

However, we do not suffer foolish posts easily, and when someone such as yourself makes an assertion (such as by implying that these domains were all foreign and thus there was no other option but to seize), do not be surprised when we call you on it.

I call it like I see it. And when you're wrong, you're wrong.
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Anonymous Coward, 23 Mar 2011 @ 7:02am

My contribution to free speech:

Steven Gibson, Esq of Righthaven:

(702)869-0660 Home
(702)499-3791 Cell
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Steven Gibson, 27 Mar 2011 @ 3:59pm

My webpage
I put together my personal webpage: http://members.cox.net/mandible2/
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