Unsealed Righthaven Agreement Has Other Judges Questioning Legitimacy Of Righthaven's Lawsuits
from the and-here-we-go... dept
While we still have a lone holdout in our comments who thinks that Righthaven's lawsuits are legit, despite the recently revealed evidence that the company holds none of the rights available under the Copyright Act, it appears that other judges dealing with Righthaven are paying attention. In a separate case from the one in which the initial agreement between Stephens Media and Righthaven was revealed, a different judge is now using that document to question Righthaven's standing to bring a lawsuit in the first place. This time, it's Judge James Mahan, who was the judge who recently slammed Righthaven in another lawsuit for going against the purpose of the Copyright Act, and declaring that a non-profit's use of an entire Stephens Media article was fair use.This latest case involves a blog, Pahrump Life, which was sued by Righthaven for posting another Stephens Media/LVRJ article, but Judge Mahan is questioning whether or not the newly revealed agreement between the companies means Righthaven even has the standing to sue.
The contract, unsealed earlier this month at the request of the Electronic Frontier Foundation, provides that Stephens Media retains the ability to license the articles, while Righthaven only has the right to bring infringement cases. The potential problem with that arrangement is that Righthaven can't argue that it's being economically harmed by any infringement, because it lacks the ability to profit from the news articles. Litigants typically must be able to show some sort of economic damage as a prerequisite to suing.The judge told Righthaven to make its case for why it should be allowed to bring the lawsuit, so now we'll get to see how Righthaven tries to tapdance around this issue.
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Filed Under: copyright
Companies: righthaven, stephens media
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So who is this lone holdout?
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Re: So who is this lone holdout?
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http://foarp.blogspot.com/2011/03/chris-devonshire-ellis-thug-and-liar.html
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That's not exactly my position. I think it's a gray area, and I can see it going either way. This post summarizes my thoughts succinctly: http://www.techdirt.com/articles/20110423/01033814013/another-judge-slams-righthaven-chilling-effect s-that-do-nothing-to-advance-copyright-acts-purpose.shtml#c1281
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In remedies I only see "Copyright Holder may", this isn't something you can just sign a Power of Attorney to I don't believe (I'm a computer repair shop owner in Marshall Texas, not a copyright lawyer).
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Righthaven holds the "rights" to litigate. Therefore the only way someone could infringe upon Righthaven's rights, is if they litigated in their place.
It's a legal paradox at worst and a sham at best.
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Righthaven holds more than just the right to sue. They are the legal owner of the copyrights. Yes, they granted an exclusive license of those copyrights, but such licensors still remain the legal owners of the copyrights they've licensed. An exclusive licensee does not get full ownership of the thing he's licensed.
It's like if you lease a house. Your lessor still owns the house even though you've leased it.
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So, while Righthaven may have all of the appropriate rights, if they are not in the business of selling and producing content, they cannot assert economic harm.
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Actually, on second thought, that would be a relative nullity, not an absolute nullity. Still, the sale could be rescinded.
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Wrong.
It is not like that at all.
This is like if I owned a house, went and found some lawyer, and wrote on a napkin that he owns the house. But in order to give him the napkin, I can live in it for free, do whatever I want with it, and can take back the napkin whenever I want. But the lawyer can go and sue anyone who takes a picture of the house (if I don't disagree) and anything he gets out of them I get half.
Actually, bad analogy. A napkin has some worth, if minimal. I can wipe my hands off after lunch with a napkin. "IP rights" aren't even good for wiping your ass.
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Why is this so hard for your to comprehend? Its is all about intent.
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You seem to be confused with the concept of possession or occupancy of a property with ownership, just because I lease my house does not mean I own the house or can make any changes to it. Further I can not sue someone over property rights, such as a neighbor attempting to build a fence 6 inches closer to the house I am leasing, because that right rests with the owner.
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The owner can allow you the right of use. That's what we're talking about. Happens all the time. I recently was granted the right to use a house, subject to a resolutory condition (someone's death).
I'm not at all confused about ownership and possession. Don't worry about that.
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No, we are truly talking about the right to sue not of use. This is the only right that Righthaven was granted, not to use the item in question to make money.
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Righthaven was transferred ownership of the copyright. And then, acting as owner, they granted an exclusive license to Stephens Media. Granting an exclusive license like that is something that only an owner could do.
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The problem here is that you still think of copyright as property.
It's not. It's merely the bundle of rights in 106. If you don't have those, you don't have anything.
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It's called intellectual property for a reason. As much as that kills you, it is a fact that it operates as property.
It's not. It's merely the bundle of rights in 106. If you don't have those, you don't have anything.
Nonsense. A person who grants an exclusive license does not give complete ownership to their licensee. That makes no sense, and I've already proved this in other threads by quoting circuit courts and treatises. The licensor still owns the thing he has licensed.
Do you really think exclusive licensees have complete ownership of the thing they've licensed? That's silly. That's not what a license is.
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Caution: may not come with an actual Landmark - the Intellectual Landmark has been copyrighted.
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Really? Please cite the section of copyright law in which it's referred to as "property."
Just because a group of propagandists claim something does not make it so, any more than copyright infringement actually occurs on the high seas by scruffy guys with beards and peg legs.
No, it absolutely does not. Mike is entirely correct, and you are making baseless claims. If you want to persist in this claim, cite the section of copyright law that says a copyright is to be treated as a property right.
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Whether or not the Copyright Act refers to it as "property" is irrelevant. It acts like property because it is property.
Property itself is just a bundle of rights. To say that copyright is not property is just silly.
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I already explained why - because propagandists want it so.
No, it doesn't - in any way, shape or form. Property is *by definition* exclusive. Only one person at a time can hold it. Property can be possessed. Copyright cannot be possessed - it is a legal manifestation of imagination.
It most certainly *CANNOT*. All these things are figments of your imagination, and the fact that you assert these fictions as if they were true shows that Mike is absolutely correct.
Copyright law is by definition what defines copyright. If copyright law does not say it's property, then by definition it is not property.
Ah, a tautology - how amusing.
No, to claim that it *is* property is just silly. As I said, copyright is defined by copyright law. If copyright law does not call it property, then it is not. Unless you can point to a copyright law that says otherwise, you lose.
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You sound like a conspiracy theorist. It's not a conspiracy. It's a simple fact. When you realize that property simply means ownership rights, it all makes sense.
No, it doesn't - in any way, shape or form. Property is *by definition* exclusive. Only one person at a time can hold it. Property can be possessed. Copyright cannot be possessed - it is a legal manifestation of imagination.
Property can be owned by more than one person at a time. Have you never heard of co-owners? Ownership between two or more owners can be joint or separate. This is basic property law 101 stuff.
Yes, property can be possessed. But the possessor is not necessarily the owner. If I loan you my car, you possess it, but you do not own it. You appear not to understand basics like the difference between possession and ownership. Of course these are legal constructs. This is so with all property laws, like copyright.
It most certainly *CANNOT*. All these things are figments of your imagination, and the fact that you assert these fictions as if they were true shows that Mike is absolutely correct.
Wow, you are out there. Property can't be owned? That makes no sense.
Copyright law is by definition what defines copyright. If copyright law does not say it's property, then by definition it is not property.
That's not how property works. You don't have to define something as property for it to be property. It just is property, by definition, because it is a thing susceptible of ownership.
Ah, a tautology - how amusing.
Copyrights acts like property because copyrights are property. It's that simple. You need to understand that property just means ownership rights.
No, to claim that it *is* property is just silly. As I said, copyright is defined by copyright law. If copyright law does not call it property, then it is not. Unless you can point to a copyright law that says otherwise, you lose.
Sorry, but you lose because it doesn't work that way. Copyrights are intangible property. It's axiomatic and by definition. I'm speaking legally of course because we're talking about the legal meanings of the words.
This need to argue that copyrights aren't property is quite amusing. Copyrights are property susceptible of ownership, this much is perfectly clear. Yes, ownership and rights are constructs of man. So what?
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So, this shows your complete lack of understanding of how scarcity (or lack thereof) changes everything.
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Secondly, property can be divided into one of two types: tangible and intangible. Both types are still property. From Black's: Intellectual property is just a type of intangible property. From Black's: Scarcity has nothing to do with it. Copyright is intangible property. Copyright is property. Property is rights. Copyrights are rights. There's really no debate on this point. The law doesn't limit the meaning of property to only tangible things.
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Re: Enough With The FUD, Buster!
And yet it is not “property”. Nowhere in copyright law is it referred to as “property”. The phrase “intellectual property” is not to be found in any law. Ergo, it is a term with no meaning in law. QED.
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That makes no sense. If there exist no law stating that hairbrushes are property, are hairbrushes then not property?
It's not property because some statute defines it as property. Property just means a bundle of rights. Copyright is a bundle of rights. It's really that simple.
You guys have a strange idea of what the word property means.
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Is the agreement RightHaven has with their clients. I'd like to direct you to Section 7.2.
Again you have an entity that only holds the "right to sue". And under current copyright law they can only request damages against THEIR rights (the right to sue). Even if they were granted an exclusive right to the copyright they would only be able to claim damages against infringement that occurs after they are granted their exclusive right. Since their business model is to be assigned "rights" after infringement occurs and a with a layman reading of the link I listed above: It appears they will be out any sort of damages thusfar, and their actual rights is a legal paradox (I retain the right to sue, therefore I can only claim damages against other people that sue for you).
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Righthaven still (1) is legal owner of the copyrights, and (2) holds the accreted right to sue for infringements that happened BEFORE they became legal owner of the copyrights. For standing purposes, this is what they need. As transferee, Righthaven is standing in the shoes of their transferor, Stephens Media.
My understanding is that Righthaven can ONLY sue for infringement that occurred prior to them obtaining ownership of the copyrights. Since they've granted Stephens Media an exclusive license, only Stephens Media would have standing for subsequent infringements.
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What rights do they have? Please enumerate which ones you believe that contract grants them. Bonus points if you cite paragraphs and sections.
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It's not like buying a house. It's more like leasing a baseball batt to a thug so they can beat my enemies with it.
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Of all the analogies that get thrown around on this topic, I think this is my favorite so far. ;)
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Okay, I know I shouldn't be responding to you, but this is just too much to pass up.
First of all, comparing a copyright to a house is a crappy analogy (the rights associated with ownership are very different). But for the moment, let's go with it.
A "lease" is not akin to an exclusive license. A "lease" is akin to a non-exclusive license. A better analogy for an "exclusive license" would be buying a condominium. Yes, you can buy a condo without buying the entire building, but that doesn't mean you don't own the condo.
Further complicating matters is that, in the context of this analogy, a "building" is defined solely as "a collection of condominiums." (It's even more complicated than that, because ownership of a copyright can effectively be divided infinitely, meaning you could transfer ownership even of a single bedroom in a condo.)
What Righthaven is doing is saying, "Hey, Mr. Building Owner, you say we're the owner of the building, but you'll retain ownership of every condo. All we ask in return is that you let us kick out the current tenants and keep all their stuff." Even if that somehow worked with "real property," it wouldn't work with "copyright property."
Complicating matters even further is the fact that if you're the original owner of a building, you can take ownership of that building back after 35 years. And the fact that "ownership" of that building was created for the sole purpose of public use of that building.
Like I said, it's a crappy analogy.
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Fair is fair, though. If we were talking about patents, you'd be entirely correct. Exclusive licensees of patents are not the "patent owner" in any sense of the term.
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I understand you focus on just the legal arguments, but that is a clinical and ultimately insufficient way to analyze legal disputes. Ethics, congressional intent, etc. are all very much part of the legal system and key elements in determining outcomes.
So effectively, your prior response is, "outcome uncertain" rather than an insightful analysis of the specific issues at hand and that is why you aren't getting any love from the audience here.
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It would be fantastic if that was a consideration for patent aggregators as well--can't sue unless you're in the space competing.
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http://www.law.cornell.edu/uscode/17/504.html
Covers the actual owner that has been harmed by the "infringement".
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Lets use your specious Home argument from earlier. If someone owns a house and the neighbor chops down the tree in the front yard, then the owner sells the house to me (without any limiting provisions to make it simple) I do not have any right to sue the neighbor over the cut down tree because it did not happen to me.
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licensor: Someone that can license, or someone that that is licensed to?
The contract quite clearly dictates that Righthaven cannot extend a license to anyone else. So they fail that.
They also are quite clearly not licensed any of 106 rights, and since those are the "bundle of rights" (and only valid rights of copyright, according to copyright law, and various case law) I don't see how they muster this either.
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Righthaven granted a license to Stephens Media. Since it was exclusive, that means Righthaven may not also grant a license of that same right to another party.
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Silvers v. Sony Pictures Entertainment, 402 F.3d 881 (2005), says that you need to assign a specific right under 17 U.S.C. § 106 – and not the bare right to sue – for a copyright assignment to be valid.
More specifically it says:
Then you always have the Sybersound ruling.
"You have to have the exclusive right to the copyright to be able to sue"
I believe that is enough caselaw to be satisfactory, if not I can look some more but I'll stop here.
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Look at the entire Stategic Alliance Agreement and the individual assignments. They specifically say that Righthaven gets ownership of the copyrights.
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So, again, we have the situation where caselaw says you can't do X. So Stephens does Y, and Righthaven does Z. Y + Z = X.
Let's try something else. Since Righthaven is the owner, then I'm sure they would have no difficulty whatsoever in showing specific and explicit proof of where Righthaven has suffered economic loss. They could show where they tried to license the work and no one would buy... wait, Stephens has all the exclusive licenses. They could show where their attempts to exploit the work went poorly... wait, they don't exploit it, Stephens does.
And that leads us to...
Look at the entire Stategic Alliance Agreement and the individual assignments. They specifically say that Righthaven gets ownership of the copyrights.
Just because something is written on pretty paper with fancy letters doesn't change what is true. I imagine that's kinda scary to a lawyer. Tough. All the contracts that Righthaven and Stephens Media can dream up won't help them if they are founded on a fraud. Stephens is the real owner of the (worthless) rights, not Righthaven.
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You've made the claim they hold full exclusive rights to the copyright and thus have full rights to sue.
I've linked the strategic agreement and cited they they simply the right to recovery (right to sue).
You claimed otherwise, without supporting your argument.
I asked you to support your argument, you failed to do so by simply stating "you have to read the entire thing". Sorry that's not a citation.
You later claimed while holding the stance that they hold full exclusive rights that your detractors had not listed caselaw.
Fair enough, I listed case law maintaining the prevailing argument that they do not hold exclusive rights.
You ignored the fact you have failed to support your argument that they hold exclusive rights, and concluded that the case law does not apply.
Upon your return if you wish to continue this discussion please support your argument that they hold exclusive rights. Otherwise I consider it a forfeit on your part.
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Please show which right under 17 U.S.C. § 106, Righthaven currently holds.
Your reference for this is the contract
If you cannot than Silvers v. Sony Pictures Entertainment, 402 F.3d 881 (2005) applies.
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LOL! Give me a break. I had a job interview earlier today for a summer position, and now I'm working on a big assignment that is due tomorrow. I'd love to answer each and every question in this thread, but I'm simply pressed for time today. Much of these questions I've addressed already. I've gone into great detail about exactly what my arguments are. Look through my posting history and you can read it for yourself.
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Now lets step through the agreement shall we?
Now if we stopped there and ignored Section 7 you would have your case, and I'd tip my had to you, the Bold portions agree with you. However in italics above modifies the entire thing so lets stop there and go straight to Section 7...
Okay, nothing really there, just a bunch of administrative dealings that say how it is done. That the entire copyright is assigned to Righthaven, so far, it appears you are correct.
Woah woah woah, big monkey wrench. If it "retains" rights, it's not a copyright assignment. Now if it was simply licensed those rights, fine. However it goes further, RightHaven is to not have any of those rights (which the crux of my argument and yours rest upon, which 106 rights does righthaven actually have? In my view, they hold none. In your view it appears they retain them all despite what the contract says in clear language saying the other.)
So again, which rights do you see here that RightHaven has? 7.2 says that RightHaven shall have no rights "...other than the right to proceeds in association with a Recovery."
Quite plainly the case is thus.
1.) If Righthaven does not produce a rights assignement they hold no rights (not even the right to sue).
2.) If Righthaven does produce a rights assignement it's up to the courts to find if Righthaven has any 106 rights and if not will probably look to Silvers v. Sony Pictures
Entm’t, Inc., 402 F.3d 881, 884 (9th Cir. 2005). My stance is that they do not hold 106 in accordance with the clear language above.
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You're hanging your hat on the word "retain." I've explained this in other threads already, but I agree that the word is poorly chosen. The rights are not technically retained. Looking at the phrase directly after, it states, "retain (and is hereby granted by Righthaven)." To me, that clearly means that Righthaven granted Stephens those rights, not that Stephens Media retained them. The net result is that Stephens Media retained them, but technically, ownership changed hands and the rights were licensed to Stephens Media by Righthaven. I don't think a court will look at the unfortunate choice of wording, "retain," and give it much pause once they take a step back and read the whole sentence.
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No, but like you I picked up on that being a poor word, it merely supports my argument. Or it could have been purposeful, I don't know.
But in the very next sentence Righthaven is stripped of all rights, save the right to sue. This is what my had actually hangs on (also yours, though you claim it means otherwise.)
What 106 rights does righthaven have? According to 7.2 they retain none of them.
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Again Exhibit A is an example of one, you must also show which copyright you are assigning rights to (I believe).
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Righthaven is stripped of the rights in the sense that they granted an exclusive license of those rights. But keep in mind that the licensor doesn't give his licensee complete ownership. That means that Righthaven kept ownership even though it granted an exclusive license.
Again, Righthaven has all of the 106 rights, as owner.
It's very analogous to when you lease a house. As a lessee, you have the right to use and enjoy the property, but technically you don't own it. A license is like a lease in that full ownership does not change hands.
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This is simply not analogous at all. When you lease a house, there are numerous things that you can and are leasing.
When you deal with copyright there are the limited rights under section 106.
That's the problem. You still can't point to a SINGLE right that Righthaven has EVER held under Section 106. Because there are none. And that's where your argument falls entirely apart.
As has been explained to you. Over and over again.
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The analogy, as I carefully tried to explain so it wouldn't go over your head, is that like a lessor, a licensor does not give total ownership to the person he grants a license to. Pointing out the differences between a lease and a license is stupid, since I was using the analogy for its similarity as to how ownership does not pass. Does a lessee have complete ownership of the thing he leases? No. Does a licensee have complete ownership of the thing he licenses? No. The analogy is spot on.
When you deal with copyright there are the limited rights under section 106.
Yes.
That's the problem. You still can't point to a SINGLE right that Righthaven has EVER held under Section 106. Because there are none. And that's where your argument falls entirely apart.
You're going to have to do better than that. As I have proved pointing to caselaw and treatises, a licensee does not obtain complete ownership of the thing he licenses. Just like the lessee of a house, a licensee doesn't truly have complete ownership of the thing he licenses. Remarkably, you have shown nothing to rebut the evidence on this point that I have produced. Nor can you, I suppose.
As has been explained to you. Over and over again.
Considering that you don't seem to understand what a license is, much less what even property is, perhaps you aren't the one to be explaining this to me.
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Righthaven owns the copyright.
Righthaven gave exclusive rights (ALL rights) to Stephens Media.
You need to have those rights to sue.
Righthaven cannot exercise those rights since they licensed them away, thus they have no standing to bring suit.
That about sum it all up?
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Says the Second Circuit: Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001).
Translation: an exclusive licensee does not own the copyright he licenses.
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Anyone else take contract law?
Even going so far as acknowledging the written agreements in parts state transfer of some "copyright rights" to Righthaven, if you consider the entire SUBSTANCE of the arrangement here, what consideration has Stephens' given in this bargain? I.e., what have they really has given up (besides their sense of decency )?
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Again you can't call it a lease, yeah it fits, but not perfectly. A lease grants some other rights and responsibilities where as copyright is quite literally JUST the 106 rights. Nothing more, nothing less. If you tried to shoehorn the house into it, it would be more like "selling" your house to a guy, who then tells you to live in it for free, just keep it up like you have been doing and pay the taxes on it. The guy you sold the house to only retains the right to sue if someone breaks in. The problem since he's not the one living in the house there is a specific law that says he can't sue since he isn't the damaged individual since the original owner is the one living in the house.
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RIghthaven
Answer a simple question for me that should put the issue to rest. Under what circumstances would you consider the assignment from SM to Righthaven to be a sham? What would you want to see before acknowledging that the entire deal is structured to "illegally" evade the confines of the Copyright Act.
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Re: RIghthaven
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I submit the reason why you don't want to answer is because every possible "sham" scenario would implicate this assignment.
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Find somebody else to play with. This is boring.
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Mike: Copyright isn't property. Copyright is a bundle of rights.
Law Dictionary: Property is a bundle of rights.
The Universe: Crickets.
LMFAO!
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There are fundamental differences, and to ignore those differences simply because Blacks calls it one of the definitions of property is an error and omission on your part.
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http://blog.ericgoldman.org/archives/2011/another_defense.htm
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http://blog.ericgoldman.org/archives/2011/05/another_defense.htm
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