Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions
from the huge-win dept
In a huge victory against copyright trolls, a judge has thrown out the lawsuit filed by Righthaven against Democratic Underground. This was the key case where (after lots of stalling), Righthaven eventually revealed the strategic agreement between it and Stephens Media, which basically shows the copyright assignment to Righthaven was a fraud. All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law. As we had expected, the judge relies on the Silvers vs. Sony Pictures case, which notes that you can't assign just the right to sue.Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment.That's the basics. As the court digs into the details, it becomes clear that the judge is monumentally not impressed by the arguments from Righthaven and Stephens Media. A couple of choice quotes:
This conclusion is flagrantly false—to the point that the claim is disingenuous, if not outright deceitful.Towards the end, the judge unloads on Righthaven's attempt to claim that because earlier rulings by the same court had been okay with its standing, there was some sort of precedent:
The companies’ current attempt to reinterpret the plain language of their agreement changes nothing. In reality, Righthaven actually left the transaction with nothing more than a fabrication...
Righthaven argues that Section 15.1 of the SAA gives the Court authority to correct any provision of the SAA that is deemed void or unenforceable to approximate the manifest intent of the parties. The problem is that this argument requires a provision of the SAA to be void or unenforceable. However, Righthaven’s problem is not that any provision of the SAA is void or unenforceable but that the SAA simply does not grant Righthaven any of the exclusive rights defined in Section 106 of the Act required for standing. Therefore, the SAA is not void or unenforceable, it merely prevents Righthaven from obtaining standing to sue from the Assignment. Accordingly, the Court need not and shall not amend or reinterpret the SAA to suit Righthaven’s current desires...
Here, Righthaven does not ask the Court to recognize an oral transfer with a late made written memorandum of the deal, but to fundamentally rewrite the agreement between Righthaven and Stephens Media to grant Righthaven rights that it never actually received...
Finally, Righthaven contends that multiple courts within this district have already determined that Righthaven has standing to bring claims for past infringement under the Silver standard based on the plain language of the copyright assignment. At best, this argument is disingenuous. As the undersigned issued one of the orders Righthaven cites for this argument, the undersigned is well aware that Righthaven led the district judges of this district to believe that it was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the true nature of the transaction by disclosing the SAA or Stephens Media’s pecuniary interests. As the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually transferring them to Righthaven regardless of Righthaven’s and Stephens Media’s current contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of interested parties, despite Stephens Media’s right to proceeds from these lawsuits...As for that last point, it may open up Righthaven to a world of hurt. The judge notes that it appears Righthaven violated the law here and gives the company two weeks to explain why it shouldn't face sanctions not just for the failure to disclose in this case, but in all of its cases:
As shown in the preceding pages, the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will only focus on the most factually brazen: Righthaven’s failure to disclose Stephens Media as an interested party in Righthaven’s Certificate of Interested Parties. (Dkt. #5.) Rule 7.1-1 of the Local Rules of Practice for the District of Nevada requires parties to disclose “all persons, associations of persons, firms, partnerships or corporations (including parent corporations) which have a direct, pecuniary interest in the outcome of the case.” This Local Rule requires greater disclosure than Federal Rule 7.1, which only requires non-governmental corporate parties to disclose parent corporations or corporations owning more than 10% of the party’s stock. Frankly, if receiving 50% of litigation proceeds minus costs (Dkt. #79, SAA Section 5) does not create a pecuniary interest under Local Rule 7.1-1, the Court isn’t sure what would.I would suggest that judge Roger Hunt is not particularly pleased with Righthaven. He's also allowing Democratic Underground lawyers to seek attorneys' fees from Righthaven and Stephens Media.
Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2) weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the Court.
This will likely kill off most of the remaining Righthaven cases in Nevada. While not all are handled by Judge Hunt, you can be quite certain that all the other judges in the court will be aware of this. The impact on the Colorado cases isn't as certain, but all of those cases are under a single judge who is equally upset at Righthaven, and reviewing similar issues. I wouldn't be surprised to see a similar end result.
Righthaven could (and might?) appeal, but it's going to be difficult to reverse this. Furthermore, in theory Righthaven could come up with a new agreement with Stephens Media and continue suing, but the court already expressed its doubts about the weak attempt by the two companies to "amend" the existing agreement, suggesting that it was just "cosmetic adjustments" that the court did not believe would change the outcome.
What may be interesting is to see if any of the dozens of folks who already settled come after Righthaven now and demand their money back... That could make for an interesting followup legal battle. All in all, this is a huge win against copyright trolling.
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Filed Under: assignment, copyright, sanctions, sham
Companies: democratic underground, eff, righthaven, stephens media
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Why do you support taking the caviar from the mouths of their children?
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How does this differ...
shake people down without any actual standing for suit so that they could outwrest money by way of settlement, I think more than civil sanctions may be in order.
I'm hoping the judge will at least raise the question to a DA regarding the possibility of civil charges for extortion.
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Re: How does this differ...
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RIghthaven
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Re: RIghthaven
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I think it's only reasonable to point out that in the last thread, Karl also pointed out his opinion, in which he thought you got it wrong. And in this case, the judge agreed with Karl. And yet, you accused him of all sorts of nastyness for his opinion.
So it seems a bit rich for you to now complain about others doing the same to you.
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Ha.
I wonder if FUDbuster (or whatever he's calling himself these days) will come back and apologize?
Somehow, I doubt it.
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Re: Ha.
Of course, he'd only do that if they dropped their attitude. Otherwise he'd just call them clueless.
That's just a guess, though. I *can* say with certitude that he's not out somewhere taking the attitude that he's completely right, because that would make him look like a fool were he ever to be proven wrong, he doesn't like it when people are 100% wrong while insisting they are 100% right. He doesn't play that game.
I could go on, but if I keep adding links I might get snared by the spam filter. Plus, it's too easy. ;)
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I'll admit, I was wrong about certain things on that thread. For example, you can sue for infringements that happened before you acquired the copyright (though it has to be granted in the transfer). Also, exclusive licensees do not automatically get the right to resell that licence, which I didn't know.
But the main points turned out to be pretty accurate. Honestly, I have no idea where all his "title" talk came from. Copyright mainly deals with "legal owners" and "beneficial owners." Righthaven is neither, and never was.
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Re: Ha.
I do apologize for saying mean things to you, Karl. I shouldn't let my emotions get the best of me like that. I'm trying to be better than that. I really do like you personally. I think your analysis is terrible most of the time, but that's got nothing to do with what I think about you. I'm sorry I've been such an asshole.
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Re: Re: Ha.
At the very least, I think it's only fair that you don't just apologize for the assholish nature of the comments, but for insisting that Karl didn't understand what he was talking about, when it appears that the judge found the same arguments that Karl made persuasive.
You can disagree with the judge and Karl -- as you do -- but you insisted that only a "fool" who was ignorant could make such statements. I think, at the very least, you have to admit that reasonable minds might disagree there, and that Karl's analysis wasn't "foolish" it just disagreed with your own.
Amusingly, now, in this thread, you find yourself making the same statements, condemning people for insulting you while saying you are just stating an opinion. Yet, when Karl did the same, and did so with incredibly well cited and backed up arguments, you attacked him.
I think you owe him a much bigger apology than for being an asshole. I think you should admit that you were wrong in what you said about him.
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I have asked people on both sides of the issue who I believe say things that are improper to apologize.
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When he walks down public streets, anonymous children will point and laugh at him for the climbdown he had to, but didn't make.
Let him have some shred of his anonymous dignity.
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Re: Re: Re: Re: Re: Re: Re: Re: Ha.
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When? Where? Please provide links. Please prove this.
I've been called names in this thread. Why haven't you said anything about it?
What about all the other threads where poster after poster abuses me? Why don't you say anything to them?
Why the double standard, Mike? Do I really threaten you so?
Seriously, let's talk about this.
I'm sick of being treated like shit. It's fucking ridiculous that you don't do anything about it.
Please explain yourself.
Can you admit to a HUGE DOUBLE STANDARD?
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Regardless, the issue is that you appear to be purposefully relying upon an earlier, and since revised, ruling, and when that is pointed out, you attempt a topic change. This does not look good for your arguments.
(Also, yeesh. Hope you don't play any competitive online games, because anything here would hardly warrant being called a warmup for some of those, ahem, 'discussions'...)
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Re: Re: Re: Re: Re: Re: Re: Re: Ha.
Look, I'm on lots of boards, and nowhere do I get constantly abused like I do here. Mike could set the tone and set a good example, but he doesn't. I run my own message board with many active users. Never does anyone treat people like they do here. Why? Because I set an example and I won't stand for it. I don't think I've moderated a post there in years. I haven't needed to. It makes no sense to me the way I'm treated here. I've been put down and called everything under the sun. Sometimes I react badly. I'm only human. But at least I apologize for my bad behavior.
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Constructive criticism
You've grown up a lot since those times, but I still think you bring a lot of the unnecessary woes upon yourself. I recall when one of the people answered a question about how Thomas Jefferson wasn't a huge fan of copyright law, the ending really set you off to that anonymous' well thought out post. Out of all of it, you spun it into a "poor me" tale instead of ignoring that and discussing the merits of what the post had.
That was a bad mistake on your part. You still tend to dig into your views and even though you don't agree with Karl, it's rather frustrating to others around here when you want to dismiss aspects of a case or look into small minutiae details that seem largely irrelevant to what's actually going on.
You still have a ways to go. But it's noted that some of it comes to how you treat other humans in your debates.
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The guy gives a sincere apology and you just refuse to accept it?
When have you ever apologized for (or acknowledged) being wrong or deceptive?
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Quite frequently. When you write as much as I do, it's no surprise that I get things wrong -- frequently. And when that happens I apologize and admit that I was wrong.
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In my time reading your site, it seems you just ignore mistakes pointed out by "the other side."
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Well, apology accepted. I'm pleasantly surprised that I'm getting one. Thanks.
I think it might be better, however, if you rethink your attitude that you know the law better than everyone else here. It's pretty obvious that you were wrong on this particular point, and it isn't the first time.
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Glyn Moody AGAIN !!!!! (the puppet master ?)
... oh, wait ...
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Re: Glyn Moody AGAIN !!!!! (the puppet master ?)
Can't you educate us about copyright law? How the judge is ignorant of how copyright trolling is supposed to work? How the judiciary's purpose is to support dead business models that supplement their decreasing income with new extortion litigation threat shakedown rackets?
Oh, please tell!
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Infringement, big deal, with steep penalties.
The laws that protect the rich carry steeper penalties than the laws that protect the public.
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> attorneys who knowingly filed false affidavits?
Be patient. Let everything be done decently and in order.
He has given them two weeks to explain why they should not be sanctioned.
That filing should be quite the Lulz. I sure hope TD covers that filing.
Then the judge can respond to the filing, and possibly sanction the parties and/or their representation.
Ideally he will turn RightHaven into a smoking crater to serve as an example to future would be copyright trolls. In order to set proper precedent he needs to address not just the misconduct of RightHaven and its lawyers, but also the practice of copyright extortion shakedown rackets.
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Quote for truth
The cloud that looms like clouds along the distant shore.
I was nodding, not quite napping, holding covers closer, wrap, wrap, wrapping.
Go to a keyboard, with a tap, tap, tapping, facing my chamber door.
I glanced on the internet for the Righthaven score.
I search for their stories, nothing more.
I read the stories from December, about seizures I can't quite remember...
Along with lawsuits that brought tears galore.
Such was the likes of Righthaven, even FUDBuster, who thought himself a maven,
"This suing potential does not need savin'!", tapping, tapping near my chamber door.
"Tis the truth, Sirrah." he implored. "The truth and nothing more!"
Ah, distinctly I remember, Righthaven lawsuits in November.
Their business model was weakening, bleeding on the floor.
Eagerly they wished for tomorrow, to extend their distasteful sorrow,
intent, now intent on reaching for the door.
The storm clouds reached for the shore,
Righthaven had determination, it seemed, forever more.
But as we see it merrily true, their model of business is run through.
Their model lays skewered, impaled as if by a boar.
"Ah sirrah, you are mistaken, here you are, have more bacon,
The route you have undertaken, Lies broken like a ship on the shore.
Your business model and intimidation are no more.
And so, like the Raven, of Poe's lore, I say and quote...
Nevermore"
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I wonder what you'll turn into this time...
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The really fun thing about the end-around tactics they've used is that it's precisely these tactics that have kept them from getting the court to amend the SAA in their favor. This because none of the backwardized terms are actually void or unenforceable such that the court could strike or amend one or more of them, rather in whole, they just render the outcome effectively meaningless as to standing. It's really kinda poetic.
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I think you're focusing too much on form without giving any regard to substance of the agreement. Sure, the SAA states Righthaven took ownership and then licensed it back to Stephens. I don't see how this can be denied going by the bare language of the contract.
But from a practical standpoint, that language is just fluff. It's an attempt to let Righthaven sue without really taking ownership. In reality, the agreement operated to do nothing more than give Righthaven the right to sue. It's disingenuous to pretend that those clauses in the SAA gave Righthaven anything else. The judge thankfully saw through it.
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That may be obvious to you and me, but the judge here didn't seem to think it was so. I really think this judge was pissed and looking for a reason to deny Righthaven standing. The poor choice of wording, "retain," gave this judge something to hang his hat on. It was some weak reasoning by the judge, and the fact that he didn't even try and explain away the "and is hereby granted by Righthaven" part is telling.
But from a practical standpoint, that language is just fluff. It's an attempt to let Righthaven sue without really taking ownership. In reality, the agreement operated to do nothing more than give Righthaven the right to sue. It's disingenuous to pretend that those clauses in the SAA gave Righthaven anything else. The judge thankfully saw through it.
I disagree. I think the SAA was what it purported to be. Ownership transferred to Righthaven and Stephens was the exclusive licensee. Other agreements were made. Of course it was for the purpose of allowing Righthaven to sue, but it did so precisely by giving Righthaven ownership. I don't think the judge saw through it, he just saw one sloppy word choice and decided to hinge his opinion on it. Of course, he had to take that word out of context to be able to do this. That's not right.
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Re: RIghthaven
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C'mon, really? I'll give you credit for apologizing to Karl above, but you're just being willfully blind on this point. Reality is reality, no matter what some legal document claims.
It is abundantly clear that Stephens Media never had the slightest intention of allowing Righthaven to have anything other than a "right to sue." That's why "retain" was used. That's why S.M. had the ability to reclaim any copyright at any time for any reason. The judge clearly saw it for the sham it is.
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Did you actually read the article? The right to sue is NOT transferable as you just claimed....
"Silvers vs. Sony Pictures case, which notes that you can't assign just the right to sue"
Copyright law and legal precedent say one thing, and yet you still claim the other, so which one is right?
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"Silvers vs. Sony Pictures case, which notes that you can't assign just the right to sue"
Copyright law and legal precedent say one thing, and yet you still claim the other, so which one is right?
I believe that Mike is misreading/mistating Silvers. The right to sue is transferable. There is no question about that. Silvers only said that in order to exercise that right, the underlying 106 right that was infringed upon must also be transferred.
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Righthaven
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Re: Righthaven
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If you don't actually have the exclusive right, you can't sue for violation of that right. That is the point of Silvers.
Some concept of "ownership" WITHOUT any exclusive rights does not give you the right to sue for violation of those rights.
The right and the suit for violation of the right shall not be rent asunder, for ever and ever, amen.
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And you appear to be (deliberately?) misreading what I said: "you can't assign just the right to sue." You seem to have ignored the "just" in a weak attempt to get a dig in.
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Mike's statement made it sound like the right to sue isn't transferable under any condition. That's simply not true. His exact words were: "All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law." I believe that statement is not true.
I'm also saying that you can assign the right to sue without the other right. I read that somewhere, but I don't remember where. I believe it was in Nimmer's treatise, but I could be mistaken. Where that might come up would be if a copyright holder sues you for infringement. If you can show that that copyright holder transferred his right to sue you to another, you could avoid liability.
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That seems like an odd paradox: They have an exclusive right, but they can't sue you and nobody else can either for violatio of that right.
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You're correct here. My wording was not clear. I meant that that, alone, is not a transferable right. Sorry (see?).
I'm also saying that you can assign the right to sue without the other right.
But that's what pretty much everyone disagrees with you on. Including the judge.
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tytyty
:)
Now let's all hold hands and sing Kumbayah!
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You cannot. That is exactly what Silver determined (taking cues from previous case law... which I linked to in that other thread, by the way).
You can transfer nothing without also transferring control of one of the rights in 106. That is the entire point.
Now, the right to sue for past infringements can be transferred, as long as you're also transferring control of one of the 106 rights. However, they're not transferred automatically.
Perhaps that's what you're thinking of? It was a point I was wrong about in the other thread.
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*If not you're more than welcome to search it out and see what I said to someone else.
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As I stated above, I believe you can transfer only the right to sue. That transferee can't exercise that right unless you also transfer the underlying 106 right. Your exact statement was: "All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law." I believe that statement is inaccurate. The right to sue is a transferable right. The right to sue is often transferred. I'm not "digging in," I'm simply pointing out that I believe your statement was incorrect.
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Is a right that cannot be exercised really something that can be transferred? The transferee is the proud owner of absolutely nothing.
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Whether you nitpick the details or not, if you have an ounce of humanity in you, then you'll agree that the outcome was the right one.
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There's really nothing left.
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No, he did not. The judge -- properly -- noted that the overall contract made it clear that the 106 rights were never transferred. The only one taking things out of context appear to be you.
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And that is where I disagree with the judge. I'm just repeating myself at this point, but I believe that the 106 rights were transferred to Righthaven, and then Righthaven granted an exclusive license of those rights back to Stephens. The judge looked at the end result--who had what once everything was done. I do not believe that is the proper way to look at it since it overlooks the fact that Stephens only had those rights as an exclusive licensee and not as an owner. The owner was Righthaven. As I've discussed in detail before, the owner who grants an exclusive license of a 106 right is still the owner of that right. The exclusive licensee is not. But, for purposes of the Copyright Act, that exclusive licensee is treated as the owner for certain purposes.
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I believe that you are misinterpreting Copyright law in general here, in part because of the mistaken use of "intellectual property," such that you think copyright is property separate from the rights associated with it. It is not.
In this case, as pretty much everyone notes, Righthaven in no way was the owner of those rights. It never had any of the section 106 rights at all. It never had any ability to make use of them in anyway. And without that, you don't have the copyright, and you don't have the right to sue.
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I don't think that. I think incorporeal property means simply rights. The copyright rights are the rights. Intellectual property is just rights. Property for that matter is just rights. But I also think that ownership of copyright rights can be dismembered such that the owner of a right can grant an exclusive license of that right to another while retaining ownership of that right. I quoted the Second Circuit in the other thread we were talking about this stuff in saying just that.
In this case, as pretty much everyone notes, Righthaven in no way was the owner of those rights. It never had any of the section 106 rights at all. It never had any ability to make use of them in anyway. And without that, you don't have the copyright, and you don't have the right to sue.
And I disagree. How else could Righthaven grant an exclusive license of those rights unless they owned them in the first instance?
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But what does that mean? How do you "own" a right you cannot exercise? If you have some right of reversion or some other interest, that's one thing, but nothing like that was the case here, from my recollection.
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From the Second Circuit:
Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001)(bolding mine).
There you go. The exclusive licensee is not the owner. His licensor is.
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That was from the original ruling. You should also read 283 F.3d 502,a clarification of that ruling by the same court, talking about exactly this issue:
As a result, the part you're quoting was actually removed from the decision.
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Am I missing something here? You point to a specific ruling, insisting that it proves your argument correct. Karl then points to a ruling in a rehearing of that same case in which they clarify what they meant, admit that they got the very part you quoted wrong and say that they're removing the part of the earlier decision that you relied on... and your response is "it's not really relevant here"?
How is it possibly not relevant? It says that the very thing you're relying on has been removed from that ruling.
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Seriously Mike. Can you admit that you hold me to an INCREDIBLY higher standard than you do anyone else, especially people who agree with you? Do you really not see it?
I'll answer your question when you answer mine.
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What is really being said here, as far as any neutral or opposed readers are concerned is that you have lost the argument again and again simply ignore that and wish to continue.
Feel free, carry on, but that is a very quick way to make yourself an irrelevance to anyone.
Nothing will change your mind, you might as well be arguing about a young earth, creationism, alien abductions, or faked moon landings.
The only thing any rational person can do now, is ignore you.
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What I would really like to know from Mike is why I'm held to an incredibly high standard while others who act way worse than me are held to no standard. The obvious answer is that Mike doesn't care what people do or how they act as long as they agree with Mike. But someone like me who disagrees with him is put under a microscope. The fact is, many regular posters here act like complete assholes to me, and Mike never says a word. The double standard is obvious. And sad.
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Give this childish footstomping a rest already.
1. The vast majority of people who engage with you have done so seriously and provided responses on the issues. You're the one who's constantly whining.
2. Yes, some people are giving you a hard time because you got this one so completely wrong and were so insistent that people who got it right were idiots last time around. I find it funny that you can't take it.
3. Yes, there are some people who say mean things online. You being one of them. In fact, you're worse than most. So stop making it out like your little miss sensitive.
It seems like every time there's a thread where you can't support your position, you start this footstomping thing. Stop it.
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Not true. I'm abused if I say one thing that the herd disagrees with. I'm abused even if I back up my assertion with reasons and authority. The abusers are never asked to back up their arguments. Are you pretending that your loyal core followers aren't extremely abusive to opposing points of view?
2. Yes, some people are giving you a hard time because you got this one so completely wrong and were so insistent that people who got it right were idiots last time around. I find it funny that you can't take it.
I'm not talking about this thread specifically. This thread's actually been unusually productive. If I'm wrong, I admit it. I think I'm right here. You disagree. So what?
3. Yes, there are some people who say mean things online. You being one of them. In fact, you're worse than most. So stop making it out like your little miss sensitive.
Absolute bullshit. Your core herd are far more abrasive with alarming regularity. Shame on you for fostering this environment.
It seems like every time there's a thread where you can't support your position, you start this footstomping thing. Stop it.
I love being proved wrong. It means I had something wrong and someone's corrected me. How about you give the whining about everything that has to do with IP a rest? How about you actually give unbiased analysis of an issue for a change and stop working backwards all the time? How about when I call you out for be completely wrong, which I've done numerous times, you admit that you were wrong.
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If by "abused" you mean challenged (sometimes with bad language), then sure. But that's not the definition of abused that anyone else seems to use.
And, seriously. you use much worse language on a regular basis than almost everyone who is challenging you.
Drop the little miss sensitive schtick.
Are you pretending that your loyal core followers aren't extremely abusive to opposing points of view?
As I said, there are lots of people who visit this site who have all different opinions. And if they disagree with what people have said, they'll challenge them. They'll challenge me as well. That's part of the discussion.
The only person who seems to get all worked up about being challenged is you.
And, honestly, for someone who has called me a "fucking asshole" multiple times as well as suggested that I am mentally handicapped, I find it laughable that you think others "abuse" you for challenging you and occasionally saying mean things.
Absolute bullshit. Your core herd are far more abrasive with alarming regularity. Shame on you for fostering this environment.
You have an amazing blindness for your own use of bad language. It's hilarious. Do you really want me to start pointing you to stuff that you've said about me specifically?
It's nothing compared to the "abuse" that you've taken. What "abuse"? Some people say you shouldn't be a lawyer? Honestly, given your temper tantrums, I think they have a point. That's not "abuse" that's career advice. Someone calling you a troll? Yeah, it's silly, but it's an internet forum. People call each other trolls all the time. You, in this very thread, called people who agree with me trolls.
That's not abuse. That's people disagreeing with you in the *same manner that you disagree with people*.
Seriously. Look in the mirror.
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Do you really want me to start pointing you to stuff that you've said about me specifically?
I'll start bookmarking all the times people call you out for being completely wrong where you don't admit it or you just run away and don't come back. That way, when you pull it this again, I'll pull out that. Sound good?
I know it's important for you to take me down a notch whenever you can. I'm flattered.
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If you have an issue with the tone around here, there's something you yourself can do to fix it: go away.
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Careful now. I'm not sure his sarcasm/abuse sensors are properly calibrated, so you've now been added to his big list of "abusers," meaning that I'm a liar for saying there were only one or two. You make it three.
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How many thousands of times have I called someone out on something and they run away and never address the issue? Too many to count. Heck, I've called out Mike probably a hundred times and he just disappears with no explanation. But are you there demanding that they answer the question? No. It's really, really, really ridiculous.
The techdirt theme seems to be that if someone says something you like, they are of course correct, no matter if they don't back up anything that they're saying. But if someone says something you don't like, that person must prove every last detail beyond a reasonable doubt. It's just stupid.
I've proved myself over and over and over, but you give me zero credibility. Sorry to say it, AC, but the lack of credibility is yours, not mine.
I doubt Mike will come back and explain or even admit this incredible double standard. He's all too ready to provide links to anywhere where I've been an ass, but he never offers to provide links for where others have been ten times worse. And you know examples of that are a thousand-fold more easy to find.
Can you guys really not stand it when someone believes something different than you? It's really sad that a simple dissenting opinion threatens you so.
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FFS!
" I go to great lengths to explain myself and to back up my arguments. More so than most, if not all, other posters."
You put up a lot of information but once someone says something you don't like, you try your very best to discredit them and their position. You just went off on a woefully bad tangent and derailed yet another argument for your pity party.
"How many thousands of times have I called someone out on something and they run away and never address the issue? "
And how many times has someone (such as me) went into a thread, debated with you and you disappeared, not addressing the issues that came up? This site is not all about you
"The techdirt theme seems to be that if someone says something you like, they are of course correct, no matter if they don't back up anything that they're saying."
Karl has admitted errors. You fail to do so. He seems to be the bigger man at this current time. Grow up
"I've proved myself over and over and over, but you give me zero credibility."
Respect is not given, it's earned. You should know this. In order for a community to respect you, you should learn how to respect that community
"Can you guys really not stand it when someone believes something different than you?"
Dude, you're expressing yourself. But you need to learn the consequences of your own actions. If you act like a self centered jackass, expect people to tell you so. The debate was going quite well until Mike (very reasonably) asked you to clarify your position where you lost your damn mind. It's words and texts. Focus on the debate, not your ego
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There may be one or two people who jump to the early "troll" or "shill" claims, but they're vastly outnumbered by the people who do try to respond intelligently.
Seriously, focusing in on one or two bad seeds and making it like it's everyone is just wrong.
When new people show up and have serious points and support it, people here engage with them. When you first showed up, I engaged with you quite a bit, and most certainly did not call you names. At some point, you started calling me a "fucking asshole" a "freakshow" and other such stuff.
That was after some people backed up the reasoning why you were wrong. And you couldn't take it. There's a pattern here, and it's not that people here have created an echo chamber. People -- even regulars -- disagree with me all the time. Last week's Apple DUI story had a bunch of regulars disagreeing with me. The story about Duke Nukem had a bunch of regulars disagreeing with me. Some people on every post agree with me, some disagree. Sometimes discussions get heated, but that's the internet.
It's not all about you.
But God forbid someone disagree with Mike's point of view.
It happens all the time. This is no echo chamber. It happens on pretty much every post. And then people have a discussion about it. And yes, people get heated in their opinions. Stop it with the Southern Belle "oh my!" crap, like you've never had a discussion where people challenge you on stuff. It doesn't make you look good.
But the Techdirt trolls are ruining this place,
Ha! Thanks for a laugh.
I guess he likes his herd of followers who don't think too critically
Wasn't it this very thread where you said you were going to stop being an asshole?
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Seriously, focusing in on one or two bad seeds and making it like it's everyone is just wrong.
"One or two"? LOL! Yeah, right, Mike.
I couldn't even read the rest of your post. Sorry.
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Ha! You mean the rest of the post where I proved you wrong, yet again.
Here we go again. Prove AJ/FudBuster wrong and he changes the subject, throws a temper tantrum.
You could have just admitted you got this one wrong, and moved on. People would have respected you for it.
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My bet is you don't admit it and don't address it. Let's start our list of things Mike won't admit right here and now.
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Post away. For every "abusive" comment you post, I'll show you being just as "abusive."
That's the whole point.
My bet is you don't admit it and don't address it. Let's start our list of things Mike won't admit right here and now.
You keep missing the point on this, just as you miss the point everyone else is making on the thread. I don't care if people use tough language on you. I don't care if you use tough language on other people. I don't find it abusive.
Posting examples of people calling you names doesn't prove you point. It proves mine: which is that you're overreacting to people challenging you when you're just as bad back.
Post whatever you want. It only proves my point.
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OK, I'm adding this to my list.
It's hilarious that you won't admit it. And sad.
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Got it.
Seriously: grow up.
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We can talk about the hundreds of things I've said to you that you haven't responded to some other time. I can tell you're not up for it now.
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We can talk about the hundreds of things I've said to you that you haven't responded to some other time. I can tell you're not up for it now
Ha. Sorry, Jr. The adults have stuff to do. If you can't figure out the point of this thread, I'm not going to explain it to you. Apparently I'm too busy fostering an abusive environment.
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Funny how you aren't addressing my points. You must be way too busy trying to take me down to admit you're wrong. I understand completely.
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AJ/FB/AC: the problem is that you're so busy pretending yourself the victim of some broad "herd" here that you've missed the fact that not everyone in the "herd" agrees with each other, making them a herd not at all. Hell, I WRITE for this site occassionally, but I've been at odds with Mike and several other members of the community in the past.
The problem isn't language or opinions or anything like that. The issue is that you occasionally (not always) are shown to be demonstrably wrong, yet you rarely (but not never) just own up to it so we can all move on to the next topic. It's frankly sad, because when I've been wrong here and owned up to it, I've found the community to be very fair about it.
Look, you're obviously a smart guy, which is why it's so infuriating when you undermine your own credibility by not just raising your hand every once in a while and saying, "Look, I got this wrong. My bad." No one would think less of you for saying that when appropriate.
Just the opposite, in fact....
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I say I'm wrong all the time when I'm convinced I'm wrong. Mike, sadly, does not. I've seen him disappear from a debate where he's been proved to be wrong more times than I can count.
I don't do that. I stick around and make my arguments and demonstrate what I think and why I think it. Mike runs away like a little boy.
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The Annotated A.J.
No, you wouldn't...
So far no one's done that.
Yes, they have...
I'm repeating myself over and over, yes. It's quite tiring.
(the definition of insanity)
I think I've done a good job of explaining my point of view, as the others have done theirs.
Half of that statement is correct.
I think this thread's been productive for the most part.
Despite, not because of, your presence.
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Re: The Annotated A.J.
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I just don't get how you can get upset at people for being insulting and then say something like that....
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Uh, because YOU'RE the one crying foul here....
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I would LOVE to hear your complete explanation of how the Third Circuit's reading of the plain meaning of the DMCA is "tortured."
Finding places where you've avoided being called out is WAY too easy.
Here's another recent favorite: http://www.techdirt.com/articles/20110429/17240014091/unsealed-righthaven-agreement-has-other-judges -questioning-legitimacy-righthavens-lawsuits.shtml#c1307
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Until you're my boss, I don't have to answer anyone. Dude, we get somewhere close to 1,000 comments per day on this site. I can't answer them all.
I find it hilarious that rather than respond to the point I raised here you just change the subject and attack me for something else.
Seriously: grow up.
I would LOVE to hear your complete explanation of how the Third Circuit's reading of the plain meaning of the DMCA is "tortured."
It's my opinion. Remember? Just like you said above. I read the ruling, I found it tortured.
Finding places where you've avoided being called out is WAY too easy.
Or, let's try this: I have a job to do, and there are about a 1,000 comments every day. I can't even read all of them, let alone respond to moronic requests.
I could just as easily do the same thing to you, because sometimes you get busy too. Do I? No.
So, seriously, grow up and stop with the temper tantrums.
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If you want to talk about Righthaven's standing, or lack thereof, let's talk about that. Why don't you think Righthaven has standing? Convince me.
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*Final thoughts*
Karl was right about this subject. The judge agreed. You're too mired in the minutiae of your own argument to see that. I'm not all too interested in the argument because you'll argue it into the ground as always, to the point that it doesn't matter what anyone else says.
The spirit of the law tells me that Righthaven was a copyright sham, only wanting to use copyright to sue people and make money. I wish we could electrocute them for their copyright bullying. (/s) Regardless if you want to keep up your tantrum and add this to "the list", be my guest.
But also add the "Constructive Criticism" post to the list. And look in a mirror. It's not anyone else's problem that you act the way you do. If you say you want to do better at debating, it may be that you need to treat others the way you want to be treated. You sure as hell use a lot of ridicule. Don't get upset when people give it back to you.
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I'm not asking you to apologize for being an asshole to others. Similarly, I have not asked anyone to apologize for being an asshole to you. Frankly, I don't think that's my job.
I'm focused on the core of the issues, and I felt that you owed Karl a specific apology not because you were an asshole, but because you insisted that he was so far out of his depths that no one who possibly understood this stuff could agree with him.
And you were wrong. I felt he deserved an apology for that.
My focus is on the issue at hand.
There is no double standard.
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So, how's that "not being an asshole" thing coming along?
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Why don't you guys give all the regulars who are complete fucking assholes every single day some gruff?
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Why don't you guys give all the regulars who are complete fucking assholes every single day some gruff?
Because, as we stated, it's not the use of some salty language that's the problem. It's your hypocrisy in using the same language and then whining when others do it back to you.
I have no problem with people calling bullshit when they think something is bullshit.
I do have a problem with them doing it, and then throwing a temper tantrum like a 2 year old when someone points out that they were wrong.
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The regulars who are assholes all seem to be the ones disagreeing with me. Darryl, for instance, or the AC's who claim everyone here is "pro-piracy." Even then, I've stopped giving them "gruff," because it's simply not worth it. Some people just can't be reasoned with.
It really frees up my time. Perhaps you could follow suit? Just a suggestion.
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The Second Circuit language you quoted was heavily dependent on the notion that there is "the copyright" that is separate from the 106 rights, so you can "own the copyright" while having exclusively licensed away all the 106 rights.
The later clarification basically says "don't rely on that language anymore."
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In the cases I've read, one or both of the following had to be true:
1. The original owner, who subsequently transferred legal ownership, was in fact the legal owner when the infringement occurred.
2. The original owner was still a beneficial owner, though not a legal owner.
In other words, when all ownership interest (legal or beneficial) is transferred, that owner loses the accrued right to sue.
That's how I understand it, anyway. Do you know of any case law that suggests differently?
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Not off the top of my head. Can you point me to any caselaw that proves your point?
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Well, one or both of those conditions were present in every single case law that has been brought up in this thread. If the Prather case had happened today, for example, Prather would be considered a beneficial owner.
But in all honesty, I don't know of case law, because I've never heard of this actually happening. It's simply not why people transfer copyrights, or bring lawsuits, in the real world.
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Wow. Are you REALLY this clueless? Here is a hint:
THEY DIDNT BECAUSE RIGHTHAVEN LIED AND TRIED TO FRAUD THE SYSTEM.
Jesus, what it takes to get through to some people...
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Listen carefully toolbag.
transferring ALL rights EXCEPT the right to sue IS NOT A PROPER TRANSFER OF RIGHTS ACCORDING TO 106.
EVERYONE knows this except you.
The Law says so.
Case law says so.
The judge in this case says so.
The little old lady down the hall from me in 3b frickin says so.
You can state you "I disagree" OPINION all you want,but the fact is, YOU ARE WRONG.
Please, please, for the benefit of people in need of real legal help, get OUT of the law practice.
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transferring ALL rights EXCEPT the right to sue IS NOT A PROPER TRANSFER OF RIGHTS ACCORDING TO 106.
That is patently false. A transferor may transfer any and all of the 106 rights to his transferee while keeping the accrued right to sue for himself. In fact, if the transferor does not explicitly grant the transferee the accrued right to sue, it remains with the transferor.
From the Ninth Circuit in Silvers:Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 900 (9th Cir. 2005)(Berzon, CJ, dissenting).
It appears to me that you have no idea what you're talking about. I doubt you'll admit it or apologize. I actually feel sorry for you.
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Bullshit. The fact that they granted (licensed) back to Stephens every single right EXCEPT the right to sue means its was a paper (ie false) transfer of copyright, and was solely a means to get around the rules. This is simply not allowed, and EVERYONE (except FUDbuster) has been saying this all along. Finally a judge agrees, and the same crowd who always say "case law" or "but a judge said so" now are suddenly silent (only 26 comments in 24 hours? really? the original postings for this got over 100 in less time, most of it "rah rah Righthaven is right!") and are saying "well, the judge is wrong." Funny how that works.
That you cant see this for what it is means either you are extremely ignorant of the basics of copyright law and assignment, or you are a mouthpiece for Righthaven. Or both.
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I, for one, am very thankful you've never been appointed a judge. Your lack of critical thinking skills and absolute denial of Righthaven's attempts to violate the spirit of the law willfully and to then use that standing to extort money from others is beyond reprehensible.
"I think the judge got it wrong."
Wow! Just Wow! Here let me use a phrase you may be familiar with, especially here on TD: "But the law is the law!" "If you're not happy with it then do something to change it."
Because we have two companies actually conspiring to steal money from third parties as a business model I'm wondering why they haven't all been thrown in jail yet.
Unlike the infringement claims made by RH, their own behavior is indeed CRIMINAL in nature and should have an adequate sentence applied to all those involved in the scheme.
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However, I think this is exactly what's wrong with the way much law is practiced today. You are taking a "plain reading" of the contract and coming to your conclusion. That's great, but try applying those critical thinking skills you are so proud of to ask yourself if the plain meaning of the words will always provide the proper outcome.
The judge and everyone here sees past the plain words in the SAA and realizes that RH and SM are trying to pull a fast one to get around what the law was intended to do.
The plain reading you are doing is simply ignoring what is clearly the plain intent of the law. But that doesn't matter to you. You (like RH) want to find some way to make, or at least allow, the law work in a way it wasn't intended. It's this constant pushing of the envelope that distorts the law into a grotesque figure that the public finds reprehensible, and makes lawyers the hated figures they are.
It's one thing to be logical and critical, it's quite another to have wisdom and experience. That we hope is one difference between lawyers and judges.
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Copyright law allows for assignments and licenses. It also allows for the transfer of the right to sue. I don't really see how assigning a copyright, granting a license, or transferring the right to sue is pulling a fast one and trying to get around what the law was intended to do.
I think you're working backwards, as I suspect most people who've voiced an opinion on the matter are doing: Anything that helps Righthaven must be wrong, and anything that hurts them must be right. I don't look at it that way. I'm trying to be objective about it. If my objective analysis was that they didn't have standing, I'd say that. But that's not what I think.
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Really? All the praise from your professors about your critical thinking skills and you can't see how RH and SM were trying to avoid running into the limits that Congress set up by coming up with a novel way to transfer those rights? Really?
And all the other points about constitutional intent of copyright, prudential standing, etc. don't add anything to that critical thought? Sigh. Done. I stand by my previous statement.
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Righthaven
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Tell me this Payback Time. Why do you take this all so personally? I've been totally honest about where I'm coming from. When will you reciprocate? What is your connection to this? It's seems like you have a vested interest.
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As to my personal motives, I have a hatred for scam artists and extortionists. And there is something about Gibson's face that makes me want to vomit. I think it is his nervous smirk.
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If not, then why does your answer change when the exclusive license is to Stephens?
I don't see how it makes a difference.
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Here, though, Righthaven cannot show how it has been injured. What is the injury? The rights were purchased only after discovery of an infringement and for the sole purpose of filing suit. There was no other value in the transfer. Infringement actually enhanced the asset's value to Righthaven. Without infringement there would have been no transfer.
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Yes, they do. The right to sue is transferable precisely because it harms the assignee's acquired property. Past infringements harm the current owner of the property interest.
Whenever someone transfers their right to sue to another with the underlying right,
The key phrase being "with the underlying right." The underlying right is what gives rise to the entitlement to bring suit.
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In Righthavens case, the "underlying right" was not transferred. "Despite any such Copyright Assignment," in the words of the contract.
Even if they had, you're still not getting that an exclusive license is a transfer of ownership. You are no longer the legal owner of the underlying right.
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Loyal to end even while your precious Righthaven goes down in flames. Your credibility is now zero.
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But, AJ, I thought the whole crux of the situation was that the right to sue is not transferable by itself under copyright law, which is what has seemed to have happen here. Hence, Righthaven suing using copyright laws is invalid, regardless of how the contract was worded.
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Everyone sees that but you!
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But then what was Righthave left with? Not any exclusive rights. And without exclusive rights, you can't sue for violation of those rights.
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Not sure about that. I think that, even if the magic language had been better drafted, a court might, consistent with Silvers, decline to give effect to "sham" transfers that are simply intended to assign a right to sue.
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I believe you are misreading the ruling. The judge is actually quite explicit in that he understand the contract, and that it's intent was to transfer solely the right to sue. The "obvious effect" was not at all that ownership changed hands, but the exact opposite.
The judge focused on the fact that Righthaven couldn't exercise certain rights.
No, he didn't. The judge properly focused on the fact that Righthaven NEVER had those rights and NEVER could exercise those rights, which made the transfer a sham.
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I simply interpret it differently. The contract's intent wasn't to "transfer solely the right to sue." The contract's intent was to transfer ownership to Righthaven, who in turn, and while acting as owner, granted a license to Stephens.
No, he didn't. The judge properly focused on the fact that Righthaven NEVER had those rights and NEVER could exercise those rights, which made the transfer a sham.
Again, I interpret it differently. Righthaven did have those rights. How else could they grant an exclusive license of those rights to Stephens? Only the owner of those rights could do that.
It certainly is an interesting ruling, and I really do hope they appeal to the Ninth Circuit. I'd like to see if an appellate panel agrees with the district court's reading of Silvers.
One last thing, Mike, while I'm making apologies. I'd like to apologize for being an asshole to you in the past as well. I really am trying to not let the constant personal attacks get to me. I hope you'll join me in setting a good example around here.
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Dude, of course it was.
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Realize that the judge is not only considering the intent of the contract, but the effect of it. Even if the intent was not so, the ultimate effect of transferring ownership, reserving all the rights of ownership except the right to sue, and having the right to reassert ownership at any time has the exact same effect as though it were just a license of the right to sue.
To the law, a distinction that is not a legally effectual distinction is no distinction. I still disagree with your assertion that this wasn't intended. I believe it was, but either way your conclusion is untenable.
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If appealed, I think the 10th Circuit would see it the same way.
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If you want to prove the judge wrong, it's actually very easy. Simply name any of the rights, specifically granted in 106, that Righthaven was ever allowed to: (a) exercise, or (b) benefit from financially.
If you can't do (a), you're not a "legal owner." If you can't do (b), you're not a "beneficial owner." Only a party that is one (or both) of these has standing to sue for infringement.
Until you can do this, you must admit that you were wrong; and the judge (here and in Colorado), myself, and the lawyer whose opinion I posted here, are right.
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The problem is, you can't be granted "ownership" of any of the rights in 106, without being granted either the ability "to do [or] to authorize" those rights (legal ownership), or a "beneficial" (i.e. economic) interest in the exercising of those rights (beneficial ownership). Righthaven had neither. They are not, and were never, an owner of those rights.
At the very least, not for the purposes of bringing a lawsuit. Only "the legal or beneficial owner of an exclusive right" is entitled "to institute an action for any infringement of that particular right." That's the exact wording of 17 501(b).
Furthermore, how could this ruling possibly be a bad thing? The purpose of copyright law isn't to fight infringement. Generally, its purpose is the dissemination of expression to the public. One specific purpose is to encourage licensing.
Licensing the content from Righthaven was never possible. Why on Earth should they have standing to sue? Granting them that ability goes against the very intent of copyright law. Copyright is supposed to prevent lawsuits like this, not encourage them.
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Stephens assigned the copyright rights to Righthaven. That gave Righthaven ownership. That made them the legal owner. Then, acting as owner, Righthaven granted an exclusive license to Stephens. I don't really understand the difficulty with this.
At the very least, not for the purposes of bringing a lawsuit. Only "the legal or beneficial owner of an exclusive right" is entitled "to institute an action for any infringement of that particular right." That's the exact wording of 17 501(b).
And the owner of a copyright right is the legal owner. An assignee of a copyright right and the accrued right to sue has standing to bring a suit for infringement. This is settled law. See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971 (2d Cir.1991) (allowing plaintiff to bring suit for copyright infringement that had occurred prior to plaintiff's owning any copyright interest where plaintiff was assigned the right to accrued causes of action).
Furthermore, how could this ruling possibly be a bad thing? The purpose of copyright law isn't to fight infringement. Generally, its purpose is the dissemination of expression to the public. One specific purpose is to encourage licensing.
And the very reason that the accrued right to sue is transferable is because it comports with the policy reasons behind copyrights.
From the Fifth Circuit:Prather v. Neva Paperbacks, Inc., 410 F.2d 698, 700 (5th Cir. 1969) (emphasis mine).
A "chose in action" means the "right to sue."
Licensing the content from Righthaven was never possible. Why on Earth should they have standing to sue? Granting them that ability goes against the very intent of copyright law. Copyright is supposed to prevent lawsuits like this, not encourage them.
Not only was it possible, it was the first thing Righthaven did once it had ownership of the rights. Again, the transferability of rights comports with the goals of intellectual property laws. That's why such rights are transferable.
I don't really understand your arguments. Do you agree that copyright rights, including accrued rights to sue, are transferable?
Footnote 1 from the Silvers case is helpful:
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Even if this was a correct summary of the contract, then at that point, Righthaven ceased to become the legal owner of the rights that they licensed.
But this is not a correct summary of the contract. You're completely ignoring this:
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Just as an aside: The laws about copyright ownership changed completely under the Copyright Act of 1976. Prior to that, there was one single copyright owner (the "proprietor"), much as there is in patent law today. Ownership could not be subdivided; it was transferred via assignment in toto, or not at all. Obviously, that's not true now.
Case law that existed prior to 1976 should be viewed as inapplicable, at least on this specific point.
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Oh, that is very much not true at all. It was a new addition to copyright, and overturned previous case law.
There's an explanation here:
http://library.findlaw.com/1997/Jul/1/126175.html
I'm sure I could find more if I dug around, but that page seems accurate enough.
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Oh, that is very much not true at all. It was a new addition to copyright, and overturned previous case law.
I got the notion right from Silvers.Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 908 (9th Cir. 2005).Moran v. London Records, Ltd., 827 F.2d 180, 183 (7th Cir. 1987).
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OK, perhaps I wasn't clear here... Yes, the right of a beneficial owner to sue for infringement had been granted in case law prior to the 1976 Act (even though it was not based on any statute at the time).
However, the divisibility of copyright ownership had not.
So, your quotes would be relevant if we were arguing about whether a beneficial owner had a right to sue. But we're not. We both agree that they can.
The issue is that you're claiming an exclusive license is not a transfer of legal ownership (you compared it to a "lease" in another thread). That is false, according to both statute and case law. And that is precisely what changed in the 1976 Act, at least as far as this debate goes.
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When supporting any position by citing to a portion of case law other than a majority opinion, e.g., concurrence, plurality, and especially a dissent, it's prudent to make that fact known. In fact, it's deceitful to hide it.
Is anyone willing to give the AC the benefit of the doubt that it was an honest oversight?
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When supporting any position by citing to a portion of case law other than a majority opinion, e.g., concurrence, plurality, and especially a dissent, it's prudent to make that fact known. In fact, it's deceitful to hide it.
Is anyone willing to give the AC the benefit of the doubt that it was an honest oversight?[/i]
"I noted that I was quoting a dissenting opinion above. Sorry if I forgot to note that later. Can you show that the dissenting opinion I'm quoting is wrong? If not, it's not really relevant, is it?"
(Included original comment...)
THIS. Right here. This is why people find you annoying, sir. Nowhere in the comment you are responding to did he say that you were wrong. He was just pointing out why some people may have missed what you were going for. AND YOU ATTACK HIM. If you need any further help to understand why people here don't always give you respect, I cannot help you.
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I never asked for you respect and don't care whether or not you do. Focus now...
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As upholding the law on contract rights this is a big win and that is certainty in the public's best interest.
Though I'm still wondering if anybody is going to bring up a first amendment issue on fair-use in these cases. Or have I missed that story along the line? One question I have is it really in the best interest of the public that the business, or in this case the press, has power to squelch speech in any shape or form regardless of contribution?
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I have never, ever, suggested that judges are in the pocket of Big Content. It's possible commenters on the site have, but despite your desires to say that I need to take responsibility for the comments of anyone online (not surprising from an industry that so hates the proper application of liability), those are not my words.
Are you really so desperate now that you have to resort to flat out lies and defamation?
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And please, note: we are not Mike Masnick (although, it would be fun to change my username to Mike Masnick, just to confuse you. :p)
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Except, you're wrong. Since the ONLY right retained by RH was the right to sue, and all other rights "licensed" back, AND that the court, caselaw, and the law itself says that you CANNOT (cant believe you dont understand this, being that you are some kind of law student or something) retain JUST a right to sue absent some of the other rights, this is de facto end-run around the law, is illegal, and has no standing. Its void. The fact that you cant see this tells a lot, and I really, truly hope you do not continue in law practice, as you will cause much harm to those you represent since you cant understand even the most basic of arguments and caselaw.
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Personally, It would be better if he didn't understand the law, because in my eyes it's far worse to understand it, and then attempt to game it for personal gain. My opinion, obviously.
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I've based my opinions on what I gleaned from reading tons of caselaw and secondary sources on the subject. I disagree with your interpretation of things. I've explained my arguments elsewhere, citing authorities for the positions I've taken. If I had more time today, I'd gladly go back over it, but as it is, my homework isn't going to do itself.
And please, can we stop with all the personal attacks around here?
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In short, here's my argument:
1. Stephens owned the 106 rights, including the right to sue.
2. Stephens transferred ownership of the 106 rights and the right to sue to Righthaven.
3. At that moment, Righthaven had standing to sue for past infringements.
4. Righthaven then, as owner, granted an exclusive license of the 106 rights to Stephens.
5. Righthaven did not transfer it's right to sue to Stephens.
6. Righthaven, as owner, has the right to sue for the past infringements.
7. Stephens, as exclusive licensee, has the right to sue for prospective infringements. (Righthaven does not.)
8. An exclusive licensee is the owner of the right for certain purposes of the Copyright Act, but the transferor of the right is also still the owner of the right for certain purposes of the Act.
After my classes tonight, I'll see if I can find the other thread where I laid out the argument more fully for you. I'm curious to get your take on it. I'm logging out now for real. I've already spent three hours in this thread, and I've got a quiz on fundamental implied rights tonight.
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At any rate, this is where I see the chain breaking:
"At that moment, Righthaven had standing to sue for past infringements."
I'm skeptical that a simultaneous acceptance of 106 rights and conferring away of 106 rights is sufficient.
"Righthaven, as owner, has the right to sue for the past infringements."
I think that once it exclusively licenses away its 106 rights, without retaining any 106 rights for itself, it loses the right to sue for violations of the 106 rights. Being an "owner" doesn't confer standing to sue for violation of 106 rights if you don't actually have those rights.
I think I was going back and forth with you in the other thread as well, making essentially the same arguments.
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Summer session. I'm knocking a couple classes out so my final year will be less harried.
At any rate, this is where I see the chain breaking:
"At that moment, Righthaven had standing to sue for past infringements."
I'm skeptical that a simultaneous acceptance of 106 rights and conferring away of 106 rights is sufficient.
I don't think the simultaneous nature of it matters. What if Righthaven granted Stephens an exclusive license a week later? I don't see how that would matter.
"Righthaven, as owner, has the right to sue for the past infringements."
I think that once it exclusively licenses away its 106 rights, without retaining any 106 rights for itself, it loses the right to sue for violations of the 106 rights. Being an "owner" doesn't confer standing to sue for violation of 106 rights if you don't actually have those rights.
My research indicates it doesn't work that way.
Let's do a hypo: Say X writes a song, publishes it, and holds the copyright. Y infringes on that copyright by violating the reproduction right. After that infringement takes place, X grants an exclusive license of the reproduction right to Z. X does not transfer the accreted right to sue to Z. X would still have standing to bring suit for Y's infringement notwithstanding the fact that after the infringement took place X granted Z an exclusive license of that right.
If you have authority that says otherwise, I'd love to see it.
I think I was going back and forth with you in the other thread as well, making essentially the same arguments.
Probably so.
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This seems to be the most likely reasoning to me: "Transferring all rights except the right to sue is the same as transferring all rights, as the right to sue doesn't exist. You can only have standing to sue, by owning one of the 106 rights. If you exclusively license all 106 rights, then you can no longer exercise those rights, ergo you do not have standing to sue."
If there is a 'right to sue', could you please point out which section has it? (obviously it isn't 106)
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There is no 'right to sue' - it might help to think of it as the 'privilege to sue' once the proper 106 rights are acquired.
Calling it a privilege wouldn't make it any less abused unfortunately.
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But you cant have that "privilege" if you have NO other rights persuant to 106. You MUST have some (maybe as little as one? dunno) actual rights under 106.
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....AND acquired properly, not through some bush league, mickey mouse, do-as-it-says-not-as-it-does agreement.
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In fact, the exact word used in 17 USC 506 is "entitled."
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The assignee of a copyright right "stands in the shoes" of his assignor. See T.B. Harms & Francis, Day & Hunter v. Stern, 231 F. 645, 647 (2d Cir.1916) (holding that plaintiffs, as assignees of composer's rights under the contract, “stand in [the] shoes” of the assignor and could assert the defense of lack of mutuality of contract).
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I do mean 501, sorry. But yes, the word that Title 17 uses is "entitled."
And you're still missing the point. The ability to sue is not a right in and of itself, that is transferable absent any other interest in the property. You must have an underlying property right in order to sue.
This is because lawsuits seek to redress harm that is done to the one who has interest in the property. If you do not have interest in the property, you are not harmed. You cannot seek redress of something that does not harm you in any case.
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I believe you're right about that (though I don't have any particular case law in mind).
But that's not what happened here.
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The argument is that this sort of 'transfer' isn't a transfer at all, but instead smells of someone trying to get around Silvers. Why else go through this song and dance?
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Once again, with feeling:
THIS IS THE ILLEGAL PART
They
CAN
NOT
retain JUST The right to sue. They must ALSO have at least some of the other rights. You cant just get around this by calling it a "license" and say "its ok now!" This has been shown REPEATEDLY to you.
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The issue isn't whether they can retain the right to sue. It's clear from my last post to you that they can. In fact, the presumption is that absent an explicit contract otherwise, the transferor does retain this right. The issue is whether they can then exercise this right once they've transferred the underlying exclusive right to another. I'm aware of no authority that says they can't. If you can point me to such authority, given your clear superior knowledge of this subject, then please do.
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The "right to sue" is nothing more than elaboration of the general definition of a right itself. A right is: that which, when wronged, demands a remedy. The standing for suit on the remedy proceeds DIRECTLY from the right. There is no intermediary station between right and remedy where the two may uncouple and one party holds a right and the other holds only the right to have remedy on that right.
To say you have transferred the right to sue without transferring the right for which remedy is sued is to say nothing at all. The law does nothing in vain, fraud is not purged by circuitry, and being right about right does not make a judge wrong.
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It is a presumption based on the notion that the right to sue for violation of a right and the actual holding of that exclusive right are not decoupled.
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Righthaven
http://gametimeip.com/2011/06/15/nevada-court-says-stephens-media-getsthe-goldmine-righth aven-gets-the-shaft/
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Re: Righthaven
I don't think this person actually read the agreement. From the article:
the reason for the standing requirement is to ensure the party bringing the lawsuit has the power to license the defendant, which was clearly the case here.
The entire reason it was thrown out is because Righthaven does not have the power to grant a license, to the defendant or anyone else, and they never did.
I'm guessing this guy simply didn't read the agreement well enough. I left a comment explaining this point.
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Re: Re: Righthaven
I appreciate the comment. I did read the SAA and the form assignment agreement, which I analyzed in a previous post.
I think the judge got it wrong, but that's not to say I misunderstand his reasoning. My interest in this case (and IP licensing more generally) has always been more about the business model than the execution.
I am a lawyer, but that is not the perspective I use in my analysis. Confusion is in the lawyer's best interest, and confusion keeps control of the licensing process in the hands of lawyers, rather than reasonable business-people.
You're all free, of course, to bicker amongst yourselves and call me names (yes, I do take being referred to as a lawyer as an insult), but I'm going to continue to study the deployment of IP as an asset and analyze situations in that background.
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Re: Re: Re: Righthaven
I did find that previous post, and just read it. I still find it hard to believe that you read the same document I did.
You brush over the most important part of the SAA with a single line: "Further, section 7.2 contains an exclusive license for Stephens Media to continue to use and exploit the work."
The exact word in the SAA was "retain." And Stephens didn't retain just any sort of use or exploitation, but use or exploitation "for any lawful purpose whatsoever."
Furthermore, there's this: "Despite any such Copyright Assignment [...] Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery."
In fact, nothing in the agreement even considers any use of the copyrights, other than the right to sue. Not a single line about licensing or royalties, other than the one I just quoted. It's all lawsuits, lawsuits, and more lawsuits.
It is brazenly obvious that Stephens never intended to transfer any 106 rights to Righthaven. The only thing they intended was to create a lawsuit factory. That's exactly the opposite of what copyright (and patents) is supposed to achieve.
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Here's another little detail you may have missed: If Righthaven decides not to sue anyone within 60 days, the copyrights automatically "revert" back to Stephens Media. (Sec. 3.3)
There is no way anyone should view this as a legitimate copyright transfer. It's selling lawsuits, plain and simple.
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There is no way anyone should view this as a legitimate copyright transfer. It's selling lawsuits, plain and simple.
So what? Where does it say that if there's a reversionary right, it's not a legitimate copyright transfer? Nowhere. You're simply saying what you think the law should be, not what it actually is. That's my problem with much of your analysis.
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I might as easily sell you a house with a reversionary clause so as to avoid the hassles of eviction suits and quiet enjoyment and all that other yucky stuff that comes with renting.
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Perhaps I should have said the terms of the SAA can hardly serve to establish a distinction between license and ownership for the purpose of satisfying the limitations set forth in Silvers if there is an "at any time" reversionary right.
To put it another way, whatever they say, it is what it is.
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That's not why I posted it. I was pointing out that this is another metric of the intent of the contract.
In other words, it shows that the intent was to transfer the right to sue, and nothing else.
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Re: Righthaven
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Re: Re: Righthaven
This is actually a very good point, and one I hadn't considered. If a party no longer has any legal or beneficial interest in the copyright, why should they be entitled to sue for past infringements? How could those past infringements possibly cause them any harm? What possible justification could there be for allowing them to retain that entitlement?
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Re: Righthaven
http://gametimeip.com/2011/06/15/nevada-court-says-stephens-media-getsthe-goldmine-righth aven-gets-the-shaft/
I'm glad someone agrees with me. It seems obvious to me as well. The judge's opinion was quite thin on the ownership issue, IMO.
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Re: Re: Righthaven
So far three federal judges, a number of law professors, 99% of lawyers and almost the entire blog-sphere disagree with you. I wouldn't want to be you right now.
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The point being that just because they manufactured standing to work within the confines of Silvers, it doesn't automatically follow that the court has no discretion to deny standing or that this ruling will be reversed on appeal. Here, what is of greater import is public policy and Congress' intent.
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Further, any judge suggesting sanctions like this in a ruling pretty much leaves themselves open for appeal. It shows perhaps that the judge has a personal opinion beyond the legal.
Finally, if the ruling went the other way, I am sure that you would be posting about appeals and how the EFF would be stepping into to protect free speech or write some blog posts or something. Don't be shocked when the other side chooses to do the same.
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Wait, what? I have never seen an appeal (much less a successful appeal) based on the claim that the judge said the appellants side maybe deserved sanctions (especially where there appears to be a legitimate basis for such statements).
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Righthaven
That is assuming the infringement had occurred while the transferor was the holder of an exclusive right and the suit was brought prior to the assignment of that right to another party. This would be consistent with the observation in Silvers that "one who owns no exclusive right in a copyright may not sue for infringement."(Citing Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982)).
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Re: Righthaven
Bingo!
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Re: Righthaven
Why would suit have to be brought prior to the assignment? The rights can be transferred even if no suit has been brought.
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Re: Righthaven
Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982).
You seriously need to reconsider going into law because you can't comprehend the concept of authority. When 90% of people who know the law disagree with you, including distinguished judges and law professors, it is time to concede. Being irrationally stubborn is not a good quality for an advocate to have. I have already explained to you that when a transaction is a sham or effectuated for the sole purpose of evading the confines of a statute, the court can deny prudential standing. What Righthaven and SM have attempted to do is to trade in causes of action using a sham assignment. If there was nothing wrong with the SAA it would have been disclosed to defendants or incorporated into the assignments. But it wasn't. Which means even Rigthaven knew it was a problem.
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Re: Re: Righthaven
And this is where I know we've gone way past the point of diminishing returns. Thanks for the insult.
I've already explained why I disagree. Guess what? People can disagree with you. That doesn't mean you're wrong or you're right. We simply disagree. You can't point to any case that proves you're right, and neither can I.
You clearly NEED for Righthaven to lose. I couldn't care either way. That tells me you're too biased here.
Have a great weekend.
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I know this is a waste of time so it will be my last attempt at helping you understand the law.
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Re: Righthaven
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Re: Re: Righthaven
http://www.citmedialaw.org/legal-guide/understanding-difference-between-transfer-and-license
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Look, I know I'm beating a dead horse at this point. But from here on out, you have to at least acknowledge that you're the only one who views the case in this light.
Stephens did not "assign the copyright" to Righaven. That is clear from the SAA. But even if they did, it's misleading to say that Righthaven "granted Stephens a license." The accurate statement is "they transferred all rights back to Stephens."
All case law, even the case law you've quoted, backs this up. Nobody except Righthaven's lawyers believe they have standing to sue. The judge in this case called such claims "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful."
To quote Daniel Moynihan: "Everyone is entitled to his own opinion, but not his own facts." Whatever your opinion, you are factually wrong.
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Who would be able to exercise it otherwise?
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It is expresslly these rights that would give them the rights to sue, but they do not have control of said rights ( since we all agree they "assigned" them to Stephens).
The issue in its simplest.
< If they have the rights to re-produce, for gain, the copyrighted materials; then they have a right to sue for possible lost revenues due to copyright infringment.>
But from my understanding of the case; which is very limited; they only controlled the rights I stated until they granted them exclusively to Stephens, in the same contract.
Only Stephens has a right to sue to protect the rights they were granted.
I am not saying we should throw out copyright lawsuits, only that if Stephens needed help litigating their rights, they should have hired lawyers.
Lawyers would be more knowledgable about the law then Righthaven or the contributers to this discussion seem to be.
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