Righthaven Loses (Big Time) In Colorado As Well
from the another-one-bites-the-dust dept
Another day, another Righthaven disaster. We've been waiting for a while for Judge John Kane in Colorado to rule on Righthaven's cases there. As you may recall, he'd put them all on hold back in May to determine if Righthaven had standing. He put them on hold after the details of the sham copyright assignments came out, but before a series of Nevada courts all ruled against Righthaven, saying that the company had no standing to sue, because it did not actually hold the copyright.Judge Kane has finally ruled in one such case and once again Righthaven comes up a loser. Judge Kane ruled similarly to the Nevada cases in explaining that Righthaven did not have standing or the copyrights properly assigned to it, and thus he has dismissed the case and accelerated things by switching the status of the case from a motion to dismiss up to summary judgment, allowing him to order Righthaven to also pay legal fees (something it's been avoiding and ignoring in other cases).
The ruling is a worthwhile read. While those sued by Righthaven used the precedent set in the Silvers case, which states that you cannot transfer just the bare right to sue, Judge Kane points out that's only controlling precedent in the 9th Circuit, and since this court is in the 10th Circuit, it is not controlling. So rather than just relying on Silvers, Judge Kane does a thorough analysis of copyright law -- going all the way back to the Constitutional origins of the law. It's a worthwhile read. It starts with "promoting the progress" (of course) and then goes through some details of the 1909 Copyright Act and the 1976 Copyright Act. In looking at the 1909 Act, Judge Kane notes the historical "balance" of copyright law, in seeking greater legal dissemination of the works, and how that's limited by the ability to assign the bare right to sue:
A third-party who has been assigned the bare right to sue for infringement has no interest in the legal dissemination of the copyrighted material. On the contrary, that party derives its sole economic benefit by instituting claims of infringement, a course of action which necessarily limits public access to the copyrighted work. This prioritizes economic benefit over public access, in direct contradiction to the constitutionally mandated equilibrium upon which copyright law is based. The legislative history relating to the Copyright Act of 1976 supports this interpretation.It's worth noting that this was the case in which lawyer Marc Randazza filed his Glengarry Glen Ross motion, which some had criticized. In this case, it appears to have worked.
So, what's left for Righthaven? Its cases in Nevada appear to be dead. The cases in Colorado are now likely dead as well. There's a case in South Carolina that probably isn't long for this world. Righthaven has stopped filing new cases. So, right now, it's fighting to not pay legal fees (more on that shortly), and also facing charges of unauthorized practice of law in a few states. It may also be working on an appeal, though one has to wonder if it actually has the money for an appeal at this point...
Update: Not a huge surprise, but we've received word that Judge Kane has started asking Righthaven to show cause for why other cases in Colorado shouldn't face this same result by October 7th.
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Filed Under: colorado, copyright, standing
Companies: righthaven
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Re:
"[E]ncouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Ooh, baby!
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I don't get your point.
The laws purpose is to advance public welfare, the idea behind copy protection laws is that they allegedly help do so. See your very quote.
""[E]ncouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors."
Notice the part where it says to advance public welfare.
That's the whole purpose.
Where Mike and others may disagree with the court is the idea that this is indeed the best way 'to advance public welfare'. If it's not, then these laws ought to be abolished.
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I suppose you figure you finally lost that debate and so you had to change to subject to another debate you just lost.
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I'm arguing that right here in this thread. I'm using Tor, so my snowflake is changing. I'll use the name "perplexed" so you know it's me from now on. I think Judge Kane, like Pro, Hunt, etc. got this wrong too.
Judge Kane is analyzing it from the perspective that Righthaven currently has no rights that it can exercise in the work. This misses the point. Righthaven was assigned ownership. As owner, Righthaven granted an exclusive license. And as always happens when an owner grants an exclusive license, the licensor cannot exercise those rights it has granted to its exclusive licensee. That doesn't divest Righthaven of ownership. Licensors are "legal owners" under the Copyright Act.
This issue turns on contract law. Did ownership of the copyright and the accrued right to sue for past infringements transfer to Righthaven under the contract? Yes. End of standing analysis. The subsequent exclusive license to MediaNews is irrelevant.
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"This misses the point."
It may miss the point that you want to make, but the point is that your point is not relevant to this ruling. You're making a point that differs from the reasons that the judge ruled against Righthaven.
Your argument is similar to arguing that someone who stole something shouldn't get in trouble because he didn't commit fraud. Your point is that he didn't commit fraud. The judge's point is that he stole something. It's your point that misses the point.
Let me give you a hint. Go back up and read what the judge wrote and stop missing the point and bringing up irrelevant points that differ from the judge's point.
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The issue is whether Righthaven is a legal owner under the Act. As licensor, they clearly are. Can you refute this point?
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They are clearly not the owner or holder of the copyrights, they were only holding the rights to sue and then after it was amended to say they owned everything but with an option to give back the rights to the original anterior owner which is clearly a mechanism to bypass justice.
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That's right, because the they weren't the owners, it was a sham transfer in an attempt transfer only the right to sue.
If you don't understand why the contract was a sham then you certainly aren't going to be capable of understanding the rest of the discussion.
As a matter of fact, you sound just foolish enough to be Righthaven employee.
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But you have to immediately sign back to me the exclusive right to live in it, maintain it, lease it, paint it, repair it, mow its lawn, collect mail from its mailbox, and purchase utilities and services for it.
Oh, but you reserve the right to sue trespassers, but only if I let you, and only if you give me half the proceeds from your lawsuit.
Yeah, you don't own the house.
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But you have to immediately sign back to me the exclusive right to live in it, maintain it, lease it, paint it, repair it, mow its lawn, collect mail from its mailbox, and purchase utilities and services for it.
Oh, but you reserve the right to sue trespassers, but only if I let you, and only if you give me half the proceeds from your lawsuit.
Yeah, you don't own the house.
If you transferred title to me, then I do own the house. You're making the same mistake that Judge Kane made with your quantitative analysis.
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http://en.wikipedia.org/wiki/Fraud
Righthaven used deceiving tactics in the pursuit of monetary gains, no judge will take that kindly.
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Types of criminal fraud:
* Advance-fee fraud
* Bait and switch
* Bankruptcy fraud
* Benefit fraud, committing fraud to get government benefits
* Counterfeiting of currency, documents or valuable goods
* Charlatanism
* Confidence tricks such as the 419 fraud and Spanish Prisoner
* creation of false companies or "long firms"
* Embezzlement, taking money which one has been entrusted with on behalf of another party
* False advertising
* False billing
* False insurance claims
* Forgery of documents or signatures,
* Franchise fraud where the real profit is earned, not by the sale of the product, but by the sale of new franchise licenses.
* Fraud upon the court
* Health fraud, for example selling of products known not to be effective, such as quack medicines,
* Identity theft
* Insurance fraud
* Investment frauds, such as Ponzi schemes and Pyramid schemes
* Marriage fraud to obtain immigration rights without entitlement
* Moving scam
* Religious fraud
* Rigged gambling games such as the shell game
* Securities frauds such as pump and dump
* Tax fraud, not reporting revenue or illegally avoiding taxes. In some countries, tax fraud is also prosecuted under false billing or tax forgery[2]
There are also types of fraud which do not necessarily entail criminal activity, such as:
* Unconscious fraud, such as fraud committed by a hypnotised person or perhaps a medium in a trance[3]
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It is clearly a sham.
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Re: Re: Re: Re: Re:
I think that it's you that is missing the point.
Copyright just is whatever "rights that it can exercise in the work." That's the extent of copyright. Unless an entity is transferred "rights it can exercise in the work," nothing whatsoever is transferred. No "license," no "title," nothing.
I've explained this. Case law I've linked to has explained this. Seeing as you wouldn't listen to me, I also asked a working copyright lawyer, who explained this. And every single judge who has seen the Agreement has presented rulings that have gone into great detail to explain this.
At what point do you admit you're simply wrong?
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Re: Re: Re: Re: Re: Re:
Look at it this way. Under the 1909 Act, an exclusive licensee did not have standing to sue unless he joined his licensor. Think about that. It means that the licensee's ownership interest was insufficient on its own. He had to join his licensor because his LICENSOR had the ownership interest necessary to bring suit.
The 1976 Act changed the need of an exclusive licensee to add his licensor to have standing, but the reasoning there is not because that licensor does not have an ownership interest.
A licensor owns the thing he licenses. Your theory to the contrary is laughable on its face.
Answer me this. Say I own a copyright and someone infringes it. Later on, I grant an exclusive license to another. Subsequent to my granting that exclusive license, I bring suit against my infringer. Your theory is that the infringer would be able to argue that I don't have standing because I granted an exclusive license to another subsequent to the infringing activity. This argument falls flat on its face. If I owned the copyright when the infringement occurs, I have standing. My subsequent grant of an exclusive license is irrelevant.
Say I own a car and you run into it. I can sue you for damages even if I lease the car to another exclusively in the interim. Understand?
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I don't have to, since I never thought he said that. What I believe (and lawyers and judges believe) is that they were never held any of the copyrights in the first place, so there was no "exclusive license" to grant. A point you have been consistently ignoring.
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Karl,
We'll get to that point, but first let's clear the air about whether or not a licensor owns the thing he licenses.
Let me walk you through it really slowly. Let's start with the 1909 Act. It is a fact that an exclusive licensee could not bring suit for infringement unless he joined his licensor. Now, your theory is that a licensor doesn't own the thing he licenses. But how can that be? If an exclusive licensee is the sole owner of the copyright, then why did the 1909 Act require that he join his licensor? Why wouldn't the exclusive licensee have enough ownership to have standing under the 1909 Act without joining his licensor?
Answer me this, and then we'll go to the next step.
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Why?
I know all about the differences between the 1909 Act and the 1976 Act. I know that as of the 1976 Act, you no longer have a single "proprietor," but that each of the 106 rights can be transferred and owned separately. I know the difference between exclusive and non-exclusive licenses (the former is a transfer of ownership, the latter is not), and the difference between "legal owners" and "beneficial owners" (both of which may sue for infringement).
Now, your theory is that a licensor doesn't own the thing he licenses.
Where on Earth did you get this idea?
In the past, I said that when you grant an exclusive license of one of the 106 rights to another party, without retaining any beneficial interest in that right, then you are not an owner of that specific right, and you do not have standing to sue for infringement under 17 506(b).
But so what? None of this matters in the slightest. It's a complete red herring.
Because that's not what happened here. Righthaven did not grant an exclusive license, to anybody, because the copyright assignment wasn't valid in the first place.
They did not, ever, hold any copyright interest on any of the articles they're suing over. They had no right to grant an "exclusive license" any more than you or I.
And that's because they were never transferred any of the 106 rights. They were never granted the exclusive right "to do or to authorize" the articles' reproduction or distribution, to perform or display the articles, or to prepare derivative works.
And outside of those exclusive rights, there is nothing to transfer.
Not only Silvers and other case law, and the copyright lawyer I asked, but every other judge in the Righthaven cases, made this perfectly, crystal clear.
If you disagree with all of them, then you obviously don't know the law. So you'll forgive me if I find it patronizing and insulting if you want to "walk me through it really slowly," since you obviously know even less about it than I do.
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Because that's not what happened here. Righthaven did not grant an exclusive license, to anybody, because the copyright assignment wasn't valid in the first place.
Why? Tell me exactly why the assignment isn't valid in the first place. Furthermore, point me to any district court's language holding this.
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How's about I just quote legal minds that are superior to both of ours?
- Righthaven v. Hoehn
- Righthaven v. Democratic Underground
I won't bother quoting from the ruling embedded above.
From cases about copyright transfers, and standing, outside of the Righthaven cases:
- Nafal v. Carter
- Silvers v. Sybersound
- ABKCO v. Harrisongs (citing Eden Toys)
- Althin CD Med.v. W. Suburban Kidney Ctr.
Hope that helps.
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Because that's where we're at now.
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Shit! Shit happens!
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What part of "the creation of this limited monopoly is justified by..." do you not comprehend???
Please repeat the second grade until you can get it right.
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Re: Re: "Pirate Mike"
I don't think that is a) accurate, b) fair. Mike does have some views on copyright that diverge from mine, and apparently yours. However, I don't think that he disagrees with the "promote the progress" portion of copyright law. Mike simply takes the position that the current state of copyright law does not do that.
I also don't think that Mike is "pro piracy." He simply thinks that some actions are not piracy, which I (and you, I guess) think they are. He also takes the position that if they are piracy, the deck and the consequences are too stacked against the defendant.
There is plenty of room for respectful disagreement with him. Don't be a douche.
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Re: Re: Re: "Pirate Mike"
Mike also tends to argue that copyright and patents don't "promote the progress", but in fact hinder it. Too bad the judge just doesn't agree with that.
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Re: Re: Re: Re: "Pirate Mike"
In fact making money from something can be an incentive, but is not the only incentive and copyrights are not the only way to make money.
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Re: Re: Re: Re: "Pirate Mike"
From what I'm reading, the judge is arguing the same thing as Mike... that the original purpose of copyright was to promote progress. The judge doesn't say anything about whether this is still applicable.
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Re: Re: Re: Re: "Pirate Mike"
Copyrights and patents in their current form don't promote or encourage progress.
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Re: Re: Re: Re: Re: "Pirate Mike"
That's an issue for Congress to address, not Judge Kane. When an issue is unclear, I agree that looking to the "promote the progress" clause is justified. But when a case turns on settled principles of law, like I think this case does, it's not appropriate for a judge to do so. Judges aren't supposed to look at each copyright case individually to decide if the progress is being promoted and then rule based on that determination. That's not how it works.
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Re: Re: Re: Re: Re: Re: "Pirate Mike"
But since it is not care to shows everybody here where in the laws:
- It says that a licensor granted only specific rights for litigation purposes only is the full owner of a copyright or akin to it?
- Where are the laws governing licenses and their transfers it says a partial transfer of rights grants the full protections of the laws to anybody? Do consumers have the right to sue others now since they got limited rights to it after they acquire the license to play those don't they?
- Where are the laws that say any judge must accept a clear scheme designed specifically to go around the legal requirements? with a clearly faked copyright transfer that was so transparent that optical fiber manufacturers would be jealous of it.
He had the power, he had the precedents, and now that it goes against your beliefs you get frustrated, well welcome to the party we are all frustrated and Congress will need to address those issues sooner or later.
When people start drafting their own laws and electing their own politicians to pass those laws and make every law a public discussion where everybody can clue in, maybe then you will get more frustrate than I am with the current government and judicial system, but until then, what part of the law you don't understand?
There is no law about how the judge should fallow those things, there is some precedents that are guidelines and he may be trying to break new ground here, but it is in his power to do so until higher courts say he don't, meanwhile that is a precedent on the books and a split from other circuits which makes this something the supremes may want to look into it, and it will be fun when they do, because it may clear some aspects of the law that are not clear to everyone.
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Re: Re: Re: Re: Re: Re: "Pirate Mike"
What part of that is so difficult for you to wrap your brain around?
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Re: Re: Re: "Pirate Mike"
I think Mike has some good normative ideas about copyright policy in general, but his understanding of copyright law and history is skewed, to put it nicely.
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Re: Re: Re: Re: "Pirate Mike"
Can you please point out where I have said this?
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Re: Re: Re: Re: Re: "Pirate Mike"
I don't think so.
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Re: Re: Re: Re: Re: Re: "Pirate Mike"
I typed out a response, but I think Mike's anti-anonymity Tor filter caught it. Regardless, please note that Mike is not denying that what I said is true.
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Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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Re: Re: Re: Re: Re: Re: "Pirate Mike"
Because I've never said that. But, of course, you won't admit you were wrong. Because you never do that.
Notably, you haven't denied what I said. Funny too how the judge explains how it's all about balance. Remember how you don't think balance has anything to do with it?
I recognize that many people believe that copyright is about balance. I have never said that argument is contrary to the law. I have merely explained why it doesn't make sense economically.
To be honest, most of the people who I tend to agree with on copyright law also use the "balance" terminology. Frankly, I think it's lazy shorthand for recognizing that the public is supposed to benefit from copyright. But I've never argued that those who argue for balance are somehow wrong on the law -- just that I think they haven't fully thought through the overall economic implications of what they state.
Working backwards, as it were...
Haven't you heard? "Working backwards" is out as the troll-of-the-day statement. Now it's "broadbrush."
But, FYI, claiming that every time I have an opinion that differs from yours means I'm "working backwards" is not particularly convincing. Whether or not you're a troll, using common troll phraseology automatically makes everyone discount your comments.
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Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
I remember the back and forth, so I'm surprised I can't find the thread. If I find it and it proves me wrong, I'll gladly admit it.
I recognize that many people believe that copyright is about balance. I have never said that argument is contrary to the law. I have merely explained why it doesn't make sense economically.
To be honest, most of the people who I tend to agree with on copyright law also use the "balance" terminology. Frankly, I think it's lazy shorthand for recognizing that the public is supposed to benefit from copyright. But I've never argued that those who argue for balance are somehow wrong on the law -- just that I think they haven't fully thought through the overall economic implications of what they state.
I appreciate the explanation. The fact that you view the law through an economic lens may account for some of our differences.
Haven't you heard? "Working backwards" is out as the troll-of-the-day statement. Now it's "broadbrush."
LOL! I missed the TD Troll meeting, so I guess I didn't get the memo.
But, FYI, claiming that every time I have an opinion that differs from yours means I'm "working backwards" is not particularly convincing. Whether or not you're a troll, using common troll phraseology automatically makes everyone discount your comments.
I think you agree with the reasoning because you agree with the result. That's working backwards. It's not trying to be trollish, it's merely pointing out what I think to be a fact about you generally.
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Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
I also agree that there should be "balance."
The balance should be between how much the public gains from copyright laws, vs. how much it loses from them.
Artists' needs only come into play when those needs coincide with the public benefit. Of course, they usually do - there's no question the public benefits from art - but "balancing" copyright in terms of "artists vs. the public" is simply using the wrong scale.
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Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Let's review.
I said: "He thinks it stands for the proposition that authors shouldn't be rewarded for their labor." The "he" is you, and the "it" is Feist. So my claim is that you said that that Feist stands for the proposition that authors shouldn't be rewarded for their labors.
You said: "Because I've never said that. But, of course, you won't admit you were wrong. Because you never do that."
OK, drumroll please....
http://www.techdirt.com/articles/20110411/01553913841/revisiting-question-who-deserves -copyright.shtml#c538
In that thread, you said: "Feist makes it clear that copyright is *not* about rewarding someone for their labor at all."
So, in other words, I am exactly right.
Now, you claimed I would not admit that I was wrong. I would have, had I been wrong. But now it is clear THAT YOU ARE WRONG.
Will you admit it? I sincerely doubt it.
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Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Yikes. Honestly, I can't even see the goalposts from here, considering how far you moved them.
Let's review what was actually said.
You stated: "He thinks it stands for the proposition that authors shouldn't be rewarded for their labor."
Your "proof" is me stating: "Feist makes it clear that copyright is *not* about rewarding someone for their labor at all."
Nowhere in there do I make the preposterous claim that authors SHOULD NOT BE REWARDED for their labor. I point out that copyright law is not about rewarding artists, but that makes no statement whatsoever on whether or not authors "should be" rewarded.
Try again, hotshot.
So, in other words, I am exactly right.
Uh, no. It means you moved the goalposts once you realized you were totally full of it.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
LMAO! Weasel words. Copyright is EXACTLY about rewarding authors. That's why copyright law grants authors exclusive rights--so they can be rewarded. You apparently still don't comprehend Feist. It's hilarious.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
We can argue over whether or not copyright is about rewarding authors. I believe you are absolutely, 100% wrong, as others have already pointed out.
However, that is not the point of this discussion. You falsely claimed that I said authors *SHOULD NOT BE REWARDED*.
And then doubled down pretending I had said that elsewhere. When I pointed out how wrong you were, you changed the subject again.
Damn. Those goal posts keep moving further and further away.
Listen up, sparky, it's time to admit you were wrong and apologize.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
However, that is not the point of this discussion. You falsely claimed that I said authors *SHOULD NOT BE REWARDED*.
I see your point and concede it. It's not that you don't think that authors should be rewarded, it's that you don't think copyright is at all about rewarding authors.
I can pull out all sorts of congressional legislative history and Supreme Court language that disagrees with you, but what's the point? It's obvious on its face that authors are given exclusive rights so that they may be rewarded.
Why else are authors given exclusive rights if not so that they may be rewarded?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Typical, Mike. I concede the little point you fervently defended, but you don't address the bigger point I was making.
Of course you won't address the point. You always run away when I try and nail you down on your position.
And please don't lie again and say I never admit when I'm wrong. I've done it numerous times in the past, I did it here, and I'll gladly do it again.
The liar is you.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
My goodness. You're more needy that my toddler.
Hey, jackass: I'm a busy guy. Responding to one of your standard issue temper tantrums isn't exactly high on my list of priorities. Today I was away from my computer for large portions of the day doing things that matter. Me not responding to you is not me ignoring you. It's me having more important things to do than deal with your antics.
Typical, Mike. I concede the little point you fervently defended, but you don't address the bigger point I was making.
I was only making one point. You lied about my position, and I asked you to admit you were wrong. You bringing up totally extraneous points is really quite meaningless to me.
Of course you won't address the point. You always run away when I try and nail you down on your position.
Again, jackass: Responding to a little child Anonymous Coward who is too clueless to understand what's being discussed isn't exactly priority number 1.
And please don't lie again and say I never admit when I'm wrong. I've done it numerous times in the past, I did it here, and I'll gladly do it again.
I love the fact that you refuse to login and feel the need to use Tor because we might "reveal who you are" and then you complain that people don't know who you are. Geeze. You're so stupid that you contradict your own arguments.
The liar is you.
Hey, jackass. Where have I lied? I have not.
You're making shit up again. Now go back to school and maybe when you grow up you can play with the big boys.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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Re: Re: Re: Re: "Pirate Mike"
Mike has never said this.
I have argued with you plenty, and I never said that either.
What I have said (and I believe this is Mike's analysis as well) is that rewarding authors is not the purpose of copyright. And we're both right. The purpose is to benefit the public.
The method that copyright uses is to provide a limited monopoly to authors. But you shouldn't confuse the method with the purpose.
Moreover, I think we all agree that if the method actually works counter to its purpose, then it is the method that needs to be changed (or perhaps abolished).
In other words: the public good trumps the ability of authors to make money. If the public benefits by some change of law, and you lose money because of it, then too bad for you. More importantly, if the government's actions significantly harm the public, you can't justify them by claiming poverty.
The moment a copyright law takes from the public more than it gives, is the moment that law needs to go.
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Re: Re: Re: Re: Re: "Pirate Mike"
There are two purposes of copyright: to benefit the public and to benefit authors. Pretending like there's only one purpose is just plain silly--and wrong.
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Re: Re: Re: Re: Re: Re: "Pirate Mike"
The only reason copyrights exist is because of the charter to further advance science and useful arts with useful arts being scientific literature at the time of the writings, artists where never the focus of it.
And I want to see you try to show otherwise, maybe in later versions in the 60's some people wanted to try and input this new meaning but it is not in the original plan and never was about helping authors it was about public good.
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Re: Re: Re: Re: Re: Re: "Pirate Mike"
No, it is not. It is a Constitutional mandate that copyright exists "to promote the Progress of Science and useful Arts." That is its only purpose, and this is a settled fact.
I'll let the Congressional record speak for itself:
- HR Report No. 2222, 60th Congress, 2nd Session (1909)
And, of course, there's that Feist ruling that you like to misrepresent so much:
Still don't believe me? Let's ask Thomas Jefferson, one of the authors of the "Copyright Clause:"
- Thomas Jefferson to Isaac McPherson
Even Madison - the most pro-copyright of the Founders - phrased it as such, and cautioned against its expansion, for exactly the reasons I outlined:
- James Madison's "Detached Memorandum"
If you want details, here's a good read:
The Purpose of Copyright by Lydia Pallas Loren (Open Spaces magazine)
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Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
I would also like to point one thing out, since I'm sure either you or others will misinterpret what I'm trying to say.
I am not saying that authors shouldn't be rewarded. I am not even saying that copyright, in some form or another, is necessarily a bad idea.
Authors should be rewarded. But not because of any inherent "right" they have to hold a monopoly on their published works. They should be rewarded because it's in the public interest.
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"Not primarily for the benefit of the author, but primarily for the benefit of the public"
So it's NOT ONLY for the benefit of the public, but it's ALSO FOR THE BENEFIT OF THE AUTHOR. Copyright is for the benefit of author and public. It's really, really simple.
Thanks for supplying the quotes that prove my point.
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So it's NOT ONLY for the benefit of the public, but it's ALSO FOR THE BENEFIT OF THE AUTHOR.
Wow, seriously? The two sentences do not mean the same thing at all, and your sentence is falsified by pretty much every other sentence I quoted.
I thought maybe you just didn't understand copyright law. I guess I was wrong. What you don't understand is the English language.
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I thought maybe you just didn't understand copyright law. I guess I was wrong. What you don't understand is the English language.
Give me a break, Karl. I understand English perfectly well. Don't be an idiot/asshole.
If the purpose of copyright law is to: (1) primarily benefit the public, and (2) secondarily benefit authors, then it is incorrect to state that copyright does not exist to benefit authors.
It's intellectually dishonest to pretend that copyright law is not about benefiting authors. It clearly and obviously is. Do you not understand what the word "primarily" means? It does not mean "only."
Stopping lying, Karl. The fact that you won't admit this simple point shows how incredibly biased and unreasonable you are.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
I thought maybe you just didn't understand copyright law. I guess I was wrong. What you don't understand is the English language.
Give me a break, Karl. If the purpose of copyright law is to: (1) primarily benefit the public, and (2) secondarily benefit authors, then it is incorrect to state that copyright does not exist to benefit authors.
It's intellectually dishonest to pretend that copyright law is not about benefiting authors. It clearly and obviously is. Do you not understand what the word "primarily" means? It does not mean "only."
Stopping lying, Karl. The fact that you won't admit this simple point shows how incredibly biased and unreasonable you are.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
That is not the purpose of copyright law. Benefiting authors is not part of copyright's purpose, "secondarily" or not:
The purpose of copyright law is to benefit the public, by means of benefiting authors.
Pay attention to the Congressional record, especially the final sentence I quoted. The "balance" in copyright law is not between the rights of authors and the rights of the public. It is between two public interests: the public benefit of "progress of Science and the useful Arts," versus the public detriment of "the evils of the temporary monopoly."
Benefiting artists doesn't enter into the equation: Not that any particular class of citizens, however worthy, may benefit...
Now for the most part, the means and the method are in harmony: benefiting artists does, in fact, benefit the public. I don't think anyone is arguing against this. I am certainly not arguing that artists shouldn't benefit from copyright. (In fact, I would love it if the benefits were skewed a lot more towards artists, and a lot less towards publishers.)
I am only arguing - as the Congressional record explicitly states - that copyright law has the public benefit as its only yardstick. It is to everyone's benefit that artists are compensated. But the moment copyright law is not to everyone's benefit, is the moment the law must change.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Copyright law benefits the author because that in turn benefits the public. In other words, copyright law by design benefits authors and it benefits the public. It's really simple.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
While benefiting authors is not the primary consideration of copyright law, it certainly is a "secondary consideration" meant "definitely to grant valuable, enforceable rights to authors."
The Supreme Court right there explicitly says that benefiting authors is a purpose of copyright law. It's not the only purpose, it's not the primary purpose, but it is a purpose. To pretend otherwise is silly.
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By the way, you should really look up the original sources for that quote. Mazer v. Stein was, itself, quoting two different cases: United States v. Paramount Pictures, and Washingtonian v. Pearson. Let's take a closer look:
- United States v. Paramount Pictures
- Washingtonian v. Pearson
Just sayin'.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Which is exactly what I've been saying, so now we both agree.
See? That wasn't difficult.
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Here's another quote from that case:
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Yes, Karl, it's not the primary purpose, and yes it is the means. That does not mean that copyright by design exists in part to benefit authors. Give me a break with your silly denials. I expect intellectual dishonesty from Pirate Mike, but not from you.
Just above I said this: "Copyright law benefits the author because that in turn benefits the public."
To which you said this: "Which is exactly what I've been saying, so now we both agree."
I haven't changed what I've said. So how can I be wrong now but right then? Give me a break, Karl. And, please, pretty please, drop the fucking superiority act. You get all kinds of shit wrong with alarming regularity. Best you acknowledge that fact and act accordingly.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Sony also has a lengthy quote from Twentieth Century Music Corp. v. Aiken:
Sorry to keep going on about this, but it's hard to resist when the cases that you cite actually quote volumes of case law that prove you're incorrect.
I also find it hard to resist shooting fish in a barrel. Maybe I have a problem.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
I also find it hard to resist shooting fish in a barrel. Maybe I have a problem.
LMAO, Karl! One minute I'm wrong, the next I'm right, and then I'm wrong again. Yet I never changed my argument. You just can't keep it straight, can you?
"The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."
So, right there, it explains that copyright exists, in part, to benefit authors. It's really simple, Karl. Copyright, by design, benefits the public and it benefits authors. To pretend otherwise, is as I said above, silly.
Copyright grants authors exclusive rights as incentives. If those incentives didn't benefit authors, they wouldn't be incentives now would they? Copyright, by design and on purpose, benefits authors. Period. I've got a lot more quotes to prove it, but they're not necessary because it's abundantly obvious. Heck, even the quotes your finding don't deny it.
"Fish in a barrel"? Fuck you and your pretentiousness.
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If MediaNews assigns ownership to Righthaven, and then Righthaven grants to MediaNews an exclusive license, that makes Righthaven a licensor. Since when is a licensor not the "legal owner" under the Copyright Act?
I've yet to see one judge address this simple fact.
And it seems to me that Silvers is easily distinguishable based on this fact--it wasn't the bare right to sue that was transferred. Ownership was transferred as well.
Footnote 3 didn't persuade me: "Both the Fifth Circuit and Judge Bea based their expansive views on the belief that “the assignment of an accrued cause of action for copyright infringement to an assignee is nothing more than ‘simple assignment of a chose in action.’” Silvers, 402 F.3d at 902 (Bea, J., dissenting) (quoting Prather, 410 F.2d at 699-700). Although the historical common law rule prohibiting the assignment of a chose in action has largely disappeared in the context of contracts, Restatement (Second) of Contracts § 317 cmt. c (1981), the prohibition is much more robust in the context of torts. See, e.g. U.S. Fax Law Ctr., Inc. v. iHire, Inc., 362 F. Supp. 2d 1248, 1251-53 (D. Colo. 2005)."
The judge is basically saying that assignment of an accrued cause of action is not allowed in the copyright context, but that's simply not true. Speaking in generalities about the assignability of tort choses in action ignores the reality that copyright causes of action are assignable.
I dunno. I'm less than convinced by Judge Kane's analysis.
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Now if that isn't a shady attempt to endrun around copyright and contract law, then what logical purpose could this possibly have, save that of absolving Stephens Media from liability if it went tits-up?
It looks, to most people, like Stephens Media wanted to sue people without having its name attached, and as far as I can tell, that's pretty illegal.
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This is MediaNews Group (not Stephens Media), but the contracts are virtually the same. Nonetheless, Judge Kane did not rule that the contract was not "genuine in its intent." Ownership transferred to Righthaven, and then Righthaven granted an exclusive license. This gives Righthaven the right to sue for past infringements, and MediaNews the right to sue for present and future infringements. This isn't hard. Judge Kane had to do some real stretches of logic to pretend like Righthaven, as owner and licensor, isn't the "legal owner" under the Act.
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Also he is defending the late move by Righthaven to change the terms cosmetically to appear to hold all the rights when it does not hold them as a matter of fact since the true copyright holder can assert ownership of the copyrights transferred at any moment.
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501, which provides that “the legal or beneficial owner of an exclusive right under a copyright is
entitled, subject to the requirements of section 411, to institute an action for any infringement of that
particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Although this
language is straightforward, it does not expressly limit the right to sue for infringement to a legal
or beneficial owner of an exclusive right. See Silvers, 402 F.3d at 885. Because the statute is silent
on this issue, I must determine Congress’ intent in enacting this provision. I begin by analyzing the
constitutional origins of copyright law before examining the legislative history of the 1909 and 1976
Copyright Acts. See N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1282
(10th Cir. 2001) (“if the statutory language is ambiguous, a court can then resort to legislative
history as an aid to interpretation”)."
As the Judge noted, there is not a word in the law that regulates or says how copyright transfers should be regulated or interpreted, therefore he relied as a compass on the supposedly intents of congress when the law was created.
Meaning courts have latitude to interpret things in any way they like it unless told not so by the supreme court, which probably this want reach because Righthaven has no interest in pursuing this issue to the fullest since their only interest is merely financial and not the pursuit of justice.
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I dunno. I'm less than convinced by other AC's analysis.
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> Since when is a licensor not the "legal owner"
> under the Copyright Act?
Party A is the legal copyright owner of work W.
Party A licenses work W to Party B along with the right to sublicense to other parties.
Party B licenses work W to Party C.
Party B is now a licensor, but not the legal copyright owner. That answers your question.
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Righthave initially only had partial rights that say it was only granted the right to sue others and after being struck down by courts they changed the deal to mean they were granted full rights with a trigger to give back those rights, which is clearly just the same thing as before since the true rights holder still got the power to take back his or hers original rights that it transferred and could control Righthaven through the exercise of financial influence.
In what court that would ever be permitted is a mystery to real justice.
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He seemed to assume copyright owner and licensor must necessarily always be the same.
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As multiple lawyers and the judges have already explained, Righthaven is not the legal owner of the copyright, because at no point did it hold any of the exclusive rights under the Act. Why is it that pretty much everyone else in the world other than you and Righthaven seem to recognize that the transfer never actually happened?
I believe part of the problem is that you're treating "copyright" as a piece of property, when it is actually just a bundle of rights. And the intent of Congress is clear that you cannot leave bare the right to sue. In this case, all that was given to Righthaven was the right to sue, and thus there was no actual assignment of anything under copyright law.
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I believe part of the problem is that you're treating "copyright" as a piece of property, when it is actually just a bundle of rights. And the intent of Congress is clear that you cannot leave bare the right to sue. In this case, all that was given to Righthaven was the right to sue, and thus there was no actual assignment of anything under copyright law.
But a licensor owns what he licenses. If I own a copyright in a work, I can grant you an exclusive license for that work. That does not divest me of ownership of the work. I'm the licensor and you're my exclusive licensee. I can sue for infringements that happened prior to me granting you a license, and you can sue for infringements that happen thereafter. Copyrights aren't personal rights. One party can own the copyright while another party has an exclusive license to it. A licensor is a "legal owner" under the Copyright Act because that licensor has no been divested of his title by merely granting a license. That's all that matters here.
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All the citations so far disagrees.
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..is not the same as granting the 'copy' rights, nor the ability to enforce those rights by questionable means. And you claim we are focused on technicalities, while you only focus on their latest and greatest (which really only meets the late part of that criteria) rewording of what was and has always been a sham contract.
What about that part where they slip money back into the pocket of the licensor based solely on success of their lawsuits? that is just part of the standard licensing agreement?
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So far it appears that every judge confronted with this disagrees with you. That's okay, though I find it funny that on this same thread, you mock me for disagreeing with a judge -- when you're doing it to a much larger degree.
Anyway, the point that all of the judges have made which you seem to ignore (for reasons that I cannot quite figure out) is that Righthaven NEVER actually had ownership of the copyright because it NEVER had any of the 106 rights. The transfer was pretty clearly a sham because Stephens and MediaNews never -- not even for a second -- gave up any of the 106 rights at all. All it did was give Righthaven the bare right to sue.
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Anyway, the point that all of the judges have made which you seem to ignore (for reasons that I cannot quite figure out) is that Righthaven NEVER actually had ownership of the copyright because it NEVER had any of the 106 rights. The transfer was pretty clearly a sham because Stephens and MediaNews never -- not even for a second -- gave up any of the 106 rights at all. All it did was give Righthaven the bare right to sue.
But Judge Kane didn't rule that the contract was a sham or illusory--that's not what he based his opinion on. And he overlooked the fact that ownership clearly was transferred from MediaNews to Righthaven. Look, I couldn't care less about Righthaven. I think Gibson and Mangano are douches. But still, I think the judges' analyses have been flawed. Even if they're getting the right result (e.g., Righthaven doesn't have standing), it bothers me that they aren't getting there with the right reasoning.
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Not necessarily. I pointed out a counter example.
An owner can license a right to sublicense. The sublicensor is a licensor, but not an owner of the copyright.
I'm only pointing out that licensor is not the same as owner.
Company A makes WizBang software.
Company A only licenses the software to users through their dealer network.
A dealer is licensed with a right to license users that they sell a license to.
Hence, dealer is a licensor, but not a copyright owner of WizBang software.
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Source: http://www.copyright.gov/title17/92chap1.html#101
Nope I can't see it. Where in the law it says the right to sue others is a right covered by copyrights?
Righthaven wasn't a copyright owner it wa a licensee without legal protection from the law as it is writen today, if you have an issue with the law go take it to congress and change the laws.
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"(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"
So in the case of a legal acquire copy of something the right to distribute it passes to the one that bought that copy which makes a mess of digital distribution LoL
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Actually, it wasn't even that. To be a licensee, you have to be licensed the ability "to do or to authorize" one or more of those same rights.
Righthaven never had that. It wasn't a licensee, it wasn't an owner, it wasn't anything. It never held any ownership interest in any copyright whatsoever.
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I'm frustrated that judges don't see it that way too, since if that was the case every one who ever bought a CD, DVD, subscription would be a copyright owner and could not be sued according to your interpretation and I'm so very sorry that that is not the case.
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That makes no sense. When you buy a CD, you are only buying that physical copy. You are not buying the underlying copyrights.
By contrast, MediaNews explicitly transferred all right, title, and interest to Righthaven, subject to a license back. Title transferred to Righthaven.
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"(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending"
That "or other" implies that a sale is a transfer or ownership.
That is why copyrights exhaust when you are talking about people selling used goods. It could also be interpreted to mean transfer of rights since the ownership is not classified in there it depends on how the Judge looks at it, so it can mean that anyone who bought a song, book or any other type of media or service is entitled to full ownership of rights for that work depending on how the law is interpreted, of course the intent of congress was never that, nevertheless that is what it is saying there. So if ever the judges decide to change their minds congress will have to step in to clarify that.
Also Righthaven didn't have the right rights, which came only later when they amended the complaint with a fraudulent transfer of rights that didn't really transfer anything since the control was in the hands of the supposedly last owner of those copyrights.
Now tell me in which court did you ever saw any judge accept fraud in a tort case? I don't think any judge will take kindly and they will create a mess so the higher courts have to address it one way or another.
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"by sale or other transfer of ownership", that sentence means that a sale is a form of ownership transfer, but I couldn't find any reference in the law in question stating exactly what a sale should be interpreted as.
So I will ask, where are the text in the law stating that a sale is to be interpreted as the transfer of ownership of the physical product that embodies the work, I couldn't find that anywhere can you please correct me if I'm wrong?
Which to me could mean that if not otherwise clearly stated in the packaging of the product it means the sale of all rights and it would be legal under the current laws.
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Actually, no, this is not the reason. The reason is that "first sale" is explicitly allowed by law, under 17 USC 109:
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§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object."
Since there are no disclaimers of what a "sell" of a CD grants you or not, it is not clear what people are "buying", it is only the physical copy or the rights to distribute that copy?
Since you want to play by the book, people selling news, music, movies and books should put a big fat disclaimer on what are they selling really to the people or else face the ambiguities of the law.
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That's not true at all. Unless you have an express agreement in writing that you are buying the underlying copyrights (there is a writing requirement for the transfer of copyrights), you're only buying the copy.
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Maybe I missed, because I didn't see that in there.
Mostly what I saw was judges interpreting the law to be that, but the law as written doesn't.
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Here ya go:
- 17 USC 204(a)
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...and unless MediaNews assigned the legal right to "do or to authorize" any of the 106 rights, they never "assigned" anything whatsoever. There is no "ownership" apart from that.
At no point was Righthaven authorized to grant an exclusive license to anyone, MediaNews or not.
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Re: Trolling for Sympathy?
I've noticed you in other comment threads making similarly uninformed arguments for a variety of corporate criminal acts no matter what the topic... which leads me to wonder what ulterior motives you harber.
Maybe you should quit while you're behind.
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Re: Willful ignorance?
It is illegal to "assume" copyright for the sole purpose of filing lawsuits... which is what Righthaven does.
I've noticed your comments in other threads and am beginning to wonder what ulterior motives you have in supporting every instance of corporate criminality you stumble across?
Your newspeak makes not a lick of sense and although it may work for you in Teabagistan, this is the wrong forum to attempt a Palinesque word salad.
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P.S. I hate the way comments are sequenced on this site, but that's just me.
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The copryright infringers get a free pass based on technicality, and not on the legalities of their actions.
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It is almost a shame that more cases did not go to the merits so more uses could be declared fair uses (and thus not infringing). However, I can understand why the defendants would not want to spend the time or the money to prove their point.
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IOW, IP maximists will just find another way to scam the public and potentially break the law by at least trying to find new methods of breaking the intent/spirt of the the law while still following the letter of the law.
You are practically admitting to your disingenuous nature. The law isn't important, they'll just find loopholes, it's all about their personal profits.
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...ignoring the fact that, even aside from the ownership issues, several of those uses were found to be fair use under the law.
Righthaven has absolutely nothing whatsoever to do with stopping infringement. In fact, if there were no infringements, Righthaven would have no business at all. They have a fiduciary interest in creating infringements out of non-infringing uses.
Or they would, if their business was in any way legal.
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We will...
So long and thanks!
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Re: We will...
There, fixed that for you. Because we're a bunch of freetards and how dare they provide us with free entertainment and comic relief through their repeated stupidity. They're supporting our cause and going against their very principles that nothing ought to be free.
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"COPYTROLL: The amazing True Story of Righthaven"
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Maybe I'm not familiar with that phrase, but what does it mean to be not "long for this world"?
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http://lmgtfy.com/?q=not+long+for+this+world
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define not long for this world
http://www.google.com/search?q=define+not+long+for+this+world
When looking for meaning of words and phrases on Google, Bing, Yahoo and maybe Baidu too.
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http://archive.recapthelaw.org/cod/125162/
49.0 Order on Motion to Dismiss/Lack of Jurisdiction
Download (Thanks archive.org)
http://www.archive.org/download/gov.uscourts.cod.125162/gov.uscourts.cod.125162.49.0.p df
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"As evidenced by the caption, Righthaven also named It Makes Sense Blog as a party to
this action. It Makes Sense Blog is not a person or organized legal entity, but the domain name
of a website owned and operated by Mr. Wolf. It is not, therefore, capable of being sued and it is
dismissed as a party to this lawsuit. See, e.g., Aston v. Cunningham, 216 F.3d 1086 n.3 (10th
Cir. 2000) (dismissing Salt Lake County jail as a defendant because a detention facility is not a
person or legally created entity capable of being sued).
"
LoL
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Source: http://www.archive.org/download/gov.uscourts.cod.125162/gov.uscourts.cod.125162.49.0.pdf
That judge was not happy with Righthaven I take it.
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Updated
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Re: Updated
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WOW
I think I will listen to the judges and ignore the anonymous commentor who isn't a federal judge.
And finally if RightHaven has standing to sue, why aren't they appealing this to a higher court?
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The Judge disses copyright trolls in footnote
emphasis added
This footnote is critical, and it gets at one of the important side issues with Righthaven's suits, which is that copyright holders are granted a huge special litigation advantage, which is that they don't have to prove damages. Copyright holders damages are presumed to be hard to calculate so, instead, they are allowed to sue for magically presumed "statutory" damages of up to $150,000 per infringement instead of actual damages. That concept, though egregious when used against non-commercial, one-off infringers such as those in the Righthaven suits, at least has a theory behind the compensation for the copyright plaintiff (one grounded on the idea of lawsuits against large commercial infringers)which is that the rights holder did suffer actual damages. The idea of statutory damages is utterly mangled when used by someone who has nothing but the bare right to sue. For the bare right to sue there is *zero* justification for statutory damages. The damages are not just hard to calculate, they are non-exist ant. Righthaven's only rights (if they ever had any) are to sue. So, as one defendant pointed out, the only way someone cold infringe on Righthaven's rights is if they set up shop suing people for infringement of Righthaven's purported assignments.
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Re: The Judge disses copyright trolls in footnote
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RIAA suits
However, the fairness of statutory damages of up to $150,000 per infringement has been brought up by plaintiffs and judges in RIAA suits. By the RIAA's calculations, a 64 GB iPod with 16,000 pirated songs is worth 2.4 billion dollars. And the RIAA members annual losses due to piracy must be greater than the GDP of every nation on earth. (Clearly the US Government should empty out Fort Knox and replace all that gold with some iPods loaded with pirated music since it is many orders of magnitude more valuable than gold. Perhaps the US should back US currency with pirated music, the most valuable commodity on earth--well, according to damages assertions by RIAA lawsuits...)
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http://en.wikipedia.org/wiki/Charlatanism
http://en.wikipedia.org/wiki/False_billing
htt p://en.wikipedia.org/wiki/Forgery
http://en.wikipedia.org/wiki/Fraud_upon_the_court
People should nail Righthaven to the wall.
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Randazza, this is why I give Pirate Mike shit. He's a slimy snake that won't answer straightforward questions. He refuses to be pinned down on his beliefs because he knows he's wrong. He's knows he's lying. He knows that he's a sack of shit. You can defend him all you want, but that won't change the fact that he lies and manipulates with every single article he writes.
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Re:
Again, we get hundreds of comments a day. You come here every day and act like a little whiny child and never accept any answer I give. How is that a useful delegation of my limited time to respond to you, when the answers are out there. And, thankfully, because there are lots of smart folks out there who are quite competent at answering the questions you ask. See Karl above, for example, explaining my position quite nicely, and proving my point.
You seem to still confuse the means and the purpose. If you understood that basic difference you'd finally admit that I was right.
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Re: Re:
You seem to still confuse the means and the purpose. If you understood that basic difference you'd finally admit that I was right.
LMAO, chubby. You have to get others to do your arguing for you. Karl at one point says I don't understand English, then he says I'm right, then he finds quotes that he thinks prove me wrong. Sorry, Karl, but you can't keep your story straight.
The fact that copyright benefits authors is obvious. The incentives wouldn't be incentives unless they benefited those they intended to incentivize. Obviously, copyright exists in part to benefit authors. The fact that you feel the need to deny this simple truth speaks volumes about you, but says nothing of copyright law.
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