Righthaven Loses (Big Time) In Colorado As Well

from the another-one-bites-the-dust dept

Wed, Sep 28th 2011 7:18am — Mike Masnick

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

149 Comments

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BentFranklin (profile), 28 Sep 2011 @ 7:25am

Just reading the word equilibrium from a judge made me swoon a little bit inside.
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anonymous, 28 Sep 2011 @ 7:28am

Righthaven didn't worry about whether those that they sued had any money or not, so why should anyone worry about whether Righthaven has any money or not? if they say they haven't, they should be thoroughly investigated to find out where their money has gone and whether/if they have filed for bankruptcy (maybe under false pretenses). if the company has no money, how can they appeal? if they have no money, those that were/are running the company should be made to pay what is owed. perhaps then this type of company and their law suits will stop.
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fogbugzd (profile), 28 Sep 2011 @ 7:28am

Most of our modern copyright law is "in direct contradiction to the constitutionally mandated equilibrium upon which copyright law is based."
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Anonymous Coward, 28 Sep 2011 @ 7:34am

Maybe one of you hotshot, troll-busting lawyers can explain this to me: How is Righthaven not a "legal owner" of the copyright?

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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Anonymous Coward, 28 Sep 2011 @ 7:38am

Righthaven only proves that a certain method of assigning rights isn't working out properly for legal purposes. That shell will be dumped and other methods tried in the future.

The copryright infringers get a free pass based on technicality, and not on the legalities of their actions.
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Anonymous Coward, 28 Sep 2011 @ 7:47am

Re:
I'm sure the parts about rewarding authors for their labor and "balance" made Mike cringe. Let's post it here for everyone to enjoy:
The precepts of copyright law are rooted in the Constitution itself, which expressly grants Congress the power �To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .� U.S. Const. art. I, � 8, cl. 8. The primary goal of copyright law is to �secure the general benefits derived by the public from the labors of authors.� See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright � 1.03[A]. This goal is achieved by creating a limited monopoly in copyright, which provides an economic benefit to the authors and creators of creative works. As explained by the Supreme Court, the creation of this limited monopoly is justified by �the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors . . . .� Mazer v. Stein, 347 U.S. 201, 219 (1954); see also Eldred v. Ashcroft, 537 U.S. 186, 219 (�By establishing a marketable right to the use of one�s expression, copyright supplies the economic incentive to create and disseminate ideas�) (quoting Harper & Row, Publrs v. Nation Enters., 471 U.S. 539, 558 (1985)).

Thus, copyright law necessarily balances the derivative goal of rewarding the creative labor of authors of original works with the primary goal of promoting further creativity by allowing public access to copyrighted works. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), partially superseded by statute, Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860. This delicate balance underlies each successive iteration of the copyright regime, as Congress attempts to account for changing methods of communicating and disseminating ideas and expressions while maintaining the constitutionally mandated equilibrium. With these principles in mind, I turn to an examination of the relevant legislative history.
I love that quote from Mazer v. Stein. Pirate Mike pretends like this is not the law or the law's purpose, but the Supreme Court couldn't be anymore clear.

"[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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Pixelation, 28 Sep 2011 @ 7:48am

We will...
miss you, Righthaven. The entertainment you have provided has brightened many mornings for us all. We would love for you to continue with equally pointless trolling. Please return and sue some more. Make sure you pay your debts. If you have any sense of honor you will. We know it's not about the money for you, it's about what is Right.

So long and thanks!
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The eejit (profile), 28 Sep 2011 @ 7:50am

Re:
Because, originally, the contract drawn up between Stephens Media and Righthaven was deemed not genuine in its intent. Then it was amended so that all rights were transferred, THEN all but the right to sue was given back to Stephens Media in exchange for a share of all profits derived from all Righthaven lawsuits. When this came up in court, Stephens Media was not once mentioned as an interested party.

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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Anonymous Coward, 28 Sep 2011 @ 7:53am

There's a case in South Carolina that probably isn't long for this world.

Maybe I'm not familiar with that phrase, but what does it mean to be not "long for this world"?
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Anonymous Coward, 28 Sep 2011 @ 7:55am

Re: Re:
"Pirate Mike pretends like this is not the law or the law's purpose"

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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Josh in CharlotteNC (profile), 28 Sep 2011 @ 7:58am

Re: Re:
So what happens when copyright law has been so twisted by certain special interests that neither the authors/composers are benefiting, nor is the public benefiting?

Because that's where we're at now.
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Anonymous Coward, 28 Sep 2011 @ 7:58am

Re: Re: Re:
Oh, and BTW, where are all your trolling comments about how Righhell is right and all the judges are wrong.

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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Anonymous Coward, 28 Sep 2011 @ 7:59am

Re: Re: Re:
Exactly. The only ones benefiting are the middlemen, the publishers.
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Anonymous Coward, 28 Sep 2011 @ 7:59am

Re: Re: Re: Re:
(and the other middlemen, like the MPAA and RIAA, etc...).
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Anonymous Coward, 28 Sep 2011 @ 8:00am

Re: Re: Re: Re:
the subject *
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LoneJeff, 28 Sep 2011 @ 8:00am

Re: Re:
Ok jackass - reading comprehension much??? Re-read the beginning of that very sentence you so gleefully try to push in our face...

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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Squirrel Brains (profile), 28 Sep 2011 @ 8:00am

Re:
Well.... technically, they are not copyright infringers until they are held liable for infringement. There are good arguments that their actions are fair use and thus they are not infringers.

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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Anonymous Coward, 28 Sep 2011 @ 8:01am

Re: Re:
Because, originally, the contract drawn up between Stephens Media and Righthaven was deemed not genuine in its intent. Then it was amended so that all rights were transferred, THEN all but the right to sue was given back to Stephens Media in exchange for a share of all profits derived from all Righthaven lawsuits. When this came up in court, Stephens Media was not once mentioned as an interested party.

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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Anonymous Coward, 28 Sep 2011 @ 8:01am

Re:
That is right gold digger go try another handpick.
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Anonymous Coward, 28 Sep 2011 @ 8:03am

Recap.

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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Anonymous Coward, 28 Sep 2011 @ 8:06am

Re:
I don't think Judge Kane gives a crap about what you think. I know I don't.
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Squirrel Brains (profile), 28 Sep 2011 @ 8:07am

Re: Re: Re:
You seems to upset that the judge dares to call a duck a duck when he sees it. He is refusing to let Righthaven hide what they are truly doing behind legalese. There are several aspects of the deal that show that Righthaven was just being used as a liability shield for the original content owners.
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Anonymous Coward, 28 Sep 2011 @ 8:08am

Re: We will...
'The free entertainment you have provided has brightened many mornings for us all.'

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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Prisoner 201, 28 Sep 2011 @ 8:09am

Re: Re: Re:
I did not get his point either, other than possibly doing anything to get a "Pirate Mike" into a comment at TD.
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perplexed, 28 Sep 2011 @ 8:10am

Re: Re: Re: Re:
Oh, and BTW, where are all your trolling comments about how Righhell is right and all the judges are wrong.

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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Anonymous Coward, 28 Sep 2011 @ 8:11am

Who doesn't love Righthaven mistakes?

"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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Anonymous Coward, 28 Sep 2011 @ 8:12am

Re:
"Righthaven only proves that a certain method of assigning rights isn't working out properly for legal purposes. That shell will be dumped and other methods tried in the future."

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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Prisoner 201, 28 Sep 2011 @ 8:15am

Re:
Dying / soon to be dead.
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perplexed, 28 Sep 2011 @ 8:18am

Re: Re:
Noted. That's for clearing that up.
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Anonymous Coward, 28 Sep 2011 @ 8:21am

Re:
"Righthaven�s claim for infringement is based on 17 U.S.C. �
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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Anonymous Coward, 28 Sep 2011 @ 8:22am

Re: Re: Re: Re: Re:
You didn't even bother to read what the judge wrote, did you.

"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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Marc John Randazza (profile), 28 Sep 2011 @ 8:23am

Re: Re: "Pirate Mike"
Anonymous Coward wrote "Pirate Mike pretends like this is not the law or the law's purpose, but the Supreme Court couldn't be anymore clear."

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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DH's Love Child (profile), 28 Sep 2011 @ 8:27am

Re:
It means on one's deathbed or about to depart this world (earth) for another (heaven/hell/purgatory).
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Anonymous Coward, 28 Sep 2011 @ 8:30am

Quote:
CONCLUSION
It is apparent from the terms of the Assignment and the Copyright Assignment Agreement
that Righthaven lacks standing to institute an action for copyright infringement. Because the
jurisdictional issues raised in the Motion to Dismiss are intertwined with the merits of the case, I
convert Mr. Wolf�s Rule 12(b)(1) motion to a Rule 56 motion and GRANT him SUMMARY
JUDGMENT. Furthermore, in light of the need to discourage the abuse of the statutory remedies
for copyright infringement, I exercise my discretion under Section 505 of the Copyright Act and
ORDER that Righthaven shall reimburse Mr. Wolf�s full costs in defending this action, including
reasonable attorney fees.
Dated: September 27, 2011
BY THE COURT:
/s/ John L. Kane
Senior U.S. District Judge

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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perplexed, 28 Sep 2011 @ 8:31am

Re: Re: Re: Re: Re: Re:
Sigh. I read the opinion twice. If you want to point out the part you're referring to, please do. But just saying I missed the point isn't advancing the debate.

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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Anonymous Coward, 28 Sep 2011 @ 8:32am

Re:
only holding the rights to sue (until amended, then amended again), and repeatedly lumping together a bunch of unknown individuals, and going against court orders and still sending out settlement letters to people you should have not had information about. Sounds a lot more like barratry then the legal owner acting in their best interest.

I dunno. I'm less than convinced by other AC's analysis.
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Anonymous Coward, 28 Sep 2011 @ 8:34am

Re: Re: Re: Re: Re:
"And as always happens
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Anonymous Coward, 28 Sep 2011 @ 8:34am

Re: Re: Re: Re: Re: Re: Re:
Where they are clearly the owner?

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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Anonymous Coward, 28 Sep 2011 @ 8:34am

Re: Re: Re: "Pirate Mike"
It's not the "promote the progress" part that he is arguing, it's the "[E]ncouragement of individual effort by personal gain " - in other words, the making of money off of copyright is in fact what promotes the progress.

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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Anonymous Coward, 28 Sep 2011 @ 8:38am

Re: Re: Re: Re: Re:
No, Righthaven was assigned just part of the rights initially then they amended to say they where granted full rights with a trigger to give back the rights to old owner, how is that transfer?

It is clearly a sham.
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Mike Masnick (profile), 28 Sep 2011 @ 8:41am

Updated
Just added a quick update, as it appears Judge Kane is beginning the process of closing out all of the other Righthaven cases in CO, asking Righthaven to give him any reasons why they shouldn't all end like this one.
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perplexed, 28 Sep 2011 @ 8:42am

Re: Re: Re: "Pirate Mike"
Fair enough--to a degree. Mike does really think that quote from Mazer v. Stein is wrong, and he points to Feist as purported proof that the Supreme Court subsequently changed its mind. Mike has proven that he misunderstands Feist. He thinks it stands for the proposition that authors shouldn't be rewarded for their labor. It actually stands for the proposition that labor itself is not sufficient--there has to be originality. However, this does not mean that an author's labor should not be rewarded (as Mike says it means). It should. Any FUD that Mike creates about the Supreme Court's purported change of heart about whether authors should be rewarded for their effort was laid to rest in Eldred (as Judge Kane quotes).

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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Anonymous Coward, 28 Sep 2011 @ 8:42am

Re: Re: Re: Re: "Pirate Mike"
NO!

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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Gabriel Tane (profile), 28 Sep 2011 @ 8:42am

Re: 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." (emph added by me)
[citation needed]

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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Anonymous Coward, 28 Sep 2011 @ 8:44am

Re: Re: Re: Re: "Pirate Mike"
Let me fix that for ya:

Copyrights and patents in their current form don't promote or encourage progress.
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Mike Masnick (profile), 28 Sep 2011 @ 8:50am

Re: Re: Re: Re: "Pirate Mike"
He thinks it stands for the proposition that authors shouldn't be rewarded for their labor.

Can you please point out where I have said this?
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MrWilson, 28 Sep 2011 @ 8:53am

Re:
Let me google that for you:

http://lmgtfy.com/?q=not+long+for+this+world
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DannyB (profile), 28 Sep 2011 @ 8:56am

Re:
I'll take this one question:

> 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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Anonymous Coward, 28 Sep 2011 @ 8:56am

Re: Re: Re: Re: Re: "Pirate Mike"
Copyrights and patents in their current form don't promote or encourage progress.

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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perplexed, 28 Sep 2011 @ 9:01am

Re: Re:
But that's not what happened here. Here, Righthaven is owner and licensor--this makes them a "legal owner" under the Act, i.e., they have standing. It's really simple. Mental gymnastics are not necessary.
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Anonymous Coward, 28 Sep 2011 @ 9:05am

Re: Re:
You should really use:

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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Wayne, 28 Sep 2011 @ 9:07am

WOW
Lets see, some anonymous people say this or that, but how many Federal Judges have said Righthaven has no standing, or cannot sue because.....???

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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Scote, 28 Sep 2011 @ 9:16am

The Judge disses copyright trolls in footnote
This bit stood out to me:

"Furthermore, in light of the severe statutory damages for copyright infringement and the burdensome costs of litigation, a party sued for infringement, even a party with a meritorious defense, will often agree to settlement. Thus, a party with a bare right to sue may file numerous infringement actions of questionable merit with the intention of extorting settlement agreements from innocent users. This possibility becomes even more likely when the financial viability of the entity filing suit depends upon the proceeds from settlement agreements and infringement suits. Even though copyright law expressly provides for an award of costs and reasonable attorney fees to a party prevailing in its defense of a meritless infringement action, the economic realities of securing counsel and paying in advance the costs of litigation turns this remedy into a Potemkin Village. Both fundamentally and practically, the reality is at odds with the constitutional prioritization of public access to copyrighted work."

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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Goyo, 28 Sep 2011 @ 9:23am

Re: Re: Re: Re: Re: "Pirate Mike"
Can you please point out where I have said this?

I don't think so.
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Anonymous Coward, 28 Sep 2011 @ 9:25am

Re: Re: Re: Re: Re: Re: "Pirate Mike"
Well I thought you was talking about Mike there.

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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byte^me (profile), 28 Sep 2011 @ 9:26am

Re: Re: Re: Re: Re:
And the lawyers. Don't forget about the lawyers.
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Anonymous Coward, 28 Sep 2011 @ 9:30am

Re: Re: Re:
Only if you are blind.
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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Anonymous Coward, 28 Sep 2011 @ 9:31am

Re: Re: Re:
If transfer of limited rights to others grants copyright ownership every person who bought a CD,DVD or Bluray is now a full fledged copyright owner is that not true?
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Jay (profile), 28 Sep 2011 @ 9:37am

Re: The Judge disses copyright trolls in footnote
... I wonder if this would help out the Jammie Thomas or Tenenbaum case at all...
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Anonymous Coward, 28 Sep 2011 @ 9:37am

Re: Re: Re: Re:
I'm more upset that his insinuation that granting limited rights to others make someone somehow a full copyright owner is not wide spread that would be a boom for pirates everywhere.
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Squirrel Brains (profile), 28 Sep 2011 @ 9:42am

Re: Re: Re: Re: Re:
I think you are going to have to rephrase this for me.
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Anonymous Coward, 28 Sep 2011 @ 9:42am

Re: Re: Re: Re: Re: "Pirate Mike"
I looked for it Mike, but couldn't find it. I remember you giving your incorrect interpretation of Feist, me correcting you, and someone saying "crickets." I'll try and find it again later. 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 guess you won't fault Judge Kane's reasoning here because you agree with his outcome, right? Working backwards, as it were...
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Scote, 28 Sep 2011 @ 9:53am

RIAA suits
No, I don't think so. This Righthaven/Steve Gibson case was dismissed upon summary judgment for lack of standing--that is they didn't have the proper right to sue. That is because Righthaven and it's content partner tried to pull a fast one by making false claims of transferring the copyright to Righthaven. If the Chicago Trib had just hired Steve Gibson as an attorney and sued for copyright infringement under its own name, as the Plaintiff, then it would have had standing to sue. The RIAA plaintiffs have all been named parties to suits, so they don't have the same standing issue that Righthaven had (though there have been some questions of standing on various individual copyrights on individual songs, just not of the same nature as those in the Righthaven case.)

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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Anonymous Coward, 28 Sep 2011 @ 10:08am

Re: Re: Re: Re: Re: Re:
He is trying to defend Righthavens tactics of limited transfer of rights(just the right to sue), to mean that they got full status as normal copyright holders that hold all the rights and not just specific ones, which one can only assume that partial copyright transfers is the same thing as a full copyright transfer so consumers everywhere who got just partial rights transferred to them also should enjoy full copyright of the products they bought which means nobody is a pirate any more.

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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Mike Masnick (profile), 28 Sep 2011 @ 10:09am

Re:
Maybe one of you hotshot, troll-busting lawyers can explain this to me: How is Righthaven not a "legal owner" of the copyright?

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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Anonymous Coward, 28 Sep 2011 @ 10:10am

Re: Re: Re: Re: Re: Re: "Pirate Mike"
I don't think so.

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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Anonymous Coward, 28 Sep 2011 @ 10:17am

Re: Re: Re: Re: Re: Re: "Pirate Mike"
Exactly the copyright holder have the right and protection of the law, not a front, not a third party.

What part of that is so difficult for you to wrap your brain around?
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perplexed, 28 Sep 2011 @ 10:20am

Re: Re:
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.

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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The eejit (profile), 28 Sep 2011 @ 10:20am

Re: Re:
Am I the only one reminded of the Scammer aliens in Bender's Big Score?
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Anonymous Coward, 28 Sep 2011 @ 10:31am

Re: Re: Re: Re: Re: Re: Re:
If Righthaven was the owner then why would the agreement stipulate that Stephens Media be give 50% of any settlement or judgement?

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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pickMe! (profile), 28 Sep 2011 @ 10:34am

Re: Re: Re:
"So what happens when copyright law has been so twisted by certain special interests that neither the authors/composers are benefiting, nor is the public benefiting?"

Shit! Shit happens!
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Any Mouse (profile), 28 Sep 2011 @ 11:02am

Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Usually when someone says 'prove it,' they're saying you're lying.
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MrWilson, 28 Sep 2011 @ 11:09am

Re: Re: Re:
But that doesn't carry the "you-should-have-known-to-just-google-it" snark of the LMGTFY.com link.
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Prisoner 201, 28 Sep 2011 @ 11:35am

Re: Re: Re:
That's all that matters here.

All the citations so far disagrees.
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Any Mouse (profile), 28 Sep 2011 @ 11:49am

Re: Re: Re:
*whoosh*
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iamtheky (profile), 28 Sep 2011 @ 12:09pm

Re: Re: Re:
I can grant you an exclusive license for that work.

..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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Mike Masnick (profile), 28 Sep 2011 @ 12:19pm

Re: Re: Re: Re: Re: Re: "Pirate Mike"
I looked for it Mike, but couldn't find it.

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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Mike Masnick (profile), 28 Sep 2011 @ 12:24pm

Re: Re: Re:
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.

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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The eejit (profile), 28 Sep 2011 @ 12:32pm

Re: Re: We will...
There's a movie in there somewhere.

"COPYTROLL: The amazing True Story of Righthaven"
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Anonymous Coward, 28 Sep 2011 @ 2:19pm

Re: Re: Re: Re: Re: Re: Re:
I'm transferring ownership of my house to you.

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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DannyB (profile), 28 Sep 2011 @ 2:57pm

Re: Re: Re:
I was just answering one question asked by the Anonymous.

He seemed to assume copyright owner and licensor must necessarily always be the same.
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DannyB (profile), 28 Sep 2011 @ 3:03pm

Re: Re: Re:
> But a licensor owns what he licenses.

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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Anonymous Coward, 28 Sep 2011 @ 3:15pm

Re: Re: Re:
Care to point where is the law that says that a transfer of the right to sue makes anyone a copyright holder?

Title 17 - Chapter 1 - � 101. Definitions

�Copyright owner�, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

Title 17 - Chapter 1 - � 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(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;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

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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Anonymous Coward, 28 Sep 2011 @ 3:20pm

Re: Re: Re:
But a licensor owns what he licenses.

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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Anonymous Coward, 28 Sep 2011 @ 3:33pm

Re: Re: Re: Re:
Also I like to point out that the law as writen today seems to suggest that the "sale of copies is a ownership transfer of some kind.

"(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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Anonymous Coward, 28 Sep 2011 @ 3:39pm

Re: Re: Re:
I hope you work for copyright holders your incompetence is valued to the opposition counsels.
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hmm (profile), 28 Sep 2011 @ 4:06pm

Re:
because if they transferred ownership, then when righthaven went bankrupt the copyrights could be sold at auction to pay the other sides fees......something stephens media really doesn't want
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hmm (profile), 28 Sep 2011 @ 4:10pm

Re: Updated
Mike, you should ask Judge Kane to allow the "full" transfer of rights to righthaven.....so the other parties can close bankruptcy on righthaven and have ALL of stephens media copyrights sold at auction to pay fees!!!!!!
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Anonymous Coward, 28 Sep 2011 @ 4:35pm

Re: 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.

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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Anonymous Coward, 28 Sep 2011 @ 4:45pm

Re: Re: Re: Re:
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.

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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Anonymous Coward, 28 Sep 2011 @ 4:47pm

Re: Re: Re: Re: Re: Re: Re: Re:
I'm transferring ownership of my house to you.

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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Anonymous Coward, 28 Sep 2011 @ 4:49pm

Re: Re: Re: Re:
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.

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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Anonymous Coward, 28 Sep 2011 @ 7:03pm

Re: Re: Re: Re: Re:
The letter of the law disagrees with you.

"(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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Anonymous Coward, 28 Sep 2011 @ 7:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
No you he gave the impression of a transfer, the illusion of ownership for legal purposes to bypass legal requirements, that for me is fraud.
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Anonymous Coward, 28 Sep 2011 @ 7:07pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation. Defrauding people or entities of money or valuables is a common purpose of fraud, but there have also been fraudulent "discoveries", e.g., in science, to gain prestige rather than immediate monetary gain.

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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Anonymous Coward, 28 Sep 2011 @ 7:10pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Take your pick which ones should apply to Righthavens behavior?

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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Anonymous Coward, 28 Sep 2011 @ 7:26pm

I would use these:

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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Anonymous Coward, 28 Sep 2011 @ 7:54pm

Re: Re: Re: Re: Re:
Oh also:

� 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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Anonymous Coward, 28 Sep 2011 @ 8:03pm

Re: Re: Re: Re: Re: Re:
I'm sorry, but none of what you're saying makes any sense. Section 106(3) of the Copyright Act, which you quoted, refers to the distribution right. This gives the copyright holder the right to distribute copies of the copyrighted work. When you transfer ownership of a copy to another, you are NOT transferring ownership of the underlying right to them. They only have ownership of that physical copy. You do not seem to grasp the difference between a copy and a copyright.
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Anonymous Coward, 28 Sep 2011 @ 8:06pm

Re: Re: Re: Re: Re: Re:
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?

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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Karl (profile), 28 Sep 2011 @ 8:33pm

Re: Re: Re: Re: "Pirate Mike"
He thinks it stands for the proposition that authors shouldn't be rewarded for their labor.

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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Karl (profile), 28 Sep 2011 @ 8:57pm

Re: Re: Re: Re: Re:
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.

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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Karl (profile), 28 Sep 2011 @ 9:05pm

Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
To be honest, most of the people who I tend to agree with on copyright law also use the "balance" terminology.

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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Karl (profile), 28 Sep 2011 @ 9:16pm

Re:
If MediaNews assigns ownership to Righthaven

...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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Karl (profile), 28 Sep 2011 @ 9:32pm

Re:
The copryright infringers get a free pass based on technicality, and not on the legalities of their actions.

...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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Karl (profile), 28 Sep 2011 @ 9:42pm

Re: Re: Re: Re:
Righthaven wasn't a copyright owner it wa a licensee

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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Karl (profile), 29 Sep 2011 @ 12:31am

Re: Re: Re: Re: Re: Re:
That is why copyrights exhaust when you are talking about people selling used goods.

Actually, no, this is not the reason. The reason is that "first sale" is explicitly allowed by law, under 17 USC 109:
the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
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Anonymous Coward, 29 Sep 2011 @ 6:54am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I wonder if Righthaven ever played music in their offices without paying for a "performance license"....
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Anonymous Coward, 29 Sep 2011 @ 7:34am

Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
OK, Mike. I found it.

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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Anonymous Coward, 29 Sep 2011 @ 7:40am

Re: Re: Re: Re: Re: "Pirate Mike"
The purpose is to benefit the public.

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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Mike Masnick (profile), 29 Sep 2011 @ 9:34am

Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
OK, Mike. I found it.

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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Anonymous Coward, 29 Sep 2011 @ 10:40am

Re: Re: Re: Re: Re: Re: "Pirate Mike"
Your second one is a consequence of the first not a primary or secondary reason or even tertiary.

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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Anonymous Coward, 29 Sep 2011 @ 10:45am

Re: Re: Re: Re: Re: Re: Re:
Please point us to the law that requires any written consent to guarantee a transfer of rights.

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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Anonymous Coward, 29 Sep 2011 @ 10:46am

Re: Re: Re: Re: Re: Re: Re:
Yep you are right my bad.
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Anonymous Coward, 29 Sep 2011 @ 10:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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.

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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Anonymous Coward, 29 Sep 2011 @ 10:54am

Re: Re: Re: Re: Re: Re: Re:
You are transferring some kind of ownership, which is not clear.

"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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Anonymous Coward, 29 Sep 2011 @ 11:04am

Re: Re: Re: Re: Re: Re:
Sorry, Karl, but saying you asked a copyright lawyer doesn't settle the issue. And no, the judges that have analyzed the issue with Righthaven HAVE NOT ADDRESSED this issue. Show me where in Judge Kane's opinion he explains that licensors do not have standing to sue for past infringements once they grant to another an exclusive license. He doesn't say that.

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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Mike Masnick (profile), 29 Sep 2011 @ 11:19am

Re: 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

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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Anonymous Coward, 29 Sep 2011 @ 11:33am

Re: 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*.

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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Anonymous Coward, 29 Sep 2011 @ 7:46pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Crickets.

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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Mike Masnick (profile), 29 Sep 2011 @ 8:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Crickets.

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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Karl (profile), 29 Sep 2011 @ 9:22pm

Re: 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.

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:

The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings [...] but upon the ground that the welfare of the public will be served and progress of science and the useful arts will be promoted [...] Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people [...]

In enacting a copyright law Congress must consider, as has been already stated, two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outwieghs the evils of the temporary monopoly.
- HR Report No. 2222, 60th Congress, 2nd Session (1909)

And, of course, there's that Feist ruling that you like to misrepresent so much:

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."

Still don't believe me? Let's ask Thomas Jefferson, one of the authors of the "Copyright Clause:"

Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
- 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:

The Constitution of the U. S. has limited [monoplies] to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use. [...] But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.
- 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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Karl (profile), 29 Sep 2011 @ 9:37pm

Re: Re: Re: Re: Re: Re: Re:
Show me where in Judge Kane's opinion he explains that licensors do not have standing to sue for past infringements once they grant to another an exclusive license.

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 (profile), 29 Sep 2011 @ 9:56pm

Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
That is its only purpose, and this is a settled fact.

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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Anonymous Coward, 30 Sep 2011 @ 8:13am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
LMAO, chubby! You're too dishonest to even answer the question. Fucking classic. You have all the time in the world to call me names, but you can't answer a simple, straightforward question. Anything to not be nailed down on your position. Classic.
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Anonymous Coward, 30 Sep 2011 @ 8:15am

Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Karl, your quotes only prove my point.

"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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Anonymous Coward, 30 Sep 2011 @ 8:21am

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

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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Karl (profile), 30 Sep 2011 @ 10:31am

Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
"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.

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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Karl (profile), 30 Sep 2011 @ 11:25am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
We'll get to that point, but first let's clear the air about whether or not a licensor owns the thing he licenses.

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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Anonymous Coward, 1 Oct 2011 @ 10:02am

Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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.

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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Anonymous Coward, 1 Oct 2011 @ 10:15am

Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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.

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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Anonymous Coward, 1 Oct 2011 @ 10:24am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Let's do it your way, counselor. Show me that superior legal mind of yours.

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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Anonymous Coward, 1 Oct 2011 @ 11:57am

Mike, I'm still LOLing the fact that you won't answer the simple question that's been posed to you in this thread (the question is why you think copyright law does not exist "at all" to benefit authors). Your intellectual dishonesty is truly amazing. Only a slimy piece of shit would duck this simple question.

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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Karl (profile), 1 Oct 2011 @ 2:34pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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.

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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Anonymous Coward, 1 Oct 2011 @ 2:56pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
This really isn't hard, Karl. No need for the mental gymnastics.
The purpose of copyright protection, in the words of the Constitution, is to �promote the Progress of Science and useful Arts.� Copyright is based on the belief that by granting authors the exclusive rights to reproduce their works, they are given an incentive to create, and that �encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in �Science and the useful Arts.� The monopoly created by copyright thus rewards the individual author in order to benefit the public.
Sony Corp. v. Universal City Studios, , 464 U.S. 417, 477 (1984).

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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Anonymous Coward, 1 Oct 2011 @ 3:16pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Here's another Supreme Court quote for you.
The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. However, it is intended definitely to grant valuable, enforceable rights to authors, publishers, etc., without burdensome requirements; to afford greater encouragement to the production of literary (or artistic) works of lasting benefit to the world.
Mazer v. Stein, 347 U.S. 201, 219 (1954).

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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Karl (profile), 1 Oct 2011 @ 3:50pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Let's do it your way, counselor. Show me that superior legal mind of yours. Tell me exactly why the assignment isn't valid in the first place. Furthermore, point me to any district court's language holding this.

How's about I just quote legal minds that are superior to both of ours?

The Court finds the SAA in its original form qualifies the Assignment with restrictions or rights of reversion, such that in the end, Righthaven is not left with ownership of any exclusive rights. [...] These carveouts deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media's veto. [...]

The May 9, 2011 Clarification provides Righthaven with only an illusory right to exploit or profit from the Work[...] Stephens Media's power to prevent Righthaven from exploiting the Work for any purpose other than pursuing infringement actions is further bolstered by the Clarification's provision that every exploitation of the Work by Righthaven other than pursuing an infringement action without first giving Stephens Media notice constitutes irreparable harm to Stephens Media.
- Righthaven v. Hoehn

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. [...]

Righthaven argues that the SAA�s provisions, which necessarily include Section 7.2, do not alter the unambiguous language of the Assignment or limit the rights it obtained from Stephens Media in the Assignment. This conclusion is flagrantly false � to the point that the claim is disingenuous, if not outright deceitful. [...] In reality, Righthaven actually left the transaction with nothing more than a fabrication since a copyright owner cannot assign a bare right to sue after Silvers.
- 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:

The Court therefore concludes that Plaintiff is not a co-exclusive licensee due to the fact that: (1) he has no discretion to decide when an alleged infringer should be sued; (2) the Assignment Agreement, and Plaintiff's "interest" in Khosara, Khosara, would have been terminable if a lawsuit had not been filed within 180 days; (3) nearly every effort by Plaintiff to exploit Khosara, Khosara must be approved in advance by Sima; and (4) he has not offered facts that would permit the inference that he has anything beyond the right to negotiate compulsory mechanical licenses, which does not confer Plaintiff with the power to exploit any exclusive rights.
- Nafal v. Carter

The right to sue for an accrued claim for infringement is not an exclusive right under 106. [...] Exclusive rights in a copyright may be transferred and owned separately, but... [there are] no exclusive rights other than those listed in 106.
- Silvers v. Sybersound

the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.
- ABKCO v. Harrisongs (citing Eden Toys)

Once the copyright owner grants an exclusive license of particular rights, only the exclusive licensee and not the original owner can sue for later infringements of such rights.
- Althin CD Med.v. W. Suburban Kidney Ctr.

Hope that helps.
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Karl (profile), 1 Oct 2011 @ 3:54pm

Re: 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.

Which is exactly what I've been saying, so now we both agree.

See? That wasn't difficult.
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Karl (profile), 1 Oct 2011 @ 10:47pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Here's another Supreme Court quote for you.

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:

The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress:
"The sole interest of the United States, and the primary object in conferring the monopoly, lie in the general benefits derived by the public from the labors of authors."
- United States v. Paramount Pictures

The Act of 1909 is a complete revision of the copyright laws, different from the earlier Act both in scheme and language. It introduced many changes, and was intended definitely to grant valuable, enforceable rights to authors, publishers, etc., without burdensome requirements; "[in order] to afford greater encouragement to the production of literary works of lasting benefit to the world."
- Washingtonian v. Pearson

Just sayin'.
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Karl (profile), 1 Oct 2011 @ 10:53pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Sony Corp. v. Universal City Studios

Here's another quote from that case:

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved.
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Karl (profile), 1 Oct 2011 @ 11:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
Sony Corp. v. Universal City Studios

Sony also has a lengthy quote from Twentieth Century Music Corp. v. Aiken:

The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. 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.

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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Karl (profile), 1 Oct 2011 @ 11:32pm

Re: Re: Re: Re: Re: Re: Re: Re:
Please point us to the law that requires any written consent to guarantee a transfer of rights.

Here ya go:

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
- 17 USC 204(a)
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Mike Masnick (profile), 3 Oct 2011 @ 12:44am

Re:
Mike, I'm still LOLing the fact that you won't answer the simple question that's been posed to you in this thread

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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Anonymous Coward, 3 Oct 2011 @ 6:06am

Re: 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.

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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Anonymous Coward, 3 Oct 2011 @ 6:12am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
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.

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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Anonymous Coward, 3 Oct 2011 @ 6:17am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: "Pirate Mike"
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved.

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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kfreed, 22 Nov 2011 @ 6:53am

Re: Trolling for Sympathy?
Obviously, you're unfamiliar with copyright law. It is illegal to "assume" copyright for the sole purpose of filing lawsuits... which is what Righthaven does.

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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kfreed (profile), 22 Nov 2011 @ 7:09am

Re: Willful ignorance?
Rhetorical question of the week: Are you deliberately trying to misunderstand the issue?

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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kfreed (profile), 22 Nov 2011 @ 7:19am

Re: Re: Willful ignorance?
My reply was intended for Anonymous Coward (apt) re: "disagreement" with Judge Kane's ruling.

P.S. I hate the way comments are sequenced on this site, but that's just me.
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