This is copyright misuse for the simple reason that other valid copyright defenses are not available. Off the top of my head, these include defenses like: merger doctrine; sweat of the brow; de minimis; non-copyrightable system, method of operation, process, or procedure; and scenes-a-faire.
Section 512(i)(1)(A) requires an assessment of the service provider's “policy,” not how the service provider treated a particular copyright holder. . . . A policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement.
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007).
The standard is whether the repeat infringer policy is reasonable, and it's only unreasonable if the ISP fails to respond when it has knowledge of infringement.
This is why this is all FUD. The ISPs already have safe harbor, and this agreement with the content industry does not alter that in a negative way. If anything, the ISPs' repeat infringer policies will be seen as more reasonable, precisely because they include details agreed to by the content industry.
The termination clause is for repeat copyright infringements, not repeated accusations of copyright infringement. But now the content industry is saying it's the same thing.
The ISPs' repeat infringer policies are not only for those adjudicated in a court of law to be infringers. Notices of infringement trigger the policies as well. Nice try though.
1. The DMCA requires that ISPs have a termination plan if they are going to have safe harbor.
2. This agreement does not include or affect the ISPs' termination plans, as the parties have explicitly said.
3. Some materials exist where the content industry reminds the ISPs about the DMCA general requirement of a termination plan.
And this is where the leap in logic occurs: "Translation: The content industry is staking its position that ISPs that don’t terminate subscribers after 5 or 6 alerts will lose their DMCA protection."
That simply does not follow. The ISPs already have termination plans in place--they already have the safe harbors. This agreement does not affect that. How could it? If anything, the fact that the content industry is not asking the ISPs to change their termination plans indicates their approval of them.
It's just more delusional FUD from the usual suspects.
But is there actually bad faith? I see only circumstantial evidence that's inconclusive. Gibson tried to spin everything rosy, sure, but that's not evil in and of itself.
The kind where it's "inexplicable by anything but." I give people the benefit of the doubt until they give me a reason not to. Perhaps that's a character weakness, but that's how I roll.
Judge Hunt has certainly indicated that he feels he's been lied to. I hope it was just a mistake on Mangano's part, but I couldn't say either way for sure obviously, since I wasn't there. I'm willing to give Mangano the benefit of the doubt absent proof that he intentionally lied, though.
Notice too how Mangano never mentioned Steve Gibson, even though up until a couple of days ago, he was an attorney of record on the suit. It's a glaring omission that I trust will not be overlooked by Judge Hunt.
So in a regular contingency contract between a lawyer and his client, the lawyer, though a third party to the lawsuit, is considered to have a direct, pecuniary interest in his client's lawsuit by virtue of the contract. Extending that same logic here, Stephens Media has a direct, pecuniary interest in this lawsuit, even though they are a third party. Make sense?
I think that Mangano could have made this mistake in good faith--and I see no reason to think otherwise. And he has already made a good faith effort to correct this mistake in every other Righthaven case. Still, I imagine the-not-happy-with-all-of-this Judge Hunt will inflict pain for this transgression.
And really, Mangano couldn't find an example from any court saying that when a party to a lawsuit has a deal with a third party to split in a recovery, that third party has only an indirect interest in the suit? Maybe the case law interpreting the local rules was nonexistent, but surely he could have found a court somewhere else saying this to help back up his claim. Or is there really no support for his contention? Weird.
6. Hope to get out of this without losing law license.
The in-house counsel are identified as Coons and Chu in a footnote. Mangano is saying that he didn't think that Stephens Media or the others had to be disclosed because their interest in the lawsuit was indirect. Righthaven, as owner of the right, was collecting the total judgment/settlement. And Stephens Media or whoever was only getting half of the profit as a separate contractual matter.
Is that argument going to fly? Mangano says there's a lack of case law defining what is meant by "direct, pecuniary interest." I don't think Judge Hunt will accept this though. If half of what Righthaven collects, after expenses, goes to their assignor, I can see how that would be considered a direct interest. But I also see how it could be considered an indirect one--I get what Mangano is saying.
As Mangano tells it, it appears to be another one of these gray areas--the problem for them is that we already know how Judge Hunt rules when there's any gray. Or worse for Righthaven, it's not a gray area at all and they simply got it wrong. Either way I don't seem them not getting sanctioned.
Right. And keep in mind that some judges in Nevada have said that Righthaven didn't actually get an ownership interest. I guess those judges might buy a champerty argument. I don't buy it, but they certainly might.
It doesn't look good for Righthaven, that much is certain.
Thanks, Chris. Another thing to keep in mind is that UPL laws and champerty laws are state laws, and they differ from state to state. In can be UPL or champerty in one state but not another.
The little reading I did on it made me think they might be considered a collection agency in some states but not others. That might be one defense they could argue. I'm not really sure how that works though.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re: Re: Re:
This is copyright misuse for the simple reason that other valid copyright defenses are not available. Off the top of my head, these include defenses like: merger doctrine; sweat of the brow; de minimis; non-copyrightable system, method of operation, process, or procedure; and scenes-a-faire.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re:
The standard is whether the repeat infringer policy is reasonable, and it's only unreasonable if the ISP fails to respond when it has knowledge of infringement.
This is why this is all FUD. The ISPs already have safe harbor, and this agreement with the content industry does not alter that in a negative way. If anything, the ISPs' repeat infringer policies will be seen as more reasonable, precisely because they include details agreed to by the content industry.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re:
The ISPs' repeat infringer policies are not only for those adjudicated in a court of law to be infringers. Notices of infringement trigger the policies as well. Nice try though.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
1. The DMCA requires that ISPs have a termination plan if they are going to have safe harbor.
2. This agreement does not include or affect the ISPs' termination plans, as the parties have explicitly said.
3. Some materials exist where the content industry reminds the ISPs about the DMCA general requirement of a termination plan.
And this is where the leap in logic occurs: "Translation: The content industry is staking its position that ISPs that don’t terminate subscribers after 5 or 6 alerts will lose their DMCA protection."
That simply does not follow. The ISPs already have termination plans in place--they already have the safe harbors. This agreement does not affect that. How could it? If anything, the fact that the content industry is not asking the ISPs to change their termination plans indicates their approval of them.
It's just more delusional FUD from the usual suspects.
On the post: Should Americans Have To Ask What They're 'Allowed' To Express?
Re: Re: Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re: Re: Re:
On the post: Righthaven: Blame Our Clueless Lawyer, But Don't Sanction Us, For Failing To Name Stephens Media As An Interested Party
On the post: Righthaven: Blame Our Clueless Lawyer, But Don't Sanction Us, For Failing To Name Stephens Media As An Interested Party
I think that Mangano could have made this mistake in good faith--and I see no reason to think otherwise. And he has already made a good faith effort to correct this mistake in every other Righthaven case. Still, I imagine the-not-happy-with-all-of-this Judge Hunt will inflict pain for this transgression.
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re:
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re:
The in-house counsel are identified as Coons and Chu in a footnote. Mangano is saying that he didn't think that Stephens Media or the others had to be disclosed because their interest in the lawsuit was indirect. Righthaven, as owner of the right, was collecting the total judgment/settlement. And Stephens Media or whoever was only getting half of the profit as a separate contractual matter.
Is that argument going to fly? Mangano says there's a lack of case law defining what is meant by "direct, pecuniary interest." I don't think Judge Hunt will accept this though. If half of what Righthaven collects, after expenses, goes to their assignor, I can see how that would be considered a direct interest. But I also see how it could be considered an indirect one--I get what Mangano is saying.
As Mangano tells it, it appears to be another one of these gray areas--the problem for them is that we already know how Judge Hunt rules when there's any gray. Or worse for Righthaven, it's not a gray area at all and they simply got it wrong. Either way I don't seem them not getting sanctioned.
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re: Re: Re:
It doesn't look good for Righthaven, that much is certain.
On the post: Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada
Re: Re:
The little reading I did on it made me think they might be considered a collection agency in some states but not others. That might be one defense they could argue. I'm not really sure how that works though.
Next >>