I haven't seen anything like this in the comments, but presumably some of you out there took contract law. Anyone want to get on board with this: a lack of consideration on Stephens Media's part kills this agreement...?
Even going so far as acknowledging the written agreements in parts state transfer of some "copyright rights" to Righthaven, if you consider the entire SUBSTANCE of the arrangement here, what consideration has Stephens' given in this bargain? I.e., what have they really has given up (besides their sense of decency )?
Agreed. Righthaven throws that in for leverage, IMO. It's not really about them wanting the domain name. But still, I don't see anything *legally* wrong with them throwing it in.
It's "legally" wrong in how Righthaven addresses the district court in its pleadings. They way their Complaints are drafted request outright transfer, nothing about transfer in lieu of satisfaction of $ damages award.
Not that drafting their Complaints to request domain transfer in lieu of $ damages would help the matter - its simply not relief Congress has authorized for infringement, and should still get tossed in an early motion to dismiss (furthermore, I believe there are some 9th Cir. decisions that discuss how domains as intangible personal property aren't appropriate for satisfying a debt owed to a judgment creditor).
This is basic civil procedure and Righthaven could just be using it for what it is - a waste of time, something the defendant will have to pay his lawyer defend.
Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
What Righthaven is arguing is that the domain name could be awarded as a form of equitable relief or to satisfy a judgment, powers which the Copyright Act grants the court discretion to exercise.
If this is truly what they're after, then the appropriate time to address this, if at all, would be after a judgment has been entered against the defendant. The defendant should be given a chance to satisfy the judgment award through statutorily prescribed means (e.g., $$ damages); and the efficacy of domain transfer in this situation might still be suspect.
I don't suppose this will change your view about who's on the right side of the law here, but in light of your post, you should at least mention that the copyright originated with Stephens Media, which indicates (along with other evidence that recently surfaced) a sham transfer. It completely undercuts the basis for most of Righthaven's claims to date.
"you can only assign one of the specific rights designated in Section 106 of the Copyright Act."
This is just not true, and Silvers v. Sony Pictures recognizes that. You can, for example, assign the right to reproduce and the right to display, but not the right to create derivative works. You can assign a copyright "in whole or in part."
Are you misunderstanding syntax here? "One" does not reference an allowable amount; it's used to indicate the set of rights available for transfer. Reading the comment re: Sony in this light, it's spot on.
But what matters is substance, not form. The agreement states that Righthaven receives ownership in "whatever rights necessary to sue" (Aside - nebulous much? What's wrong with explicitly stating the § 106 rights that are being transferred? Methinks something nefarious be afoot)...
But in practice, Stevens retained whatever rights were purportedly transferred to Righthaven. Righthaven only sued - it wouldn't and contractually couldn't do anything with the copyright it "owned." Substance over form.
The 9th Circuit ruled the defendant converted (i.e., interfered with the owner's rightful possession/use/enjoyment/whatever to his property) Kremen's domain. So yes, Kremen got his domain back, but getting it back was not a "damage award"... it was the dude's property to begin with. All this has little bearing on this Righthaven issue...
What is important: Kremen and CRS indicate what type of property California classify a web domain as ("intangible personal property"), and Randazza points out that those courts wouldn't allow a web domain to be a damage award in a copyright case.
“Looking at CRS and Kremen, that's not at all what they say, nor are those even copyright cases.”
You are right on: CRS and Kremen are not copyright cases, however that is not a salient issue. As I read them, those cases support the proposition that domain names are intangible personal property not available for satisfaction of a judgment creditor’s award againt its debtor. See also Palacio Del Mar Home Owners Association, Inc. v. McMahon,174 Cal. App. 1386 (holding that a domain name registration cannot be levied upon under the general turnover statute in California). Although these three cases are interpreting California law, it seems that Randazza used them as authority because no Utah case speaks directly to this specific point.
“The very cases he cited indicate that the a court can order the turnover of a domain name in conversion cases.”
You say that CRS and Kremen actually indicate that a court may order the turnover of the domain name in a conversion kits. What also needs to be said here can be better said by the CRS court:
“California’s policy in treating domain names as property is thus accurately characterized as protecting the rightful holders of domain names . . . . Such a policy would protect plaintiffs in suit alleging conversion of the domain name, not a defendant allegedly converts a domain name.” CRS, 600 F.3d at 1144.
“Second, I disagree that the assignment is not clearly for all of the rights in the copyrighted work, including the accrued right to sue.”
And here’s what I think you’re wrong. At the very least, whatever rights Righthaven acquired via its agreement with the newspaper is ambiguous. For one I think if they really acquired all of them it easily could’ve been noted in the contract (hell, §106 only lists 6 exclusive rights of the copyright owner, 3 of which don’t even apply to the work at issue here).
Furthermore, as I mentioned earlier, the article at issue here remained for sale on the newspaper’s website after Righthaven claims it acquired all the rights requisite to sue. This does not suggest that Righthaven had the entire “bundle” it needed. I do understand that the transfer agreement between Righthaven and the newspaper says “all copyrights requisite,” but it seems the newspaper still possessed its right to reproduce and distribute its work.
I'm not an expert by any stretch - these issues are mere hobbies for me. But in light of the following, I still must respectfully disagree:
"In order to sue for copyright infringement, one must own the copyright or be the owner, assignee or licensee of an “exclusive” copyright right found in 17 U.S.C. § 106. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1145-46 (9th Cir. 2008); Silvers v. Sony Pictures Entmt., Inc., 402 F.3d 881, 887 (9th Cir. 2005) (“only owners of an exclusive right in a copyright may sue”). The right to sue is not considered an exclusive and intrinsic right, and can only be asserted by a bona fide owner, assignee, or licensee of an exclusive copyright right. Sybersound, 517 F.3d at 1146. In short, contrary to the entire premise of the Righthaven enterprise, copyright owners are not permitted to assign their rights to sue independent of their ownership of the work sued upon. Silvers, 402 F.3d at 884 (holding that the right to sue is not an exclusive, assignable right under 17 U.S.C. § 106)."
Amicus Brief at 2, lines 16-25. All that cited authority does a better job of convincing me...
The right to sue for direct infringement cannot be "unbundled" from those listed in 106, but at the very time when Righthaven claims to own the rights requisite to give it standing, the articles are still for sale, in this newspaper's case, on the newspaper's website.
This ability to sell the article = the right to reproduce and distribute...thus there has not been a transfer of all the 106 rights.
In theory, I imagine trolls believe: (a) enforcing the appropriate compensation owed per the patent helps drive the motivation for innovation (thus innovation itself), and (b) deterring misuse of another's IP keeps would-be infringers and true inventors focused on pure innovation, and not infringement litigation. Is there any support for this?
I also assume that there are trolls thats truly earned their bad reputation. Is this the exception or norm within this niche industry?
Perhaps someone is willing to educate me - I have a genuine interest but little to no expertise...
I can imagine the trollers' justifications for their endeavors, but what have their critics traditionally argued? I.e., how is trolling counterintuitive to a system that theoretically encourages innovation?
On the post: Police Claim That Allowing People To Film Them In Public Creates 'Chilling Effects'
Re: Re:
http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf
I live in Indy. I'm trying to be less cynical these days, so I'll remind all of you that the courts in your state do dumb shit too.
On the post: Unsealed Righthaven Agreement Has Other Judges Questioning Legitimacy Of Righthaven's Lawsuits
Anyone else take contract law?
Even going so far as acknowledging the written agreements in parts state transfer of some "copyright rights" to Righthaven, if you consider the entire SUBSTANCE of the arrangement here, what consideration has Stephens' given in this bargain? I.e., what have they really has given up (besides their sense of decency )?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
It's "legally" wrong in how Righthaven addresses the district court in its pleadings. They way their Complaints are drafted request outright transfer, nothing about transfer in lieu of satisfaction of $ damages award.
Not that drafting their Complaints to request domain transfer in lieu of $ damages would help the matter - its simply not relief Congress has authorized for infringement, and should still get tossed in an early motion to dismiss (furthermore, I believe there are some 9th Cir. decisions that discuss how domains as intangible personal property aren't appropriate for satisfying a debt owed to a judgment creditor).
This is basic civil procedure and Righthaven could just be using it for what it is - a waste of time, something the defendant will have to pay his lawyer defend.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Exclusive rights
IT'S STILL A GODDAMN DUCK!
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
If this is truly what they're after, then the appropriate time to address this, if at all, would be after a judgment has been entered against the defendant. The defendant should be given a chance to satisfy the judgment award through statutorily prescribed means (e.g., $$ damages); and the efficacy of domain transfer in this situation might still be suspect.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re:
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re:
Are you misunderstanding syntax here? "One" does not reference an allowable amount; it's used to indicate the set of rights available for transfer. Reading the comment re: Sony in this light, it's spot on.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re:
But in practice, Stevens retained whatever rights were purportedly transferred to Righthaven. Righthaven only sued - it wouldn't and contractually couldn't do anything with the copyright it "owned." Substance over form.
Who's being dishonest here?
On the post: Amicus Brief Calls Into Question The Legality Of Righthaven's Entire Business Model
Re: Re: Re: Re:
What is important: Kremen and CRS indicate what type of property California classify a web domain as ("intangible personal property"), and Randazza points out that those courts wouldn't allow a web domain to be a damage award in a copyright case.
On the post: Amicus Brief Calls Into Question The Legality Of Righthaven's Entire Business Model
Re: Re: Re:
You are right on: CRS and Kremen are not copyright cases, however that is not a salient issue. As I read them, those cases support the proposition that domain names are intangible personal property not available for satisfaction of a judgment creditor’s award againt its debtor. See also Palacio Del Mar Home Owners Association, Inc. v. McMahon,174 Cal. App. 1386 (holding that a domain name registration cannot be levied upon under the general turnover statute in California). Although these three cases are interpreting California law, it seems that Randazza used them as authority because no Utah case speaks directly to this specific point.
“The very cases he cited indicate that the a court can order the turnover of a domain name in conversion cases.”
You say that CRS and Kremen actually indicate that a court may order the turnover of the domain name in a conversion kits. What also needs to be said here can be better said by the CRS court:
“Second, I disagree that the assignment is not clearly for all of the rights in the copyrighted work, including the accrued right to sue.”
And here’s what I think you’re wrong. At the very least, whatever rights Righthaven acquired via its agreement with the newspaper is ambiguous. For one I think if they really acquired all of them it easily could’ve been noted in the contract (hell, §106 only lists 6 exclusive rights of the copyright owner, 3 of which don’t even apply to the work at issue here).
Furthermore, as I mentioned earlier, the article at issue here remained for sale on the newspaper’s website after Righthaven claims it acquired all the rights requisite to sue. This does not suggest that Righthaven had the entire “bundle” it needed. I do understand that the transfer agreement between Righthaven and the newspaper says “all copyrights requisite,” but it seems the newspaper still possessed its right to reproduce and distribute its work.
On the post: Amicus Brief Calls Into Question The Legality Of Righthaven's Entire Business Model
Re: Re: Re:
On the post: Amicus Brief Calls Into Question The Legality Of Righthaven's Entire Business Model
Re:
On the post: MIT's Tech Review Comes Out In Favor Of Patent Trolls
Re: Re: Trolls
In theory, I imagine trolls believe: (a) enforcing the appropriate compensation owed per the patent helps drive the motivation for innovation (thus innovation itself), and (b) deterring misuse of another's IP keeps would-be infringers and true inventors focused on pure innovation, and not infringement litigation. Is there any support for this?
I also assume that there are trolls thats truly earned their bad reputation. Is this the exception or norm within this niche industry?
On the post: MIT's Tech Review Comes Out In Favor Of Patent Trolls
Trolls
I can imagine the trollers' justifications for their endeavors, but what have their critics traditionally argued? I.e., how is trolling counterintuitive to a system that theoretically encourages innovation?
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