The argument is really simple: The conduct "that drew the legal remedy in the first place" is criminal copyright infringement, and that is not "conduct with a significant expressive element."
An editorial is of course expressive and covered by copyright. Criminal infringement of the copyright of that editorial is not conduct with a significant expressive element. Simple.
Right, 5A procedural due process means effective notice and a meaningful hearing. The government posted notice of the seizure the same way they post notice in other forfeiture cases. Where does it say that in order to satisfy due process, Rojadirecta had to be "directly notified"? I don't believe that's the standard.
I understand the argument just fine, thanks. What I don't understand is why the DOJ (and ICE in particular) need to resort to outlandish claims and a total misreading of case law to actually make their point. I guess it's because they don't have any actually relevant case law to back them up. But then, why are they even doing this in the first place?
Could you remind me again why you don't think Arcara applies? I can't remember what your argument is. Is it the same as what Mike says in the article above?
Well, that's not exactly true. Mike also argues that a domain name can't possibly be property used to facilitate a crime. This argument has little merit.
He said that the PRO IP Act, which provides for the seizure of "all property" used to facilitate criminal copyright infringement, was somehow passed after promises/lies by those who passed it that it would only be used to seize physical copies of discs and the like. He's presented no evidence other than hearsay that this was actually the party line of those passing the Act. And a search of the congressional record on the matter doesn't support his position. Nor does he explain why they wrote the statute to say "all property" when purportedly it really means something else--something significantly less than what it actually says. It's a lot of tinfoil hat stuff as far as I can tell. Mike doesn't appear to question that the statute provides for such seizures, he just inexplicably argues that the statute "really" means something other than what it actually says.
It's not grasping at straws. The Arcara argument is the right argument for the government to be making because it's simply the right argument. It's not prior restraint because (as the Court found in Arcara) the conduct "that drew the legal remedy in the first place" was not "conduct with a significant expressive element."
I see. But that's where the argument loses me. I don't think they structured it so that only the bare right to sue was transferred. Ownership transferred as well. That's why I think Silvers is distinguishable. Silvers only says you can't transfer the bare right to sue. It doesn't say you can't have a contract where ownership transfers but there's also a license back.
I don't see how it's a sham. The reason you don't let married couples do it is because they are doing it for the purpose of not paying a creditor, i.e., not making the victim whole. That's against public policy.
The only difference here is that the wrongdoer is paying his debt to his victim's transferee. What public policy reason prevents this? What's important is that the tortfeasor pay for his wrong, not who he pays.
Don't worry. After Hunt's ruling today that Righthaven intentionally misrepresented things to the court, they've lost credibility in my eyes. I believe the judge.
It's amazing to watch since they have so many lawsuits ongoing and they're being attacked from all sides. Titanic indeed. It's like a turkey shoot at this point. Fish in a barrel.
I'm not sure the purpose matters in copyright law. I buy that purpose matters for UPL, but I'm not aware of how it matters in copyright. Where does it say that if you're assigning the copyright so the assignee can bring suit, then it's a sham?
I'll add too that I think that other circuits don't have the requirement that the underlying right be transferred with the right to sue. What I gather from this is that the plaintiff in such a case--a transferee of the bare right to sue--would have standing because he's stepping into his transferor's shoes. The injury in fact happened to his transferor, not to him. He has standing because he's standing in the shoes of someone who has standing, despite the fact that he otherwise would not have standing. Along those same lines is the notion that what matters is that the tortfeasor make good his wrong. That brings about balance in the tort. Who owns the underlying property that was infringed or the right to sue thereon doesn't matter. What matters is that the tortfeasor rights his wrong and that balance is restored.
I think it makes sense like this: the value of the copyright is diminished by the infringement; Righthaven owns a copyright that's been infringed; Righthaven brings suit for the infringement; the defendant makes Righthaven whole. I get the argument that the infringement is a value to Righthaven, but I don't see how that possibly matters.
I think you have to take a step back and look at the bigger picture. The copyright--the property itself--has been infringed. When the defendant makes the plaintiff whole, the copyright is no longer diminished. This is the idea behind the tort of copyright infringement. So what if ownership of the right changes hands between the infringement and the making whole? What's important is that the tortfeasor is only liable to make whole his victim once. Whether the plaintiff he makes whole is actually the victim, or his victim's assignee, makes no difference.
My understanding of it is a bit different. Certain rights are transferable, including the right to sue for copyright infringement. When you transfer to someone else your right to sue for infringement, and they exercise that right by bringing suit, they are suing in your place. They step into your shoes. So in this case, Righthaven steps into the shoes of their assignor, being Stephens Media or whoever. I'll admit I haven't researched this much and I don't know the specifics, but from what I've read this is the gist of it. I think the proper way to look at it is that Righthaven is standing there in their assignor's shoes, and if their assignor would have standing, then Righthaven necessarily does too.
I'm not sure you make the argument that Righthaven doesn't have standing over the copyright that they were assigned. An owner of a copyright has standing. It matters not if that owner granted another a license. If they didn't grant their exclusive licensee the accrued right to sue, it remains with the owner and may be exercised by them.
And yet the accrued right to sue is transferable and may be exercised by the transferee, as long as they are transferred the underlying right. Standing doctrine in IP works somewhat differently than regular Article III standing. None of the judges said there was no standing because there was no injury in fact, and I think for good reason. I should note too that the Ninth Circuit's holding in Silvers is not the universal rule, and many think the court got it wrong.
99.99% of legal observers? Just about the only written analysis of this I've seen has been by judges. Where's all of this other analysis?
If the decision was based on policy reasons, they should have said so. Instead, IMO, the rulings are based on bad reasoning. Perhaps the right answer is that Righthaven doesn't have standing. That's fine with me. I just want the reasoning that reaches that conclusion to be solid. And so far, it hasn't been.
It certainly looks like the end is near for Righthaven. I think the UPL argument will shut them down for good here shortly.
As far as what I said above about the defendants, let me elaborate. I think most of these defendants probably should be liable for infringement. I don't begrudge Righthaven for attempting to bring suit against them. It certainly appears though that Righthaven has not been keeping their nose clean. Judge Hunt ruled today that Righthaven intentionally misled the court. I have no sympathy for that.
Break copyright laws, I don't have sympathy. Lie to the court and conduct UPL, I don't have sympathy.
If it is UPL, then I do have sympathy for the defendants as being the victims of UPL. I won't be the least bit surprised if this ends in a big class action against Righthaven for a whole host of wrongs, and Righthaven will be put out of business. I also think that MediaNews and Stephens will be on the hook for what Righthaven has done, and rightfully so.
In the end, it appears that the standing issue really won't matter since I think the UPL argument and the claims against Righthaven are where this is all heading.
Nonetheless, I think it's elementary that a party can assign its copyright and accrued right to sue to another party, and then that first party can be granted a license back while leaving the second party with standing. Nothing in Silvers says that's not OK. Nothing in the Copyright Act says it's not OK.
Righthaven going down in flames is probably the right outcome here, but that doesn't change my mind that the standing and fair use rulings have been poorly reasoned and wrong.
You really have a binary view of things. I thing the precedents that exist show the judges here got it wrong. But the way it usually works with something that has no clear, obvious answer is that you try and analogize to precedents to find the best answer. I think the judges here did a bad job of analyzing things, and they seemed to be unaware of some basics as far as standing goes, as demonstrated in their reasoning. If I thought the reasoning was right, I would say so. But I don't. I think the reasoning is flawed, so that's what I'm saying. You insist that I'm wrong, but I don't agree. Cheers.
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An editorial is of course expressive and covered by copyright. Criminal infringement of the copyright of that editorial is not conduct with a significant expressive element. Simple.
On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
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Could you remind me again why you don't think Arcara applies? I can't remember what your argument is. Is it the same as what Mike says in the article above?
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On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
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http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=697
On the post: Managing IP Magazine Recognizes That Those Who Are Critical Of Intellectual Property Are Important To The Conversation
So you admit it then? Ha!
On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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I don't see how it's a sham. The reason you don't let married couples do it is because they are doing it for the purpose of not paying a creditor, i.e., not making the victim whole. That's against public policy.
The only difference here is that the wrongdoer is paying his debt to his victim's transferee. What public policy reason prevents this? What's important is that the tortfeasor pay for his wrong, not who he pays.
On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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It's amazing to watch since they have so many lawsuits ongoing and they're being attacked from all sides. Titanic indeed. It's like a turkey shoot at this point. Fish in a barrel.
On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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I think you have to take a step back and look at the bigger picture. The copyright--the property itself--has been infringed. When the defendant makes the plaintiff whole, the copyright is no longer diminished. This is the idea behind the tort of copyright infringement. So what if ownership of the right changes hands between the infringement and the making whole? What's important is that the tortfeasor is only liable to make whole his victim once. Whether the plaintiff he makes whole is actually the victim, or his victim's assignee, makes no difference.
On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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On the post: Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit
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If the decision was based on policy reasons, they should have said so. Instead, IMO, the rulings are based on bad reasoning. Perhaps the right answer is that Righthaven doesn't have standing. That's fine with me. I just want the reasoning that reaches that conclusion to be solid. And so far, it hasn't been.
It certainly looks like the end is near for Righthaven. I think the UPL argument will shut them down for good here shortly.
As far as what I said above about the defendants, let me elaborate. I think most of these defendants probably should be liable for infringement. I don't begrudge Righthaven for attempting to bring suit against them. It certainly appears though that Righthaven has not been keeping their nose clean. Judge Hunt ruled today that Righthaven intentionally misled the court. I have no sympathy for that.
Break copyright laws, I don't have sympathy. Lie to the court and conduct UPL, I don't have sympathy.
If it is UPL, then I do have sympathy for the defendants as being the victims of UPL. I won't be the least bit surprised if this ends in a big class action against Righthaven for a whole host of wrongs, and Righthaven will be put out of business. I also think that MediaNews and Stephens will be on the hook for what Righthaven has done, and rightfully so.
In the end, it appears that the standing issue really won't matter since I think the UPL argument and the claims against Righthaven are where this is all heading.
Nonetheless, I think it's elementary that a party can assign its copyright and accrued right to sue to another party, and then that first party can be granted a license back while leaving the second party with standing. Nothing in Silvers says that's not OK. Nothing in the Copyright Act says it's not OK.
Righthaven going down in flames is probably the right outcome here, but that doesn't change my mind that the standing and fair use rulings have been poorly reasoned and wrong.
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You really have a binary view of things. I thing the precedents that exist show the judges here got it wrong. But the way it usually works with something that has no clear, obvious answer is that you try and analogize to precedents to find the best answer. I think the judges here did a bad job of analyzing things, and they seemed to be unaware of some basics as far as standing goes, as demonstrated in their reasoning. If I thought the reasoning was right, I would say so. But I don't. I think the reasoning is flawed, so that's what I'm saying. You insist that I'm wrong, but I don't agree. Cheers.
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