I said what I had to say. Any system can be abused. You could make that argument about anything. People will always act in bad faith. People will always overreact. Facebook is being dumb. Blame Facebook.
What's there to say? Copyright terms are too long and copyright inures automatically when a work is created. We'd probably be better off if that were different. Take it up with Congress.
And perhaps most obvious of all, if an exclusive licensee gets title ownership, then why does his licensor have the power to terminate his license under the Copyright Act?
There are five rights that may be licensed by the licensor. Each one works independently. The licensor may grant one or all of these rights to an exclusive licensee and retain title. You have this strange theory that once a licensor licenses that fifth right he loses his title ownership. That makes no sense, and you have not, nor can you, point to any authority that backs that assertion.
Here's something from a law journal article that helps to explain the Second Circuit's Morris v. Business Concept decision and the Ninth Circuit's Gardner v. Nike decision:
Interpreting section 201 of the Copyright Act of 1976, the court in Gardner v. Nike, Inc. held that Congress did not grant exclusive licensees the right to freely transfer the license, but rather only the protections and remedies the Copyright Act gives to the copyright owner with respect to the particular rights that are licensed. Such protections and remedies include the right of the licensee to sue and defend suits in its own name, but not the right to assign the license.
The Ninth Circuit was also influenced by the general policy consideration that reading into the Copyright Act the right of a licensee to freely transfer an exclusive license would be inconsistent with the copyright owner's ability to monitor the use of its copyright.
Gardner expressly rejected Patient Education Media as authority for the proposition that an exclusive copyright license may be assigned without the licensor's consent, largely because the relevant language in Patient Education Media was dicta. Moreover, Gardner correctly observed that Patient Education Media misquoted section 201 when it stated that an exclusive licensee receives all the “rights and protections” of the copyright owner (which could be read to include the right to assign), rather than the narrower terms “protection and remedies” (which seems to be limited to the right of the licensee to sue and defend suits in its own name).
Gardner is buoyed by the Second Circuit's holding in Morris v. Business Concepts, Inc. that an exclusive licensee of certain rights under a copyright cannot be considered a “copyright owner” under the Copyright Act. Although assignability was not at issue in the case, Morris involved a journalist who granted a magazine publisher the exclusive right to include the journalist's columns in several monthly issues of the publisher's magazine. The Second Circuit concluded that the magazine publisher was not the owner of the underlying copyright by virtue of the exclusive license; rather the license granted the publisher only the right to publish the columns in its magazines. The Morris court held that an exclusive copyright licensee is the owner only with respect to the particular rights that are licensed. As Gardner holds, such a licensee receives only the protections and remedies under the Copyright Act with respect to such rights but not the right to freely transfer the license. A court following Gardner and Morris would likely find that an exclusive copyright license that is silent on the issue of assignment is not assignable without the express consent of the licensor.
***
Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §§10.02[A], [B][4] (Matthew Bender & Co. 2001) (1963). One might think that since an exclusive copyright license is treated as an assignment under the copyright laws, the licensee thus has full title to the licensed copyright, including the right to assign such copyright. However, Nimmer contemplates that the assignment of an exclusive copyright license is a transfer of ownership for certain limited purposes only (e.g., standing to sue) and not a complete alienation of rights. Id. Thus, according to Nimmer, a licensor may grant an exclusive copyright license and, at the same time, restrict the licensee's ability to assign that exclusive copyright license by virtue of express contractual restrictions. Id. Put another way, the express contractual restrictions on assignment do not make an otherwise exclusive copyright license non-exclusive.
Neil S. Hirshman, Michael G. Fatall, Peter M. Spingola, Is Silence Really Golden? Assumption and Assignment of Intellectual Property Licenses in Bankruptcy, 3 Hastings Bus. L.J. 197, 200-02 (2007).
So we have the Second Circuit, the Ninth Circuit, and Nimmer explicitly saying that an exclusive licensee does not have complete title ownership of the rights they are licensed. In other words, the two most influential circuit courts in copyright law say this, and the preeminent authority on copyright law says this.
Add to that, I was checking out the U.S. Copyright Office's website, and sure enough, when you register your interest in a copyright as an exclusive licensee, the title owner is listed separately.
Mike and Karl, how do you reconcile this with your position?
Part of the problem is the absolutely ridiculous way Congress and the courts have increased third party liability, such that these service providers feel that as soon as anyone says something, they need to totally kill accounts. It's a systematic way to use intellectual property claims to stifle and censor speech. It's a huge problem that's only going to get worse.
That's a bit dramatic. Not sure the issue needs to be stretched out as a condemnation of IP in general. There's always going to be some fool that causes problems for others. Make the right phone call, and you get a SWAT team to kick in someone's door. Does that mean law enforcement is a huge problem? You can order 20 pizzas to someone's house. Does that mean the restaurant industry is about to supernova? Seems like you're just looking for any reason to slam IP, no matter how tenuous the argument may be. To be honest, it's been bordering on desperation lately. There isn't much that you don't jump at the opportunity to cry "censorship" about. Yes, facebook's policy is dumb. That doesn't mean the IP sky is falling and the First Amendment is being used as toilet paper. Give me a break.
The hosting company is required, again as spelled out in plain language in the law, to put back the material when the site owner files a conforming challenge, something very easy to do.
Does facebook have a page with a form where you can fill out a counternotice with ease? I didn't get the idea they did from reading the article on ars.
I think the real problem is that facebook locks out your account rather than just taking down the content in question and giving you notice of what happened.
I love it when you think you know who takes me seriously. In the last few weeks alone, I had a US Senator and a high level person in the White House ask me my opinion on particular points.
I had lunch with the Chief Justice of my state's Supreme Court last month. I had an in-depth discussion with the recently retired President of the Supreme Court of Denmark just a couple weeks ago. Big deal. I meant take your understanding of substantive copyright law seriously. I doubt they called you for your in-depth legal analysis of substantive legal issues.
Yes, you said what you had to say--which was nothing in the way of argument or proof. You simply declared that Karl proved his point. You refuse to even provide a link to the post that you think has Karl proving his point. You've made no arguments backed with any proof. Can't you just admit it? You've not answered any of the many points with proof that I've offered. You've just declared Karl to be the thread winner without any explanation. Of course people can read this thread and see that you've offered nothing but conclusory remarks. Produce the goods or admit you don't have them. Simple. I've offered lots of arguments and lots of proof. Where's yours?
Where is your proof? What goods? What arguments have you made in this thread? Where are they? Which posts of Karl's are you alluding to when you say Karl proved his point? What exact language from Nimmer do you think proves your point? What is your response to the Nike case from the Ninth Circuit I pointed to? What are your arguments? Where are your arguments? What is the basis for your arguments?
You haven't proved a thing in this thread. Point me to the proof. Simple. Just give me a link. Look through this thread and give me the link.
I just want you either (1) prove your point, or (2) admit that you can't prove your point. That's not foot-stomping, that's calling you out. Can't you just admit that you haven't proved a thing?
You say you have the goods. Prove it. Or just admit you don't have them. Simple.
No beating around the bush. No calling me a child. Either (1) say here are my arguments and here's my proof and give me the information, or (2) admit that you haven't the arguments or the proof. It's that simple.
And in case you're wondering why I and others can't take you seriously, it's exactly for these reasons. You make conclusory statements that you insist are correct, but you don't offer ANY proof of their validity. It's faith-based FUD. I've called you out on it in this thread, and now you're running away like a child. It's hilarious.
Stay and debate me, Mike, if you have the goods. I'll stay with this thread for as long as it takes. I won't run away like you. Prove me wrong, and I'll gladly admit that I'm wrong.
As it is, though, you haven't proved a single thing--and you know it. We all know it.
You haven't proved a thing. You haven't linked to any of Karl's posts that you purport to be proof. You haven't explained anything. You haven't cited any caselaw. Just admit it, Mike... you didn't prove anything.
Of course you're done with this thread. Anything to get out of admitting that you haven't proved a single thing.
Typical. You don't have the goods. That's OK. I never thought you did.
Tick-tock. Prove that your claims are not faith-based. Point me to Karl's "proof." Point me to the exact words from the Nimmer quote that back up your interpretation. Tick-tock.
The rights are not reserved. Ownership transfers to Righthaven and Stephens Media is granted an exclusive license. Every judge that has looked at the copyright assignment has agreed that ownership transferred to Righthaven. You're wishing and praying that once a judge hears about the exclusive license back, they'll magically make that transfer of ownership to Righthaven disappear. That makes no sense whatsoever. Owners can grant exclusive licenses, even to their assignors in the first instance.
YOU HAVE PROVIDED NO PROOF OF ANY OF YOUR CLAIMS.
I am not claiming the rights are reserved. I EXPLICITLY and REPEATEDLY said exactly the opposite.
Also, r.e. Gardner: The idea that an exclusive licensee can transfer rights is a pretty minor point, and the court doesn't actually say that Nike still "owned the title" to the rights.
MINOR POINT? I love how you brush off things that absolutely prove you wrong. It's a HUGE point. If the licensee didn't have full ownership, then why would they need their licensor's permission? You didn't answer that. The ONLY EXPLANATION is that it's because the exclusive licensee doesn't have FULL OWNERSHIP.
Whatever somebody writes in a journal doesn't trump the Ninth Circuit. What I quoted from the Ninth Circuit IS THE LAW in the Ninth Circuit.
YOU CONTINUE TO PROVE NOTHING.
Quote me caselaw, Karl. PROVE ANYTHING THAT YOU'VE SAID.
You cannot. And Mike, your faith-based follower, will always think that you're right. Why? Because he likes WHAT you're saying. It doesn't matter to him, apparently, that you've not backed it up.
FAITH-BASED. Both of you.
PROVE ANY OF YOUR CLAIMS, KARL. Stop telling us what you think the law is, and PROVE IT. WHERE IS YOUR PROOF????
If you read the Nimmer passage, he's pretty clearly talking about situations in which not all of the rights are assigned. You interpret him differently, but I don't think a court would agree with you.
Can you point me to the exact part of the passage you're talking about and explain to me exactly how you're interpreting it. It's hard to debate you when you're so vague.
I'm sorry, I've read the thread, and he provides plenty of proof. You just keep misreading things. It's kinda strange, actually.
Please provide links to the exact posts where Karl gives proof. You're being too vague.
Noticeably, you cut off the end of my post. Can you provide any proof? Claiming a bunch of lawyers agree with you is not proof. Exact court language that backs up your position, please. And if you can't provide that, then please admit it. You haven't explained or proven anything. If you're not up to it, I understand. But don't pretend like you've won the debate. You haven't proved a thing.
If an exclusive licensee is the title owner, then how do you explain the Ninth Circuit's holding here:
The plain language of § 201(d)(2) limits the rights of an exclusive licensee to those “protections and remedies” afforded in the 1976 Act. Section 201(d)(2) provides:(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.17 U.S.C. § 201(d)(2).
Appellants contend that, if a licensee of exclusive rights under the copyright is characterized by the 1976 Act as an “owner” of those rights under § 201(d)(2), then it must follow that such “ownership” carries with it an unrestricted right to freely transfer the license. However, Appellants' argument ignores the plain language of § 201(d)(2), which states that the owner of such exclusive rights is entitled only to “the protection and remedies” accorded the copyright owner under the 1976 Act. This explicit language limits the rights afforded to an owner of exclusive rights. Based on basic principles of statutory construction, the specific language of § 201(d)(2) is given precedence over the more general language of § 101 and § 201(d)(1). See, e.g., Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957) (“Specific terms prevail over the general in the same or another statute which otherwise might be controlling.”) (citation and internal quotation marks omitted).
Further, as stated by the District Court, “Congress was aware that prior to the 1976 Act, licensees could not sublicense their right in an exclusive license [without the express consent of the licensor]. With that knowledge in hand, however, Congress chose to limit exclusive licensees ‘benefits' under the 1976 Act to ‘protection and remedies.’ ”4 Gardner, 110 F.Supp.2d at 1287 (internal citation omitted).
In sum, both parties contend that the plain language of the 1976 Act supports their view. There are weaknesses in both of their arguments because neither the 1909 Act nor the 1976 Act explicitly address an exclusive licensee's right to transfer, absent the consent of the licensor. Although neither party's plain language arguments is dispositive, the fact that Congress chose not to explicitly address this issue in the 1976 Act and the limiting “protection and remedies” language of § 201(d)(2) indicates that the state of the law remains unchanged. Thus, we hold that the 1976 Act does not allow a copyright licensee to transfer its rights under an exclusive license, without the consent of the original licensor.
If an exclusive licensee truly owned the thing he licensed, then why would he possibly need his licensor's permission to sub-license the work? The answer is simple: An exclusive license is less than full ownership. The licensor retains title.
Still think Karl won the thread? I'll be awaiting your reply, with proof if you can muster it.
Uh, that's because you're wrong. Pretty clearly. Nimmer's discussion on the topic is about cases where less than all of the 106 rights have been transferred. If all of the 106 rights have been transferred, the licensor no longer has the copyright.
Nimmer didn't say that he was only talking about where less than all of the 106 rights were transferred. Nor did Nimmer say that once all of the rights have been transferred, the licensor no longer has the copyright. You're completely making that up.
Yes, I'm still quite confident that Karl won the thread. I think that you're misreading Nimmer, whose work I've always found to be inferior to Patry's anyway.
Karl won the thread even though he hasn't backed up any of his claims with proof? Weird. And just because you find Nimmer to be inferior doesn't prove your claim. Can you prove your claim? Neither one of you has offered a shred of proof.
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There are five rights that may be licensed by the licensor. Each one works independently. The licensor may grant one or all of these rights to an exclusive licensee and retain title. You have this strange theory that once a licensor licenses that fifth right he loses his title ownership. That makes no sense, and you have not, nor can you, point to any authority that backs that assertion.
I await your explanations.
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So we have the Second Circuit, the Ninth Circuit, and Nimmer explicitly saying that an exclusive licensee does not have complete title ownership of the rights they are licensed. In other words, the two most influential circuit courts in copyright law say this, and the preeminent authority on copyright law says this.
Add to that, I was checking out the U.S. Copyright Office's website, and sure enough, when you register your interest in a copyright as an exclusive licensee, the title owner is listed separately.
Mike and Karl, how do you reconcile this with your position?
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That's a bit dramatic. Not sure the issue needs to be stretched out as a condemnation of IP in general. There's always going to be some fool that causes problems for others. Make the right phone call, and you get a SWAT team to kick in someone's door. Does that mean law enforcement is a huge problem? You can order 20 pizzas to someone's house. Does that mean the restaurant industry is about to supernova? Seems like you're just looking for any reason to slam IP, no matter how tenuous the argument may be. To be honest, it's been bordering on desperation lately. There isn't much that you don't jump at the opportunity to cry "censorship" about. Yes, facebook's policy is dumb. That doesn't mean the IP sky is falling and the First Amendment is being used as toilet paper. Give me a break.
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Does facebook have a page with a form where you can fill out a counternotice with ease? I didn't get the idea they did from reading the article on ars.
I think the real problem is that facebook locks out your account rather than just taking down the content in question and giving you notice of what happened.
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I had lunch with the Chief Justice of my state's Supreme Court last month. I had an in-depth discussion with the recently retired President of the Supreme Court of Denmark just a couple weeks ago. Big deal. I meant take your understanding of substantive copyright law seriously. I doubt they called you for your in-depth legal analysis of substantive legal issues.
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You haven't proved a thing in this thread. Point me to the proof. Simple. Just give me a link. Look through this thread and give me the link.
I just want you either (1) prove your point, or (2) admit that you can't prove your point. That's not foot-stomping, that's calling you out. Can't you just admit that you haven't proved a thing?
You say you have the goods. Prove it. Or just admit you don't have them. Simple.
No beating around the bush. No calling me a child. Either (1) say here are my arguments and here's my proof and give me the information, or (2) admit that you haven't the arguments or the proof. It's that simple.
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Stay and debate me, Mike, if you have the goods. I'll stay with this thread for as long as it takes. I won't run away like you. Prove me wrong, and I'll gladly admit that I'm wrong.
As it is, though, you haven't proved a single thing--and you know it. We all know it.
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Of course you're done with this thread. Anything to get out of admitting that you haven't proved a single thing.
Typical. You don't have the goods. That's OK. I never thought you did.
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YOU HAVE PROVIDED NO PROOF OF ANY OF YOUR CLAIMS.
I am not claiming the rights are reserved. I EXPLICITLY and REPEATEDLY said exactly the opposite.
Also, r.e. Gardner: The idea that an exclusive licensee can transfer rights is a pretty minor point, and the court doesn't actually say that Nike still "owned the title" to the rights.
MINOR POINT? I love how you brush off things that absolutely prove you wrong. It's a HUGE point. If the licensee didn't have full ownership, then why would they need their licensor's permission? You didn't answer that. The ONLY EXPLANATION is that it's because the exclusive licensee doesn't have FULL OWNERSHIP.
Whatever somebody writes in a journal doesn't trump the Ninth Circuit. What I quoted from the Ninth Circuit IS THE LAW in the Ninth Circuit.
YOU CONTINUE TO PROVE NOTHING.
Quote me caselaw, Karl. PROVE ANYTHING THAT YOU'VE SAID.
You cannot. And Mike, your faith-based follower, will always think that you're right. Why? Because he likes WHAT you're saying. It doesn't matter to him, apparently, that you've not backed it up.
FAITH-BASED. Both of you.
PROVE ANY OF YOUR CLAIMS, KARL. Stop telling us what you think the law is, and PROVE IT. WHERE IS YOUR PROOF????
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Can you point me to the exact part of the passage you're talking about and explain to me exactly how you're interpreting it. It's hard to debate you when you're so vague.
I'm sorry, I've read the thread, and he provides plenty of proof. You just keep misreading things. It's kinda strange, actually.
Please provide links to the exact posts where Karl gives proof. You're being too vague.
Noticeably, you cut off the end of my post. Can you provide any proof? Claiming a bunch of lawyers agree with you is not proof. Exact court language that backs up your position, please. And if you can't provide that, then please admit it. You haven't explained or proven anything. If you're not up to it, I understand. But don't pretend like you've won the debate. You haven't proved a thing.
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If an exclusive licensee truly owned the thing he licensed, then why would he possibly need his licensor's permission to sub-license the work? The answer is simple: An exclusive license is less than full ownership. The licensor retains title.
Still think Karl won the thread? I'll be awaiting your reply, with proof if you can muster it.
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Nimmer didn't say that he was only talking about where less than all of the 106 rights were transferred. Nor did Nimmer say that once all of the rights have been transferred, the licensor no longer has the copyright. You're completely making that up.
Yes, I'm still quite confident that Karl won the thread. I think that you're misreading Nimmer, whose work I've always found to be inferior to Patry's anyway.
Karl won the thread even though he hasn't backed up any of his claims with proof? Weird. And just because you find Nimmer to be inferior doesn't prove your claim. Can you prove your claim? Neither one of you has offered a shred of proof.
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