So you believe that fair use is a constitutional right then? I don't have an opinion either way. I've never given it much thought. I was just throwing it out there...
That doesn't mean it's a right necessarily. Could Congress repeal the section of the Copyright Act that provides for fair use? Could Congress enact anti-fair use legislation?
But I still don't understand his point. How was copyright law not intended to create a permission society? To me, that sounds like saying laws against murder weren't created to prevent a murderous society.
This is why the judge declared that Righthaven was not the title holder of the rights in this case.
No judge declared any such thing. Righthaven was ordered to make a filing. They haven't even filed it yet. So obviously, the judge hasn't ruled on a filing that hasn't been filed yet.
As to the rest of your post... That's not the difference between a licensee and assignee that I was thinking of. No matter, let's stick to the bigger issue.
So if I understand you correctly, you are saying that a grant of exclusive rights without reservation of some right or subject to some condition is actually a transfer of title. Can you point me to some caselaw that explicitly says this.
Righthaven did not transfer title back to Stephens Media when they granted Stephens Media the exclusive rights to "exploit" the work. That they did not intend to do so is clear from the face of the agreements.
You are arguing that title transferred back to Stephens Media by operation of law. Prove it.
Permission society is the exact opposite of what copyright law is supposed to create.
I'm curious what you mean by this. It seems to me that copyright law is set up for the express purpose of requiring permission. Or are you speaking solely about fair use?
You see, this is my problem with you and Mike. I take the time and effort to explain things to you both, and neither one of you acknowledges my efforts or concedes the point.
Do you still think Karl's won the thread, Mike? Would it kill you to acknowledge that maybe, just maybe, Karl doesn't know what he's talking about?
The same arguments, involving a similar set of facts, could have been accepted by another court. But you wouldn't know because you "claim" to have never read their arguments.
Can you point me to one court that has agreed with Righthaven that the assignment is a sham? Nope. Trust me, the day that happens, you'll hear about it.
I do know that the EFF and others have made the sham argument before while only looking at the individual copyright assignments. No court has ever agreed, despite all the foot-stomping by the defendants. What the EFF and others have claimed to be unclear, courts have held to be perfectly clear.
No court that I know of has ruled yet on whether the Strategic Alliance Agreement changes things. Hopefully we'll get a ruling soon.
How would you know that no court has agreed with EFF's sham argument if you haven't read it?
I can not have read the argument and yet still know that no court has agreed with the EFF. Those things aren't mutually exclusive. To my knowledge, not one single court has ever agreed with the EFF that the assignment is a sham. Don't you think we would have heard about it if they did?
They appear to argue that it's a sham because title to the copyrights does not pass to Righthaven. I completely disagree. The EFF's analysis there is quite thin.
I'm curious exactly what makes it a sham in your opinion. Sham is not a term of art, that I'm aware of, and I don't understand exactly how you are using that word. What precisely makes it a sham?
Got a link to the filings you're talking about? We can take a look at the arguments.
Has any court ever agreed with EFF's "sham" arguments? Serious question. I'm not aware of any court agreeing. If that's the case, why do you think that is?
And by the way, I'm here to discuss the legal aspects of it all. I couldn't care less about Righthaven. Sometimes I'm playing Devil's Advocate, yes, but that's just because I'm trying to eke out the exact legal arguments on both sides. If what Righthaven is doing is legally wrong, I want to understand the exact legal argument why.
He argues, as you do, that an asignee with no interest in the copyright itself should have standing to sue.
I have never argued this. Never. I suspect the problem is that you don't grasp the concepts enough to understand my posts. My argument is, and always has been, that an assignee with no interest doesn't have standing. But with Righthaven, they have an interest so that rule does not apply to them. What interest? Title ownership of the copyrights. How'd they get it? Stephens Media assigned it to them. Since Righthaven has this interest, they have standing.
You still don't get the difference between the title owner and the exclusive licensee. Righthaven holds the title, Stephens Media holds the exclusive license. While both may be regarded as the "copyright owner" for purposes of protections and remedies under the Copyright Act, technically speaking, the exclusive licensee is not the copyright owner since the licensee does not hold title.
There is a difference between an exclusive licensee of some rights, and an exclusive licensee of all rights under copyright law. The former is called a "licensee," the latter an "assignee." The latter - an exclusive licensee of all rights - is considered the copyright owner. This is supported in every case I've read.
First of all, that's not the difference between a licensee and an assignee. You might want to read up on that since you've got that wrong.
Moving on to your main claim: You say that Fantasy v. Fogerty backs up your assertion that an exclusive licensee of all rights is the copyright owner. You're misreading Fogerty, and I still don't think you grasp the terminological issue here.
The confusion is the use of the term "copyright owner." Both the exclusive licensee and the copyright owner are treated as the "copyright owner" for purposes of protections and remedies under the Act. However, that does not mean that an exclusive licensee IS the copyright owner, i.e. holds the title to the copyright. The confusion is understandable.
Let's look to Nimmer:
An exclusive licensee is entitled only to "the protection and remedies accorded to the copyright owner ..." 17 U.S.C. 201(d)(2). "The copyright owner" in this context must refer to the licensor, not the licensee, notwithstanding the definition in 17 U.S.C. 101 whereby the "'copyright owner,' with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right." If "the copyright owner" in this context referred to the licensee, the sentence would be tautological. That is, it would mean: "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 owner of such particular exclusive right]."
So, in other words, despite what it says in Section 101, where it says that both the licensor and the licensee can be regarded as the "copyright owner," Section 201(d)(2) leads to the inescapable conclusion that the "copyright owner" and the "exclusive licensee" are different parties.
Therefore, for purposes of rights and remedies under the Act, it's OK to consider both the licensor and the licensee as the "copyright owner." But, it's important to keep in mind that the licensee is not the true copyright owner, i.e., the owner of the title to the work. This distinction is critical in other contexts such as publication and notice.
As far as Fogerty goes, it does no work for your argument.
Defendant Fogerty granted his exclusive rights in the work to the plaintiff in exchange for a sales percentage and royalties. Fogerty became the beneficial owner and the plaintiff became the copyright owner. The part you're missing is that Fogerty divested himself of legal TITLE to the work. He didn't just grant an exclusive license--he granted title ownership.
Says the court:
A "beneficial owner" is defined as including "an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."
Fantasy, Inc. v. Fogerty, 654 F. Supp. 1129 (N.D. Cal. 1987).
The plaintiff became the copyright owner, i.e., the title owner, because he was granted more than just a license by Fogerty--he was granted title. Since Fogerty didn't just grant an exclusive license, that case does nothing to support your argument.
As promised, I said point me to the caselaw you're reading and I'll explain how you're reading it wrong.
How about a deal? I pick the top five most heinous errors of yours in this thread and conclusively prove you wrong. Once done, you promise to stop posting about substantive copyright law. Deal?
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re: Re: Re:
On the post: Is It Rude To Link To Someone Without First Asking Permission?
Re: Re:
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re:
No judge declared any such thing. Righthaven was ordered to make a filing. They haven't even filed it yet. So obviously, the judge hasn't ruled on a filing that hasn't been filed yet.
As to the rest of your post... That's not the difference between a licensee and assignee that I was thinking of. No matter, let's stick to the bigger issue.
So if I understand you correctly, you are saying that a grant of exclusive rights without reservation of some right or subject to some condition is actually a transfer of title. Can you point me to some caselaw that explicitly says this.
Righthaven did not transfer title back to Stephens Media when they granted Stephens Media the exclusive rights to "exploit" the work. That they did not intend to do so is clear from the face of the agreements.
You are arguing that title transferred back to Stephens Media by operation of law. Prove it.
On the post: Is It Rude To Link To Someone Without First Asking Permission?
I'm curious what you mean by this. It seems to me that copyright law is set up for the express purpose of requiring permission. Or are you speaking solely about fair use?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Why should I go on explaining your errors to you, Karl, if you don't even recognize my efforts?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re:
You see, this is my problem with you and Mike. I take the time and effort to explain things to you both, and neither one of you acknowledges my efforts or concedes the point.
Do you still think Karl's won the thread, Mike? Would it kill you to acknowledge that maybe, just maybe, Karl doesn't know what he's talking about?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Re: Re: FUDbuster = harassive argument tactics
Considering how little effort you've put into this debate, I'm surprised you're already worn out.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Re: Re: RIghthaven
Can you point me to one court that has agreed with Righthaven that the assignment is a sham? Nope. Trust me, the day that happens, you'll hear about it.
I do know that the EFF and others have made the sham argument before while only looking at the individual copyright assignments. No court has ever agreed, despite all the foot-stomping by the defendants. What the EFF and others have claimed to be unclear, courts have held to be perfectly clear.
No court that I know of has ruled yet on whether the Strategic Alliance Agreement changes things. Hopefully we'll get a ruling soon.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: FUDbuster = harassive argument tactics
I can not have read the argument and yet still know that no court has agreed with the EFF. Those things aren't mutually exclusive. To my knowledge, not one single court has ever agreed with the EFF that the assignment is a sham. Don't you think we would have heard about it if they did?
Looking at the EFF article: http://www.eff.org/deeplinks/2011/04/why-righthaven-s-copyright-assignment-sham-and-why
They appear to argue that it's a sham because title to the copyrights does not pass to Righthaven. I completely disagree. The EFF's analysis there is quite thin.
Their filing has more heft, but I disagree with much of it: http://www.eff.org/files/filenode/righthaven_v_dem/DUSuppmotion.pdf
I'm curious exactly what makes it a sham in your opinion. Sham is not a term of art, that I'm aware of, and I don't understand exactly how you are using that word. What precisely makes it a sham?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: FUDbuster = harassive argument tactics
Has any court ever agreed with EFF's "sham" arguments? Serious question. I'm not aware of any court agreeing. If that's the case, why do you think that is?
And by the way, I'm here to discuss the legal aspects of it all. I couldn't care less about Righthaven. Sometimes I'm playing Devil's Advocate, yes, but that's just because I'm trying to eke out the exact legal arguments on both sides. If what Righthaven is doing is legally wrong, I want to understand the exact legal argument why.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I have never argued this. Never. I suspect the problem is that you don't grasp the concepts enough to understand my posts. My argument is, and always has been, that an assignee with no interest doesn't have standing. But with Righthaven, they have an interest so that rule does not apply to them. What interest? Title ownership of the copyrights. How'd they get it? Stephens Media assigned it to them. Since Righthaven has this interest, they have standing.
You still don't get the difference between the title owner and the exclusive licensee. Righthaven holds the title, Stephens Media holds the exclusive license. While both may be regarded as the "copyright owner" for purposes of protections and remedies under the Copyright Act, technically speaking, the exclusive licensee is not the copyright owner since the licensee does not hold title.
Got it? Care to concede the point?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Moving on to your main claim: You say that Fantasy v. Fogerty backs up your assertion that an exclusive licensee of all rights is the copyright owner. You're misreading Fogerty, and I still don't think you grasp the terminological issue here.
The confusion is the use of the term "copyright owner." Both the exclusive licensee and the copyright owner are treated as the "copyright owner" for purposes of protections and remedies under the Act. However, that does not mean that an exclusive licensee IS the copyright owner, i.e. holds the title to the copyright. The confusion is understandable.
Let's look to Nimmer:
So, in other words, despite what it says in Section 101, where it says that both the licensor and the licensee can be regarded as the "copyright owner," Section 201(d)(2) leads to the inescapable conclusion that the "copyright owner" and the "exclusive licensee" are different parties.
Therefore, for purposes of rights and remedies under the Act, it's OK to consider both the licensor and the licensee as the "copyright owner." But, it's important to keep in mind that the licensee is not the true copyright owner, i.e., the owner of the title to the work. This distinction is critical in other contexts such as publication and notice.
As far as Fogerty goes, it does no work for your argument.
Defendant Fogerty granted his exclusive rights in the work to the plaintiff in exchange for a sales percentage and royalties. Fogerty became the beneficial owner and the plaintiff became the copyright owner. The part you're missing is that Fogerty divested himself of legal TITLE to the work. He didn't just grant an exclusive license--he granted title ownership.
Says the court:Fantasy, Inc. v. Fogerty, 654 F. Supp. 1129 (N.D. Cal. 1987).
The plaintiff became the copyright owner, i.e., the title owner, because he was granted more than just a license by Fogerty--he was granted title. Since Fogerty didn't just grant an exclusive license, that case does nothing to support your argument.
As promised, I said point me to the caselaw you're reading and I'll explain how you're reading it wrong.
Retort? Thanks? Care to concede the point?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Next >>