If you're suggesting that a person who is only an exclusive licensee of some of the rights under 106 is not generally considered a "copyright owner," then you're right... kind of. Title 17 says an "exclusive license" is a transfer of ownership, but courts have also considered the original copyright owner, who still owns some rights, to also be considered a "beneficial owner" of those particular rights.
Wrong. Wrong. Wrong. So completely wrong. Please stop.
However, once all of the rights under 106 are transferred to a single party, that party becomes the copyright owner. The original owner has exhausted all rights to the property. That's what "assignment" means. It is how copyrights are transferred.
Sigh. Karl is so completely wrong on so many different points that it's not funny. What do I get if the time to conclusively prove this? What's my incentive for giving the both of you ANOTHER free lesson?
Except for the fact that the caselaw you quote does not prove your point.
It absolutely does not. You don't understand what you read.
I'm not brushing anything off. I'm reading the quotes that you posted. They say you're incorrect.
Nope. You just just don't understand them.
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."
That is absolutely not true. You just make this shit up.
The latter - an exclusive licensee of all rights - is considered the copyright owner. This is supported in every case I've read.
Wrong. Wrong. Wrong. Point me to ONE CASE and I'll explain to you how you are reading it wrong.
I imagine that would be news to the RIAA who already tried that and got shot down handily in court in the famous RIAA v. Verizon case. Of course, given his other mistakes, I guess it's no surprise that Stone apparently is unfamiliar with the case law on the matter.
That was my first thought too. He's probably looking at the subpoena provision in the DMCA, Section 512(h). You might want to read 351 F.3d 1229 (D.C. Cir. 2003), Mr. Stone.
Another question to ask is how is Righthaven harmed as a result of an infringement
There is without a doubt a purpose for statutory damages but when that same statute limits standing, you can't, with impunity, create sham assignments to evade the statutory confines that also have a purpose.
I don't follow the argument. What part of the statutory damages statute is being evaded?
I never said that. The assignee of an accrued right to sue may exercise that right as long as the statue has conferred upon him standing to sue. The problem only becomes evident when standing is manufactured through a sham assignment of exclusive rights for the sole purpose of "appearing" to meet the strictures of the statute, when in fact the only right assigned was a conditional right to sue.
You're just going in circles. What exactly makes it a sham? Isn't it just as likely that the rights were assigned for the purpose of actually having standing, rather than for just appearing to? You seem to accept that in general the right to sue may be assigned and exercised. What you haven't explained is why that general rule is being broken here.
Now you are beginning to sound like a little boy who keeps asking why, but why? Why?
What, am I supposed to take your argument at face value without understanding the why of it? No thanks. If you can't explain why, then you can't explain why. Don't try and flip it like it's weird that I'm even asking.
Again, I don't believe this deserves much more debate because it is abundantly clear that a legitimate buyer of a copyright would not buy that right only after it has been compromised and infringed upon by a third party.
What is the basis for your claim here? People buy assets all the time that have been infringed upon. The right to sue is transferable. It should be no surprise that it is indeed transferred and exercised.
This militates toward a conclusion that the assignment was effectuated for the sole purpose of facilitating a lawsuit by a proxy plaintiff. There can be no other purpose for these copyright assignments.
Do you think that any time a transferred right to sue is sued upon that it's a sham? The whole purpose of transferring that right is so that it can be exercised. Why else would copyright law allow the right to be transferred?
Righthaven obtains these copyrights for the sole purpose of filing lawsuit and its litigation strategy is in direct conflict with the intent of the Copyright Act.
Considering that copyright law allows for the right to sue to be transferred, I don't understand how exercising that right violates copyright law.
As Judge Mahan observed in Righthaven LLC., v. Center for Intercultural Organizing: “[Righthaven’s] litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation.”
Its purported chilling effect on fair use has nothing to do with the validity of the ownership transfer.
A sham is a sham.
Right. But you haven't demonstrated exactly why this is a sham. Your argument seems to be predicated on the idea that a transferee of an accrued right to sue isn't supposed to exercise that right. That makes no sense to me.
Ah. Your mistake is in thinking that the right to sue cannot be transferred. It can. The caselaw is perfectly clear on this point. The right to sue can be transferred as long as it is transferred along with another right--that's what Silvers says. Here, Righthaven was assigned all of the copyrights plus the right to sue, so it's all good.
To deny that the assignment from Stephens Media to Righthaven is a sham is intellectually dishonest and doesn't even deserve much more of a response than that already offered.
Can you back that up with bit of argument and precedent? Specifically which part of the assignment makes it a sham, and why? You haven't really offered much in the way of an explanation.
And would that "owner" actually own the work and all rights, or would they be bound with all the limitations that RightHaven is? Doesn't sound like ownership to me.
Both. They'd own it, but with the same limitations. Sounds exactly like ownership to me. Ownership can be dismembered and encumbered. That doesn't mean it's not still ownership.
Yeah, so when SM wants to sub-license the work, they just shoot RightHaven an email saying 'We're gonna sub-license this. Let us or we take the work back.'
Probably so. I'm sure Righthaven won't mind if they sub-license it.
Yeah, they can do whatever they want with their half of the money. The other half already belongs to Stephens Media.
Yep. But the profit-sharing doesn't mean the assignment is a sham.
Yes, very important. Just that Stephens Media has veto power over any lawsuit or "enforcement" action.
Yep. But the veto power doesn't mean the assignment is a sham.
Interesting that you brought up fraud. That seems like a good description of RightHaven.
I meant fraud as between Righthaven and Stephens Media, but point taken.
LOL! Maybe they did cross the line. Looking at the agreement's individual parts, I don't see any problems. Taken as a whole, though, I agree that it's fishy.
I'd say the sole intent was to set up a situation that was beneficial to both parties, i.e., it's a legitimate business venture.
As far as contracting around Silvers goes... Where does it say you can't do that? Silvers simply states that more than the naked right to sue must be transferred. Righthaven was assigned more than that naked right, so it's all good under Silvers. Silvers doesn't say that once you have been transferred a 106 right and its accreted right to sue that you then can't grant an exclusive license of that right.
That is not to say that I think the whole sham argument is meritless. It ties in with what I stated above, where I said that I think the champerty claim has merit. I haven't really researched the issue yet, so I can't speak to it intelligently. At first blush, though, I agree there's an argument there. I'm sure the EFF will flesh out the argument in the Democratic Underground suit. I'm curious to see exactly what they say.
There is no requirement that an exclusive license be for a fixed term. Even if the term is indeterminate, the licensor retains ownership.
The assignment does recite adequate consideration: "for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged."
I understand that there reaches a point where a transaction becomes a sham, but where is the line exactly? How do we know that Stephens Media and Righthaven crossed it?
Stephens Media can assign their copyrights to Righthaven. That's not a sham. Righthaven can grant Stephens Media an exclusive license. That's not a sham. Stephens Media can retain (or be granted) the right of reversion. That's not a sham. Righthaven can agree to share profits from lawsuits with Stephens Media. That's not a sham. Etc.
When is the line crossed? What specific part of their agreement caused them to cross the line? What is the reasoning? The authority? The argument?
If I setup a corporation and transfer assets to it for the sole purpose of evading the confines of a statute, I believe that qualifies as a sham transaction.
How do you apply that to Righthaven? Is there a "sole basis" test for "sham transactions"? Is Stephens Media only trying to "evade the confines of a statute"? Is Righthaven? I think there's an argument there, but I'm not sure what it is. The agreement between Righthaven and Stephens Media seems very real to me.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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Wrong. Wrong. Wrong. So completely wrong. Please stop.
However, once all of the rights under 106 are transferred to a single party, that party becomes the copyright owner. The original owner has exhausted all rights to the property. That's what "assignment" means. It is how copyrights are transferred.
WRONG. How do you get so wrong, so often?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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It absolutely does not. You don't understand what you read.
I'm not brushing anything off. I'm reading the quotes that you posted. They say you're incorrect.
Nope. You just just don't understand them.
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."
That is absolutely not true. You just make this shit up.
The latter - an exclusive licensee of all rights - is considered the copyright owner. This is supported in every case I've read.
Wrong. Wrong. Wrong. Point me to ONE CASE and I'll explain to you how you are reading it wrong.
On the post: Even As Copyright Trolls' Legal Strategy Appears To Be Failing, The Shakedowns Are Working
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What do you suppose is the solution to that problem? Serious question.
On the post: Even As Copyright Trolls' Legal Strategy Appears To Be Failing, The Shakedowns Are Working
That was my first thought too. He's probably looking at the subpoena provision in the DMCA, Section 512(h). You might want to read 351 F.3d 1229 (D.C. Cir. 2003), Mr. Stone.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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So you can't explain it, then?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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There is without a doubt a purpose for statutory damages but when that same statute limits standing, you can't, with impunity, create sham assignments to evade the statutory confines that also have a purpose.
I don't follow the argument. What part of the statutory damages statute is being evaded?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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You're just going in circles. What exactly makes it a sham? Isn't it just as likely that the rights were assigned for the purpose of actually having standing, rather than for just appearing to? You seem to accept that in general the right to sue may be assigned and exercised. What you haven't explained is why that general rule is being broken here.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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What, am I supposed to take your argument at face value without understanding the why of it? No thanks. If you can't explain why, then you can't explain why. Don't try and flip it like it's weird that I'm even asking.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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What is the basis for your claim here? People buy assets all the time that have been infringed upon. The right to sue is transferable. It should be no surprise that it is indeed transferred and exercised.
This militates toward a conclusion that the assignment was effectuated for the sole purpose of facilitating a lawsuit by a proxy plaintiff. There can be no other purpose for these copyright assignments.
Do you think that any time a transferred right to sue is sued upon that it's a sham? The whole purpose of transferring that right is so that it can be exercised. Why else would copyright law allow the right to be transferred?
Righthaven obtains these copyrights for the sole purpose of filing lawsuit and its litigation strategy is in direct conflict with the intent of the Copyright Act.
Considering that copyright law allows for the right to sue to be transferred, I don't understand how exercising that right violates copyright law.
As Judge Mahan observed in Righthaven LLC., v. Center for Intercultural Organizing: “[Righthaven’s] litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation.”
Its purported chilling effect on fair use has nothing to do with the validity of the ownership transfer.
A sham is a sham.
Right. But you haven't demonstrated exactly why this is a sham. Your argument seems to be predicated on the idea that a transferee of an accrued right to sue isn't supposed to exercise that right. That makes no sense to me.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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Can you back that up with bit of argument and precedent? Specifically which part of the assignment makes it a sham, and why? You haven't really offered much in the way of an explanation.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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Both. They'd own it, but with the same limitations. Sounds exactly like ownership to me. Ownership can be dismembered and encumbered. That doesn't mean it's not still ownership.
Yeah, so when SM wants to sub-license the work, they just shoot RightHaven an email saying 'We're gonna sub-license this. Let us or we take the work back.'
Probably so. I'm sure Righthaven won't mind if they sub-license it.
Yeah, they can do whatever they want with their half of the money. The other half already belongs to Stephens Media.
Yep. But the profit-sharing doesn't mean the assignment is a sham.
Yes, very important. Just that Stephens Media has veto power over any lawsuit or "enforcement" action.
Yep. But the veto power doesn't mean the assignment is a sham.
Interesting that you brought up fraud. That seems like a good description of RightHaven.
I meant fraud as between Righthaven and Stephens Media, but point taken.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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As far as contracting around Silvers goes... Where does it say you can't do that? Silvers simply states that more than the naked right to sue must be transferred. Righthaven was assigned more than that naked right, so it's all good under Silvers. Silvers doesn't say that once you have been transferred a 106 right and its accreted right to sue that you then can't grant an exclusive license of that right.
That is not to say that I think the whole sham argument is meritless. It ties in with what I stated above, where I said that I think the champerty claim has merit. I haven't really researched the issue yet, so I can't speak to it intelligently. At first blush, though, I agree there's an argument there. I'm sure the EFF will flesh out the argument in the Democratic Underground suit. I'm curious to see exactly what they say.
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The assignment does recite adequate consideration: "for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged."
http://www.techdirt.com/articles/20110416/01084413924/unsealed-document-reveals-sh am-copyright-assignments-to-righthaven.shtml#c532
Not sure what your argument is there...
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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Stephens Media can assign their copyrights to Righthaven. That's not a sham. Righthaven can grant Stephens Media an exclusive license. That's not a sham. Stephens Media can retain (or be granted) the right of reversion. That's not a sham. Righthaven can agree to share profits from lawsuits with Stephens Media. That's not a sham. Etc.
When is the line crossed? What specific part of their agreement caused them to cross the line? What is the reasoning? The authority? The argument?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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How do you apply that to Righthaven? Is there a "sole basis" test for "sham transactions"? Is Stephens Media only trying to "evade the confines of a statute"? Is Righthaven? I think there's an argument there, but I'm not sure what it is. The agreement between Righthaven and Stephens Media seems very real to me.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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kindly define your understanding of a sham transaction.
A sham is a simulation, a counterfeit, a fake. A sham is objectively baseless and done in bad faith.
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