So, as title owner of the work, what unequivocal right does RH have? Is there some right they have that they are not contractually obligated to grant Stephens Media? Can RH decide to perform any action in regards to the work without Stephens Media having veto over?
They can transfer their ownership interest to a third-party. Assuming they didn't grant Stephens Media the right to sub-license the works, they can prevent Stephens Media from sub-licensing the works. They can make agreements with other parties to share in the proceeds from enforcement of their copyrights (as they did with Stephens Media). Important for our purposes, they can bring lawsuits as they are doing here.
Is there some situation in which Stephens Media decided to reclaim ownership that RightHaven could conceivably fight against and prevail?
Righthaven granted a right of reversion to Stephens Media, so probably not, unless there's fraud or something like that.
Making such requests is in bad faith if it is in fact only for leverage.
I think so too. Righthaven will just keep claiming that there's other reasons to ask for it. The argument that it's in bad faith seems like a nonstarter without evidence of such.
Amazing. FUDbuster knows this line of reasoning was already debunked.
And I'll just add that this is another instance where you misuse the word "debunked." You throw that word around all the time, and often without merit, as is the case here. You seem to think that as soon as one person posits a theory you agree with, all other theories to the contrary are completely "debunked." It's ridiculous.
Can you back up the claim that my "line of reasoning" has been definitively "debunked"? I seriously doubt it.
How are we supposed to believe you whenever you claim something is "debunked"? It doesn't appear that you know what the word means.
In normal situations the copyright IS "the right to exploit the work" and a judge is quite likely to hold that if you transfer that right then you have transferred the copyright.
Simply untrue. A copyright owner that grants an exclusive license still holds ownership of the title in the copyright. The exclusive licensee does not receive the title.
Would you agree that the Strategic Alliance Agreement provides grounds to assert that Righthaven is a straw man due to the fact that they do not have have a genuine interest in the property. That all forms of interest other than pursuing lawsuits originates with, and are retained by, Stephans Media?
No, I don't agree. Righthaven does have a genuine interest in the work. They are the title owner of it. Acting as owner, they granted to Stephens Media an exclusive license. An owner that grants exclusive licenses doesn't lose ownership of the title in the work.
For example, do we know if Stephans Media has to share with Righthaven revenues from sub-licensing of copyrighted works?
Whether or not Stephens Media has to share revenue from sub-licensing (if sub-licensing by Stephens Media is even allowed; unless specifically granted this right in the contract, I believe that Stephens Media by default would NOT have this right) is irrelevant to the issue of ownership. An exclusive licensee does not have to share revenue with the copyright holder, nor are they barred from doing so.
It does. I think the problem is proving that their intent is malevolent. As long as the remedy is theoretically possible, it's hard to say that they can't ask for it in good faith.
Yes, of course. There's a fundamental duty of good faith. I'd certainly agree that Righthaven is close to crossing that line with the demand for the domain name. I'm not sure I agree that they've crossed that line though. Since it is a remedy that could possibly happen, it's not really bad faith to ask for it.
The reversion clause is what really shows it as a scam.
Maybe. Contracts with reversionary rights are still contracts that convey ownership when perfected. By itself, there's nothing wrong with this provision in the Agreement, and ownership still transfers regardless of it. The reversionary right is only relevant if it's been exercised.
Re: Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
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.
I do think there is some merit to the argument that this is champerty. I also agree with the EFF that it looks like Righthaven was less-than-honest with the court about who stood to gain financially from these lawsuits. The Agreement clearly shows that profits were to be split between Righthaven and Stephens Media.
Didn't it just come out that Righthaven was not the actual owner of the copyright? (See EFF's revelation that the assignment was a legal sham.) The right to sue is not a valid assignment of a copyright (Stephens Media retained all the exclusive rights of the copyright).
The EFF claiming something a court deciding something are two different things. So far no court has agreed with the EFF about these ownership issues.
so what is your explanation of the Strategic Alliance Agreement showing exactly the opposite: that the original copyright holder Stephens Media retains all rights and grants to Righthaven ONLY the right to sue?
Simple. What the Strategic Alliance Agreement and the individual copyright assignments done pursuant to that Agreement show is that ownership, i.e., title, to the works transferred to Righthaven. Stephens Media transferred ownership of the work to Righthaven, and then Righthaven granted to Stephens Media an exclusive license. The Agreement uses the word "retain," but that word is used erroneously. Stephens Media is granted the rights anew from its licensor, Righthaven. Looking at the contract as a whole, it is clear that technically Stephens Media does not "retain" the rights. The net result is that they still have the rights, but important for our purposes, ownership changed hands.
Wait, what? When did righthaven become owner (outside of the right to sue) of the copyright, in order to license them to Stephens Media?
Righthaven has repeatedly shown that they own the copyrights when challenged by producing the copyright assignment for the work in question. The judges that have looked at the copyright assignment have agreed, without exception, that Righthaven owns the copyrights.
Last week or so, the overarching contract between Righthaven and Stephens Media, styled "Strategic Alliance Agreement," became public. This agreement states that ownership of the copyrights is transferred to Righthaven, and then Righthaven grants to Stephens Media the exclusive right to "exploit" the work. So, Righthaven is the owner of the copyright, and Stephens Media is the exclusive licensee.
What's important for Righthaven is that ownership, i.e., title, transferred to them.
Re: Righthaven Defies Court, Ignores Domain Name Ruling
The EFF's foot stomping seems to gloss over the issue. Righthaven admits that the Copyright Act does not explicitly say that domain names can be awarded. 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.
As Righthaven explains:
Righthaven has unquestionably asked this Court to enter equitable relief in the form of a preliminary and permanent injunction. (Doc. # 1 at 5.) Righthaven has also requested this Court enter such relief as it deems just and appropriate in this action. (Id.) Thus, it is beyond question Righthaven has asked for and alleged facts sufficient to invoke the Court’s equitable powers. More importantly for purposes of deciding the Motion, Righthaven has not sought transfer of the Website as a form of relief exclusively authorized by the Copyright Act. In fact, Righthaven acknowledges that such relief would be subject to the Court’s discretion and only upon the presentation of evidence which would justify transfer of the Website.
It cannot be disputed that federal courts are authorized to freeze assets in the aid of ultimately satisfying a judgment in a case. See FED. R. CIV. P. 64. Such action may be taken pursuant to federal law or state law. Id. The freezing or seizure of assets may be warranted where damages are sought in addition to equitable relief. See United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 489, 498 (4th Cir. 1999). In fact, a district court may freeze assets before trial to secure the payment of attorney’s fees. See Commodity Futures Trading Comm’n v. Noble Metals Int’l, Inc., 67 F.3d 766, 774-75 (9th Cir. 1995). As recognized by the panel in Oncology Associates, “when the plaintiff . . . asserts a cognizable claim . . . or seeks a remedy involving those assets, a court may in the interim preserve the status quo pending judgment . . . .” 198 F.3d at 496.
As the above cited authorities reveal, the Court is empowered to take action to preserve and marshal assets prior to entry of judgment. The obviously corollary of this is the power to take such action upon the presentation of evidence and entry of judgment.
This new demand from Righthaven follows from this. The same authority that could allow a court to seize and award a domain name could be used to seize and award hardware, software, and media.
In the link you provided, the EFF also makes this statement: "The new complaint also asserts that Righthaven holds the "exclusive rights" to Stephens Media news articles, despite the Strategic Alliance Agreement showing that Stephens Media retains these rights." Righthaven does "hold" the exclusive rights because Righthaven owns those rights, i.e., Righthaven holds the legal title to those rights. You could also say that Stephens Media, as exclusive licensee, "holds" an interest in the copyright as well, but that doesn't negate the fact that Righthaven "holds" the title to the copyrights. There's nothing wrong with Righthaven's claim that they "hold" the exclusive rights. They do. Copyright law often speaks of the copyright owner as the "copyright holder." Why? Because he holds title. And who holds the title is what's important for the standing issue here.
I don't think the EFF's position is nearly as strong as they seem to think, at least in regard to the issues of ownership and standing. I expect an embarrassing defeat on these specific issues. I also expect lots of spin from the usual suspects.
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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They can transfer their ownership interest to a third-party. Assuming they didn't grant Stephens Media the right to sub-license the works, they can prevent Stephens Media from sub-licensing the works. They can make agreements with other parties to share in the proceeds from enforcement of their copyrights (as they did with Stephens Media). Important for our purposes, they can bring lawsuits as they are doing here.
Is there some situation in which Stephens Media decided to reclaim ownership that RightHaven could conceivably fight against and prevail?
Righthaven granted a right of reversion to Stephens Media, so probably not, unless there's fraud or something like that.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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Link?
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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I disagree. Owner and licensee are easily distinguishable.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Re: Re: Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
I think so too. Righthaven will just keep claiming that there's other reasons to ask for it. The argument that it's in bad faith seems like a nonstarter without evidence of such.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Re: Re: Exclusive rights
And I'll just add that this is another instance where you misuse the word "debunked." You throw that word around all the time, and often without merit, as is the case here. You seem to think that as soon as one person posits a theory you agree with, all other theories to the contrary are completely "debunked." It's ridiculous.
Can you back up the claim that my "line of reasoning" has been definitively "debunked"? I seriously doubt it.
How are we supposed to believe you whenever you claim something is "debunked"? It doesn't appear that you know what the word means.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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Simply untrue. A copyright owner that grants an exclusive license still holds ownership of the title in the copyright. The exclusive licensee does not receive the title.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Re: Re: Exclusive rights
When was it debunked? Exactly what is wrong with my statement? What precisely are the arguments?
Righthaven never actually had any of the 106 rights.
Righthaven acquired title ownership of the 106 rights when the copyright assignment was executed. What exactly is your argument to the contrary?
The idea that it is the copyright holder is a joke, and pretty much every lawyer who doesn't work for Righthaven seems to agree on that point.
What court has ever agreed with this? None that I know of.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Exclusive rights
No, I don't agree. Righthaven does have a genuine interest in the work. They are the title owner of it. Acting as owner, they granted to Stephens Media an exclusive license. An owner that grants exclusive licenses doesn't lose ownership of the title in the work.
For example, do we know if Stephans Media has to share with Righthaven revenues from sub-licensing of copyrighted works?
Whether or not Stephens Media has to share revenue from sub-licensing (if sub-licensing by Stephens Media is even allowed; unless specifically granted this right in the contract, I believe that Stephens Media by default would NOT have this right) is irrelevant to the issue of ownership. An exclusive licensee does not have to share revenue with the copyright holder, nor are they barred from doing so.
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 Defies Court, Ignores Domain Name Ruling
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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On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Exclusive rights
Maybe. Contracts with reversionary rights are still contracts that convey ownership when perfected. By itself, there's nothing wrong with this provision in the Agreement, and ownership still transfers regardless of it. The reversionary right is only relevant if it's been exercised.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Re: Re: Righthaven Defies Court, Ignores Domain Name Ruling
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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The EFF claiming something a court deciding something are two different things. So far no court has agreed with the EFF about these ownership issues.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Exclusive rights
Simple. What the Strategic Alliance Agreement and the individual copyright assignments done pursuant to that Agreement show is that ownership, i.e., title, to the works transferred to Righthaven. Stephens Media transferred ownership of the work to Righthaven, and then Righthaven granted to Stephens Media an exclusive license. The Agreement uses the word "retain," but that word is used erroneously. Stephens Media is granted the rights anew from its licensor, Righthaven. Looking at the contract as a whole, it is clear that technically Stephens Media does not "retain" the rights. The net result is that they still have the rights, but important for our purposes, ownership changed hands.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
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Righthaven has repeatedly shown that they own the copyrights when challenged by producing the copyright assignment for the work in question. The judges that have looked at the copyright assignment have agreed, without exception, that Righthaven owns the copyrights.
Last week or so, the overarching contract between Righthaven and Stephens Media, styled "Strategic Alliance Agreement," became public. This agreement states that ownership of the copyrights is transferred to Righthaven, and then Righthaven grants to Stephens Media the exclusive right to "exploit" the work. So, Righthaven is the owner of the copyright, and Stephens Media is the exclusive licensee.
What's important for Righthaven is that ownership, i.e., title, transferred to them.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Re: Righthaven Defies Court, Ignores Domain Name Ruling
As Righthaven explains:http://www.eff.org/files/filenode/righthaven_v_dib/RH-ResponseDiBiaseMTD.pdf
This new demand from Righthaven follows from this. The same authority that could allow a court to seize and award a domain name could be used to seize and award hardware, software, and media.
In the link you provided, the EFF also makes this statement: "The new complaint also asserts that Righthaven holds the "exclusive rights" to Stephens Media news articles, despite the Strategic Alliance Agreement showing that Stephens Media retains these rights." Righthaven does "hold" the exclusive rights because Righthaven owns those rights, i.e., Righthaven holds the legal title to those rights. You could also say that Stephens Media, as exclusive licensee, "holds" an interest in the copyright as well, but that doesn't negate the fact that Righthaven "holds" the title to the copyrights. There's nothing wrong with Righthaven's claim that they "hold" the exclusive rights. They do. Copyright law often speaks of the copyright owner as the "copyright holder." Why? Because he holds title. And who holds the title is what's important for the standing issue here.
I don't think the EFF's position is nearly as strong as they seem to think, at least in regard to the issues of ownership and standing. I expect an embarrassing defeat on these specific issues. I also expect lots of spin from the usual suspects.
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