The court's first fair use factor analysis is suspect:
First, CIO’s use of the article is transformative. Although the former owner, the LVRJ, used the article for news-reporting, the court focuses on the current copyright owner’s use, which, at this juncture, has been shown to be nothing more than litigation-driven. Accordingly, CIO’s use of the article to educate the public is transformative and does not constitute a substitution of the plaintiff’s use. See Perfect 10, 508 F.3d at 1146 (discussing the effect of market substitution in relation to the first and fourth factors).
Righthaven is doing more with its ownership than just filing lawsuits. Righthaven is exercising its ownership by granting rights to its exclusive licensee, Stephens Media. Stephens Media is using the article for "news-reporting," and CIO's use is a market substitution of that use. In other words, CIO's use for "news-reporting" directly conflicts with Righthaven's use of licensing the work for "news-reporting" to Stephens Media.
It's an interesting twist of logic from the court in a decision that I don't think will withstand appeal.
40. "Righthaven is the owner of the copyrights in and to the Works."
73. Righthaven holds the exclusive right to reproduce the Hero Work, pursuant to 17 U.S.C. § 106(1).
74. Righthaven holds the exclusive right to prepare derivative works based upon the Hero Work, pursuant to 17 U.S.C. § 106(2).
75. Righthaven holds the exclusive right to distribute copies of the Hero Work, pursuant to 17 U.S.C. § 106(3).
76. Righthaven holds the exclusive right to publicly display the Hero Work, pursuant to 17 U.S.C. § 106(5).
I don't have a problem with 40. Righthaven has ownership of the copyright. 73-76, I think, are less clear. Does Righthaven really "hold" an exclusive right that they have granted to an exclusive licensee? Yes, because in this sense "hold" means "own," i.e., to have legal title to.
It's somewhat confusing though, because another reasonable interpretation of "hold" would mean "possess." Righthaven does not possess these rights, since they've licensed them away. The confusion is understandable, but looking at Righthaven's filing, clearly they mean that they "hold" the title--which they do. Righthaven "holds" the title and Stephens Media "holds" the license. They both "hold" an interest in the copyright.
The new filing, I think, shows that Righthaven is not at all worried about these attacks on their standing to sue. In my opinion, they have nothing to worry about as I think they clearly have standing too.
I don't think they're out of the water yet though. It does appear that they misrepresented to the court that Stephens Media stands to have a direct interest in the lawsuits because of the fee-sharing arrangement they have with Righthaven. I also think, having now read the Strategic Alliance Agreement, that the champerty claims have some teeth.
No dice, Mike. I proved him wrong in this very thread, and he won't admit it. I cited circuit courts and Nimmer explicitly stating that an exclusive licensee is NOT the copyright owner. Karl BRUSHES THIS OFF and says that's wrong. You think that's him winning the debate? Good grief. I'm not sure I can help you either.
I can point to post after post after post after post of where Karl has been 100% wrong on some while insisting that he was 100% right. Do you really want to play this game?
Your problem, Karl, is that you don't understand what you're reading when you read statutes, caselaw, etc. Without a grasp of the fundamentals, you misinterpret what you read. It's quite amazing, from my point of view, how you consistently read something and come away with a complete misunderstanding of what you're just read. A couple examples that come to mind are when you were arguing that copyright laws are subject to strict scrutiny in their First Amendment analysis, and how you were citing to seizure laws for real estate when trying to explain seizures of domain names. You did then what you're doing now--what you always do, you took on the attitude like you're completely right. That just makes you a fool. I was willing to go through all of this line-by-line, case-by-case, and issue-by-issue with you, but now I understand that such efforts are completely wasted on you.
You truly are remarkable. Clearly, you don't want me to explain this to you. You just go on thinking you have it all figured out. You don't. You're clueless. Truly, Karl, you've been proved wrong so many times on techdirt on points of law that it's amazing to me that you continue to take this know-it-all attitude. I can't help you since you don't want to be helped. Good luck to you.
And, just for your knowledge, the Ninth Circuit interprets the Copyright Act the same as the Second Circuit on this point, viz., the exclusive licensee of the 106 rights is NOT the copyright owner. This interpretation is binding on the courts in the Nevada Righthaven cases:
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).
This is why an "exclusive license" is as much of a transfer of ownership as full-on assignment.
This is absolutely and completely not true. I've quoted the Second Circuit and Nimmer to back this. The other circuit courts I quote reinforce my position.
Where is your support? What is your authority?
Don't give me the statute. As pointed out by Nimmer and the Second Circuit, the statute is misleading on its face. It's tautological.
Show me a court of law that takes your position. You haven't done this, nor do I think you can.
You're simply telling me what you think the law should be, you're not proving that what you're saying is how the law actually is.
Simply put, you don't own a "title," you own a right; and an exclusive license is as much a transfer of ownership as assignment is.
Sigh. You really don't understand any of this. The problem is that you don't grasp any of the fundamentals. I could help you learn some of this, since you seem so interested, but you need to drop the attitude like you know it all. Otherwise, I can't help you.
None of the caselaw, nor Nimmer, claim this, because it's not true.
Here's my Nimmer and caselaw, Karl. Where's yours?
There are two general categories of licenses: non-exclusive licenses, which permit licensees to use the copyrighted material and may be granted to multiple licensees; and exclusive licenses, which grant to the licensee the exclusive right-superior even to copyright owners' rights-to use the copyrighted material in a manner as specified by the license agreement. ***
Under current copyright law, exclusive licenses are recognized as a type of an ownership interest, conveying a particular exclusive right of copyright. See 17 U.S.C. § 101 (“ ‘Copyright owner’, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.”). Exclusive licensees may sue without joining the copyright owners, 17 U.S.C. § 501, and exclusive license agreements must be in writing, 17 U.S.C. § 204(a); see also Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 36 (2d Cir.1982). The differences between an “exclusive” license and an assignment or transfer of copyright ownership interest have diminished to the point that the terms are nearly synonymous. See 17 U.S.C. § 101 (“A ‘transfer of copyright ownership’ is an assignment, mortgage, exclusive license, or any other conveyance ... of a copyright or any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.”).
Davis v. Blige, 505 F.3d 90 (2d Cir. 2007).
We turn, therefore, to the differences between exclusive and nonexclusive licenses.76 In an exclusive license, the copyright holder permits the licensee to use the protected material for a specific use and further promises that the same permission will not be given to others. The licensee violates the copyright by exceeding the scope of this license.
I.A.E., Inc. v. Shaver, 74 F.3d 768 (7th Cir. 1996).
Copyright is wholly a “creature of statute, and the only rights that exist under *1144 copyright law are those granted by statute.” Silvers v. Sony Pictures Entm't, 402 F.3d 881, 883-84 (9th Cir.2005) (en banc). Under copyright law, only copyright owners and exclusive licensees of copyright may enforce a copyright or a license. See 17 U.S.C. § 501(b) (conferring standing only to the “legal or beneficial owner of an exclusive right” who “is entitled ... to institute an action for any infringement ... while he or she is the owner of it”); Silvers, 402 F.3d at 885. Therefore, third party strangers and nonexclusive licensees cannot bring suit to enforce a copyright, even if an infringer is operating without a license to the detriment of a nonexclusive licensee who has paid full value for his license. See 3-10 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 10.02[B][1] (2007).
Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008).
The Copyright Act authorizes only two types of claimants to sue for copyright infringement: (1) owners of copyrights, and (2) persons who have been granted exclusive licenses by owners of copyrights.3 17 U.S.C. § 501(b) (Supp. IV 1980); 3 M. Nimmer, Nimmer on Copyright § 12.02, at 12-25 (1982).
Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27 (2d Cir. 1982).
Under Section 101's definition, “an exclusive licensee may be regarded as the copyright owner of the rights thus licensed.” See 2 Nimmer § 7.16[B][2], at 7-165 n. 105.4 (emphasis added). Being “regarded” as an owner and actually being an owner are, of course, two separate things. While it is perhaps unfortunate that the Act's drafters chose to call owners of copyrights and owners of exclusive rights by the same name, we think that Section 101's definition reflects the fact that exclusive licensees are treated as copyright owners for the purpose of protection and remedy pursuant to § 201(d)(2). In other words, Condé Nast would stand in Morris's shoes with respect to infringement of the publication rights it exclusively licensed-and, as pointed out in the above quote from Nimmer, only for that particular right. Morris, in contrast, would have standing as the owner of the copyright to bring an action for infringement of any of the rights comprised therein.
Indeed, the construction of § 201(d)(2) itself mandates the conclusion that an exclusive licensee is not a copyright owner. The subsection states that “[t]he 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). As analyzed by Nimmer: “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 the protections and remedies accorded to [the owner of such particular exclusive right].” 3 Nimmer § 10.02[C][2], at 10-29 n. 52. Subsection 201(d)(2) thus draws a distinction between a copyright owner and an exclusive licensee that precludes the argument for “divisibility of copyright ownership” urged by Morris.
Based on our understanding of the above provisions, we conclude that Section 101 cannot be read to mean that an owner of an exclusive right is also, thereby, an owner of the underlying copyright.
While somewhat inapt, I would term the "Red Flag" provision akin to constructive knowledge.
I think that's a good analogy. Red flag or apparent knowledge isn't about what you know, it's about what you should know. It's where the law imputes you with the knowledge that you should have known--that you would have known had you not turned a blind eye. The DMCA clearly delineates two levels of knowledge: actual and apparent. Apparent knowledge is more than general knowledge, but less than actual knowledge. It's willful blindness.
Which of the Section 106 rights does Righthaven own?
None? Right. Then it has no right to sue.
That's the point. I'm amazed that he's still defending this.
Righthaven owns, i.e. has title, to ALL of the 106 rights. They've granted an exclusive license of those rights to Stephens Media. It is very, very simple.
Do you believe that when you grant someone an exclusive license you are granting them complete ownership? It doesn't work that way.
Righthaven only "owns" the title to whatever rights that they did not exclusively license to Stephens Media. Once they granted Stephens Media an exclusive license to that particular right, they lost ownership of that right.
Had they granted Stephens a non-exclusive license, that would not be true. The key word here is "exclusive," not "license."
You do not appear to understand what it means to hold the title to something. Nor do you appear to understand that an exclusive license is less than ownership.
That is not true. Absolutely none of the rights in 106 were ever, at any time, granted to Righthaven. None of those rights were transferred. They do not own the "title" to any of them.
You simply don't understand what you're talking about. I'm happy to teach you, or point you in the right direction.
You conveniently left out a statement just a couple paragraphs down, noting that Hunt likely wasn't aware of the details of the Strategic Agreement when he made that ruling, as that document was only recently handed over to the court.
It's that agreement that makes what you seem "clear" a lot less than clear for almost everyone else.
Right, I should have been more careful. When looking only at the individual assignments, it is "clear." That's what Judge Hunt said. And that's what I said in the other thread when we were talking about the amicus brief where Randazza was saying how unclear it was. It wasn't unclear.
Now, we'll see what the judge says about the Strategic Alliance Agreement. I think that only reinforces the fact that the assignment is clear.
Dramatic much? I understand that the issue is comity, and I answered, "Sure." He couldn't escape the contract or the court order by simply moving to California.
I don't see how the court would need to look at these broader public policy arguments to answer the questions before it. Sure, you can make the arguments, but I don't how they would actually guide the court in this case. Congress already established the policy with regard to red flag knowledge. I'll be really surprised if the court's analysis includes a policy argument. I expect it will be rooted on statutory construction, the congressional record, and caselaw.
I agree. Arguing as a general matter that we shouldn't shift the burden onto service providers does nothing to help the court interpret the DMCA as it applies in this case. It's a policy argument that's only indirectly on point, and it's better suited to make that argument to Congress, not the courts.
Looking at the plaintiffs, I see we have Potsie, Mrs. C., Ralph Malph, Joanie, and Mr. C. (by his executor). In addition to the Fonz and Richie, I'd say that Chachi is conspicuously absent. God, I thought he was so cool.
On the post: Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
It's an interesting twist of logic from the court in a decision that I don't think will withstand appeal.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Their latest suit: http://ia600603.us.archive.org/13/items/gov.uscourts.nvd.80631/gov.uscourts.nvd.80631.1.0.pdf
It its complaint, Righthaven continues to assert:I don't have a problem with 40. Righthaven has ownership of the copyright. 73-76, I think, are less clear. Does Righthaven really "hold" an exclusive right that they have granted to an exclusive licensee? Yes, because in this sense "hold" means "own," i.e., to have legal title to.
It's somewhat confusing though, because another reasonable interpretation of "hold" would mean "possess." Righthaven does not possess these rights, since they've licensed them away. The confusion is understandable, but looking at Righthaven's filing, clearly they mean that they "hold" the title--which they do. Righthaven "holds" the title and Stephens Media "holds" the license. They both "hold" an interest in the copyright.
The new filing, I think, shows that Righthaven is not at all worried about these attacks on their standing to sue. In my opinion, they have nothing to worry about as I think they clearly have standing too.
I don't think they're out of the water yet though. It does appear that they misrepresented to the court that Stephens Media stands to have a direct interest in the lawsuits because of the fee-sharing arrangement they have with Righthaven. I also think, having now read the Strategic Alliance Agreement, that the champerty claims have some teeth.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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I can point to post after post after post after post of where Karl has been 100% wrong on some while insisting that he was 100% right. Do you really want to play this game?
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
I missed that he had stopped by. Pretty cool!
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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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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This is absolutely and completely not true. I've quoted the Second Circuit and Nimmer to back this. The other circuit courts I quote reinforce my position.
Where is your support? What is your authority?
Don't give me the statute. As pointed out by Nimmer and the Second Circuit, the statute is misleading on its face. It's tautological.
Show me a court of law that takes your position. You haven't done this, nor do I think you can.
You're simply telling me what you think the law should be, you're not proving that what you're saying is how the law actually is.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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Sigh. You really don't understand any of this. The problem is that you don't grasp any of the fundamentals. I could help you learn some of this, since you seem so interested, but you need to drop the attitude like you know it all. Otherwise, I can't help you.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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Here's my Nimmer and caselaw, Karl. Where's yours?
Davis v. Blige, 505 F.3d 90 (2d Cir. 2007).
I.A.E., Inc. v. Shaver, 74 F.3d 768 (7th Cir. 1996).
Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008).
Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27 (2d Cir. 1982).
Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001).
On the post: Why Arguing That Google Is In The Best Position To Stop Infringement Is Wrong
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I think that's a good analogy. Red flag or apparent knowledge isn't about what you know, it's about what you should know. It's where the law imputes you with the knowledge that you should have known--that you would have known had you not turned a blind eye. The DMCA clearly delineates two levels of knowledge: actual and apparent. Apparent knowledge is more than general knowledge, but less than actual knowledge. It's willful blindness.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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None? Right. Then it has no right to sue.
That's the point. I'm amazed that he's still defending this.
Righthaven owns, i.e. has title, to ALL of the 106 rights. They've granted an exclusive license of those rights to Stephens Media. It is very, very simple.
Do you believe that when you grant someone an exclusive license you are granting them complete ownership? It doesn't work that way.
I'm happy to give you more lessons anytime.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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Prove it. Show me some authority, any authority, to back up your position.
But when you grant an exclusive right to someone else, you lose ownership rights in it, under whatever conditions you granted it.
Prove it. Show me some authority, any authority, to back up your position.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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Had they granted Stephens a non-exclusive license, that would not be true. The key word here is "exclusive," not "license."
You do not appear to understand what it means to hold the title to something. Nor do you appear to understand that an exclusive license is less than ownership.
That is not true. Absolutely none of the rights in 106 were ever, at any time, granted to Righthaven. None of those rights were transferred. They do not own the "title" to any of them.
You simply don't understand what you're talking about. I'm happy to teach you, or point you in the right direction.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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It's that agreement that makes what you seem "clear" a lot less than clear for almost everyone else.
Right, I should have been more careful. When looking only at the individual assignments, it is "clear." That's what Judge Hunt said. And that's what I said in the other thread when we were talking about the amicus brief where Randazza was saying how unclear it was. It wasn't unclear.
Now, we'll see what the judge says about the Strategic Alliance Agreement. I think that only reinforces the fact that the assignment is clear.
On the post: Judge Blocks Former Microsoft General Manager From Working For Salesforce
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On the post: Why Arguing That Google Is In The Best Position To Stop Infringement Is Wrong
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