And what right is that? Well, any of the 106 rights. But if you don't have any of those rights (because you exclusively licensed them away without any reservation of rights for yourself), then what do you own?
Righthaven owns all of the rights under 106. Just because they exclusively granted Stephens Media a license does not mean that they were divested of ownership. They are the legal owner under the Copyright Act. If you grant someone an exclusive license to your work, you still own the work.
Also, it doesn't sound like any infringements were committed while Righthaven was an owner of any exclusive right (even assuming they are an owner of any exclusive right).
I don't think that matters, as the accrued right to sue may be transferred.
Looking at Section 501(b), it states that the legal owner of the right has standing to sue:
The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.
According to 82 A.L.R. Fed. 509:
The 1976 Act repealed the concept of indivisibilty and expanded the ability of transferees of copyright interests to sue. Under § 501(b), original owners, assignees, and licensors continue to have standing to sue. Exclusive licensees, however, as owners of an exclusive right, now have standing to sue without joining the copyright proprietor. Nonexclusive licensees still do not have standing to sue.
I'll see if I can find some relevant Ninth Circuit caselaw.
Re: Re: Re: Re: Re: Re: Re: Re: Re: What owner rights does Righthaven have?
I think you are focusing too much on the terminology of "ownership." If you don't have the right to exclude someone from copying a work, you can't sue to exclude them from copying your work. Righthaven has licensed away its exclusive right to copy, and retained no right of exclusion for itself. How, then, can it sue to exclude someone from copying? IT DOESN'T HAVE THAT RIGHT!
Re: Re: Re: Re: Re: Re: Re: What owner rights does Righthaven have?
It's been a while since I've dealt with real property terminology, but what right are you referring to. What can you alienate? Nothing substantive, since you have no right to possession, use, exclusion, etc.
I can alienate title. You cannot. That's a pretty big right.
Regarding sublicenses and term, etc., it goes to show that Stephens Media doesn't have *all* the rights of an owner. For example, if Righthaven gets all its ownership rights after the license to STephens Media terminates, then it actually has some substantive rights.
I follow the logic, but I'm not aware of any authority that states the license has to be for a limited term. Does anything prohibit licenses without a fixed term?
Otherwise, they have no "rights" that the Copyright Act protects. Simply *saying* you own something is not a right protected by the Copyright Act.
And that's the key. If I've licensed away exclusively all of my exclusive rights under 106, don't I still own those rights for the purposes of the Act? I'm not just "saying" I own them, I do in fact legally own them. I've encumbered my ownership, but I still have ownership.
Re: Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?
Interesting. Who challenged the transfer? Was it a party to the transfer, or was it a third-party like we have here with Righthaven and Stephens Media?
Re: Re: Re: Re: Re: What owner rights does Righthaven have?
You couldn't sell the house (unencumbered) either.
But I could still sell it, even though it's encumbered with your rights of use and enjoyment. I can sell it because I own it. You, on the other hand, couldn't sell it since you don't own it.
If all you've got is "title" (i.e., a piece of paper) without any substantive rights, then it's hard to say you "own" it.
I retain the substantive right of alienation, and that piece of paper reflects that I'm the true owner. I'm the only one who can transfer ownership to another.
Although you do have a good point regarding whether the exclusive licensee can transfer its rights.
Do they have the right to sub-license under their exclusive license? Any approval needed from Righthaven? If yes and no, then it's hard to see *any* right that Righthaven has other than a right to sue.
I'm not sure whether Stephens Media can grant sub-licenses or not. I don't see how that changes the analysis though.
Also, I didn't see if the license is in perpetuity or what (I saw there was a "Term" but not what the term is).
If the license back is somehow limited in scope, duration, etc., there's a stronger argument that Righthaven is in fact the copyright owner.
How does the term affect the legitimacy of the transfer? Is there some rule you're thinking of?
Re: Stop dodging. In what way does Righthaven have owner rights?
Tell us about all the things that Righthaven can do as an owner?
Can't Righthaven turn and transfer their ownership in the copyrights to someone else? As long as they retain this right, they haven't dismembered all of their rights and they remain the true owner, IMO.
Re: Re: Re: What owner rights does Righthaven have?
Righthaven exercised their rights when they agreed to grant Stephens Media an exclusive license.
If you really transferred ownership of your house to me, and I then granted you the exclusive right to use the house, then I still own it, don't I? I have the title. To get a bit Roman on you, I believe that while you would have the rights of usus et fructus ("use and fruit"), only I would have the right of abusus ("alienation"). You couldn't sell the house, for example.
7. Assignment of Copyright Content; Stephens Media License.
7.1 Subject to the other terms and provisions of this Agreement and throughout the Term, Stephens Media shall effect the assignments to Righthaven of copyrights as required by this Agreement (including, without limitation, within the time periods required by this Agreement) by executing a particularized assignment with respect to each copyright and each consistent with (and in form and substance the same as) the scope of assignment as set forth in the fonn of copyright assignment as embodied in Exhibit 1 (each a "Copyright Assignment"). Stephens Media shall provide Notice to Righthaven of each copyright (each a "Notified Copyright") that is required to be the subject of a Copyright Assignment (a "Copyright Assignment Notice") by no later than five (5) Business Days prior to the last day upon which each respective Copyright Assignment is required to be executed by Stephens Media as provided in Section 3.1. Righthaven shall then provide to Stephens Media a conforming Copyright Assignment for Stephens Media to execute with respect to each Notified Copyright within three (3) Business Days after receipt of the Copyright Assignment Notice.
7.2 Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery. To the extent that Righthaven's maintenance of rights to pursue infringers of the Stephens Media Assigned Copyrights in any manner would be deemed to diminish Stephens Media's right to Exploit the Stephens Media Assigned Copyrights, Righthaven hereby grants an exclusive license to Stephens Media to the greatest extent permitted by law so that Stephens Media shall have unfettered and exclusive ability to Exploit the Stephens Media Assigned Copyrights. Righthaven shall have no Obligation to protect or enforce any Work of Stephens Media that is not Stephens Media Assigned Copyrights.
The instant Righthaven took ownership of the rights, by agreement, they licensed them to Stephens Media exclusively. Righthaven is the owner, and Stephens Media is the licensee.
As to the right to block lawsuits or the right of reversion, I don't see how either of those provisions negates the transfer of ownership.
I don't think the transfer is a sham. I do think it's quite fishy, and I'm open to arguments that it's not proper, but nothing I've seen so far convinces me that it's not.
This Copyright Assignment (the "Assignment") is made effective as of _______ (the "Effective Date") by Stephens Media LLC, a Nevada limited-liability company ("Stephens Media"),
In consideration of monetary commitments and commitments to services to be provided and/or already provided by Righthaven LLC, a Nevada limited-liability company, ("Righthaven") to Stephens Media and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Stephens Media hereby transfers, vests and assigns the work depicted in Exhibit A, attached hereto and incorporated herein by this reference (the "Work"), to Righthaven, subject to Stephens Media's rights of reversion, all copyrights requisite to have Righthaven recognized as the copyright owner of the Work for purposes of Righthaven being able to claim ownership as well as the right to pursue past, present and future infringements of the copyright in and to the Work.
Re: Re: Re: Re: Re: Who has all the rights of an owner?
It's clear enough to me. "All copyrights" is all copyrights. As the AC noted, the court would likely look to both documents. Either way, I think the SAA only makes it more clear that ownership of the copyrights is being transferred to Righthaven.
Admittedly, the use of the word "retains" in the SAA was a poor choice of words, as Stephens Media does not retain anything. By agreement, Stephens Media is granted rights anew. But still, the documents together clearly evince a transfer of ownership, in my opinion anyway.
It will be interesting to see what the court does here.
Right, and the argument here is that, effectively, Righthaven and Stephens Media are contracting around the limitation noted in Silvers. By agreement, the only right Righthaven can execute is the right to sue. I don't see the problem with this though. Since ownership is being transferred, Silvers is not applicable.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
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Righthaven owns all of the rights under 106. Just because they exclusively granted Stephens Media a license does not mean that they were divested of ownership. They are the legal owner under the Copyright Act. If you grant someone an exclusive license to your work, you still own the work.
Also, it doesn't sound like any infringements were committed while Righthaven was an owner of any exclusive right (even assuming they are an owner of any exclusive right).
I don't think that matters, as the accrued right to sue may be transferred.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: Re: Re: What owner rights does Righthaven have?
I like the argument. Let me think on it.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Re: What owner rights does Righthaven have?
I can alienate title. You cannot. That's a pretty big right.
Regarding sublicenses and term, etc., it goes to show that Stephens Media doesn't have *all* the rights of an owner. For example, if Righthaven gets all its ownership rights after the license to STephens Media terminates, then it actually has some substantive rights.
I follow the logic, but I'm not aware of any authority that states the license has to be for a limited term. Does anything prohibit licenses without a fixed term?
Otherwise, they have no "rights" that the Copyright Act protects. Simply *saying* you own something is not a right protected by the Copyright Act.
And that's the key. If I've licensed away exclusively all of my exclusive rights under 106, don't I still own those rights for the purposes of the Act? I'm not just "saying" I own them, I do in fact legally own them. I've encumbered my ownership, but I still have ownership.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: What owner rights does Righthaven have?
But I could still sell it, even though it's encumbered with your rights of use and enjoyment. I can sell it because I own it. You, on the other hand, couldn't sell it since you don't own it.
If all you've got is "title" (i.e., a piece of paper) without any substantive rights, then it's hard to say you "own" it.
I retain the substantive right of alienation, and that piece of paper reflects that I'm the true owner. I'm the only one who can transfer ownership to another.
Although you do have a good point regarding whether the exclusive licensee can transfer its rights.
Do they have the right to sub-license under their exclusive license? Any approval needed from Righthaven? If yes and no, then it's hard to see *any* right that Righthaven has other than a right to sue.
I'm not sure whether Stephens Media can grant sub-licenses or not. I don't see how that changes the analysis though.
Also, I didn't see if the license is in perpetuity or what (I saw there was a "Term" but not what the term is).
If the license back is somehow limited in scope, duration, etc., there's a stronger argument that Righthaven is in fact the copyright owner.
How does the term affect the legitimacy of the transfer? Is there some rule you're thinking of?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?
Correct. Righthaven can transfer their ownership, encumbered as it is by Stephens Media.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Stop dodging. In what way does Righthaven have owner rights?
Can't Righthaven turn and transfer their ownership in the copyrights to someone else? As long as they retain this right, they haven't dismembered all of their rights and they remain the true owner, IMO.
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Stop dodging. In what way does Righthaven have owner rights?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: Re: What owner rights does Righthaven have?
If you really transferred ownership of your house to me, and I then granted you the exclusive right to use the house, then I still own it, don't I? I have the title. To get a bit Roman on you, I believe that while you would have the rights of usus et fructus ("use and fruit"), only I would have the right of abusus ("alienation"). You couldn't sell the house, for example.
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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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As to the right to block lawsuits or the right of reversion, I don't see how either of those provisions negates the transfer of ownership.
I don't think the transfer is a sham. I do think it's quite fishy, and I'm open to arguments that it's not proper, but nothing I've seen so far convinces me that it's not.
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Re: What owner rights does Righthaven have?
On the post: Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Re: Re: FUD
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
Re: Re: Re: Re: Re: Who has all the rights of an owner?
Admittedly, the use of the word "retains" in the SAA was a poor choice of words, as Stephens Media does not retain anything. By agreement, Stephens Media is granted rights anew. But still, the documents together clearly evince a transfer of ownership, in my opinion anyway.
It will be interesting to see what the court does here.
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