@abc gum wrote: “Maybe you will see what’s wrong with it after you start getting two or three pre-settlement letters in the mail every week.”

Gregg DesElms’s response: Please don’t misunderstand me. I agree that the tactics of LVRJ, et al, would at least appear to be over the top…. probably, in fact, are. Who knows.

But we seem to have two different issues, here. One is how abominably LVRJ, et al, would seem to be behaving; and the other is LVRJ’s right to use copyright law to keep others from capturing its pageviews which contain its advertising from which it rightfully derives revenue.

I’m a socio-political progressive… a lifelong Democrat… a so-called “bleeding-heart liberal.” It sometimes surprises people, then, that I can be so pro-business under certain circumstances. And one of those circumstances is when it comes to something so basic to our capitalist system as a business’s right to exist and thrive by means of its receipt of a fair price in exchange for its provision of goods and/or services. My concern about the complaints against LVRJ, et al, is that at least SOME of them would seem to wish to deny LVRJ, et al, its most basic right to a fair price in exchange for its product… in this case, its copyrighted materials to which US copyright law — flawed though it may be for the time being — allows to be assigned a value.

For LVRJ, et al’s aforementioned abominable behavior, I personally believe that it should be sanctioned if, in fact, it turns out that it has done the bad things that are alleged around here. I can think of SEVERAL states where the Court would simply not tolerate such shenanigans.

But LVRJ has the absolute right to use copyright law to keep others from publishing substantially all of its content on their own web sites, thereby depriving LVRJ of the revenues which it would have derived from the page views resulting from said content being viewed on LVRJ’s own web site, alone. A link-back from the offending web site to the content on LVRJ’s web site is simply not adequate; and I’m astonished, frankly, to read here that anyone thinks it is.

Do I really need to make the any-dope-can-intuit point that few (if any) who read the content on the offending site will then click on its link back to the source LVRJ site (one source of revenues to LVRJ: the pageviews or impressions); and/or the other c’mon-who-can’t-figure-out point that even those who do click back are unlikely to spend enough time there to be sufficiently rapt by its ads to then click on any of them (the other source of revenue to LVRJ: the clicks-thru)?

Obviously, LVRJ can’t control what people publish of its content on their own sites pursuant to “fair use.” And if LVRJ, et al, is disingenuously pursuing people for that, then that’s over the top, too; and, if so, then there should, again, be sanctions… at least once the Court is able to see the abusive pattern.

I’m also not wild about the letters LVRJ, et al, sends out, knowing that most people will settle; and the settlement amount intentionally being just less than what it would cost the recipient to defend himself/herself, thereby making settlement all the more attractive. That’s a tactic not dissimilar to what domain name squatters use. They know the minimum which must be invested to win a WIPO hearing, and the cost to actually pursue it, and so they routinely ask for a little less than all that in exchange for the domain name right after getting the first threatening letter… and they usually get it.

Either thing is despicable. No argument here.

I also appreciate how despised LVRJ, et al, has become for suing first and asking questions later. That’s also just not the right approach. It’s expedient, though… and, like it or not, the law clearly allows it. But it’s still not right… not if being reasonable and humane is on anyone’s agenda.

But the reason Righthaven is doing it is clear. It’s intending to not merely trouble those whom LVRJ, et al, have caught purloining its content; rather, it’s bygod intending to be the freakin’ angel of freakin’ darkness to them…

…with the obvious intend of the word spreading across the Internet about it, and thereby intimidating others from even THINKING of doing it. It’s called making an example.

I’m afraid that if I were counsel for LVRJ, and it asked me if that was a strategy worth considering, I’d have to answer that it technically was, but that I wouldn’t recommend it on all manner of general, overall fairness and reasonableness grounds. But if my client directed me to do it, and so doing was lawful, then I’d have to either vigorously comply, or equally vigorously return my client’s retainer so he can give it to some other lawyer.

Even the criticism around here of Righthaven for purchasing the rights to something which had had its copyright violated by someone BEFORE said purchase; and then Righthaving going after said someone for its copyright violation AFTER said purchase, is simply flawed thinking.

If the Court deprived LVRJ and Righthaven of its ability to conduct such a transaction, then the said Court would be flying in the very face of both the letter and spirit of both copyright law, and the Uniform Commercial Code (UCC).

Part of the value to a buyer of LVRJ’s content is not just what could be earned through advertising from publishing it (or whatever other obvious uses the buyer can think-up for it), but also the value of what could be derived from judgements or settlements payable to the content’s new owner resulting from others having violated its copyright, even prior to its sale. The potential “asset” which is what could be derived from copyright violation judgements transfers from the seller to the buyer along with the content itself.

C’mon, folks: A community college sophomore taking a 200-level business law course learns that.

Let’s say, hypothetically, that Able wishes to purchase a retail business from Baker; and let’s say that Able and Baker agree that a fair price for said business is three times its annual revenues.

Let’s say, though, that Chase had recently accidentally driven his car through Baker’s front window and had caused $100,000 in real damage, plus the loss to Baker of some not precisely known, but nevertheless estimable amount in revenues lost during repairs (plus whatever else for things like duress, inconvenience, attorney fees, court costs, etc.).

In such case, would not the true value of Baker’s business for purposes of selling it to Able be not only thrice its annual revenues, as Able and Baker had already agreed; but also the $100K in actual damages plus whatever else the Court decides (or is settled upon) between Baker and Chase?

For a judge to deny Righthaven the ability to purchase the rights to LVRJ’s content even AFTER its copyright had been violated, and then to sue pursuant to said violation and derive value therefrom once Righthave owns said rights, would be the same as a judge ordering in our hypothetical that Baker could not consider the amount that Chase will ultimately be paying to Baker’s business as part of the net value of said business for purposes of selling it to Able.

The UCC is clear: Unless otherwise agreed to, when one buys a thing, one buys, along with it, its both assets and liabilities. If said thing is a business, then a pending judgement in said business’s favor is as much an asset as its payables are liabilities; and so the potential value of said judgement factors-in to said business’s net value… and, more importantly, may be transferred as part of a sale of said business.

That’s why the UCC prohibits one from selling either a business, or substantially all of its assets, without first notifying one’s creditors of one’s intent to so do, so that said creditors may protest if they believe that either the assets, or the buyer, would not satisfy the debt owed to the creditor which either the buyer would then owe if its the entire business and all its both assets and liabilities are being transferred to said buyer, or which the seller would then owe if it’s only substantially all the assets (but not any of the liabilities) being transferred to said buyer.

When LVRJ sells the rights to its content, the same rules apply. Unless otherwise agreed to by the parties, the value of the content includes any potential (or actual) judgements in its favor which exist at the time of its sale, as well as any potential (or actual) judgements against it at that time.

If the content’s copyright had been violated prior to its sale, then the potential value of whatever judgement may be ultimately won as a result transfers with the sale of the content to its new owner… just like any other, in effect, receivable. Granted, said “receivable,” if it can even be called that at that point, is speculative, and so doesn’t really become a receivable, from an accounting standpoint, until there’s a judgement in the content’s favor. But, still, in terms of the seller’s and buyer’s agreement as to the value of the content, for sales purposes, the UCC says that the potential of the judgement amount resulting from the content’s copyright having been violated even BEFORE the sale has transferable value. Period.

Moreover, to complicate things, in most states, the buyer’s payment to the seller of the not-quite-yet-an-asset part or aspect of the transferred goods (the potential income from suing for copyright violations against the content, in this case) can be conditioned on the buyr’s ultimately actually receiving any income therefrom…

…and right there is where the APPEARANCE (and I stress that word) of LVRJ taking some kind of cut from Righthaven’s suit proceeds could happen. The parties can agree that the seller can transfer the content to the buyer, and accept only its value sans potential lawsuit income; and then, by agreement, the value of the lawsuit part of the sale price can be paid by the buyer to the seller if the buyer, in fact, ultimately succeeds at obtaining revenue from a lawsuit related to the content’s having had its copyright violated.

No on has the right, in any case, to stop the new owner of the content from then going out and trying to convert that potential judgement amount into some kind of actuality… otherwise, it was never potential value in the first place… and that would be contrary to the UCC’s both spirit AND letter. Forget copyright for a moment: What can be transferred as part of the sale of something, including revenue not yet earned (or liabilities not yet paid) is clear and unambiguous in the UCC.

Again, I realize that there are more issues than that; and that Righthaven has acted, apparently, disingenuously in several cases along the way; and that there are other troubling concerns. But those are separate issues from the parties’ rights under copyright law and the UCC.

Look, just because one (LVRJ, et al, in this case) can do a thing doesn’t mean that one should. Yet, that said, the fact that one could if one wanted to (and was willing to endure the criticism) means that one bygod ultimately can… no matter who hates it (or one) for so doing. In this case, LVRJ, et al, is willing to endure the criticism, and the law says it can behave as it has, and so it’s so doing. And there’s nothing anyone can do about it.

Perhaps what we should be talking about, here, then, is how the web site owners may comply with the law, and so will be less likely to run afoul of LVRJ, et al — or any OTHER copyright holder, for that matter — in the future.

Publishing substantially all of a copyrighted work is both wrong and actionable, under the law. Period. A mere link-back to the source of the copyrighted material won’t feed the bulldog…

…and, by the way, this web site’s turning around and then characterizing that as that LVRJ, et al, “doesn’t like link backs” is also disingenuous. LVRJ, et al, unless I’m mistaken in my having figured this all out, isn’t saying that it doesn’t like link-backs, categorically. Rather, it’s saying that link-backs are insufficient to cure the harm caused by someone publishing substantially all of its copyrighted content on any web site other than its own; and so, therefore, it doesn’t like link-backs not categorically but, rather, as a means of the offender trying to somehow make it it alright.

Framing it as though LVRJ, et al, doesn’t like link-backs, just categorically, bereft of context, is punching below the belt. It’s the rough analog of saying that Hitler didn’t like people who wore yellow six-pointed stars on their clothes. Everything — and I mean EVERYTHING — has context. The characterization of LVRJ, et al, simply not categorically liking link-backs was intentionally misleading. Shame.

The bottom line is that one may, on one’s web site (or blog or whatever) only publish what is “fair use” under copyright law… a snippet… a small amount to make a point or to refer, or to educate, etc. That’s it.

If a blogger publishes substantially all of the LVRJ’s content — even with a link-back — which is far in excess of what “fair use” would allow, then said blogger should not be surprised to ultimately learn that there are consequences to that kind of bad behavior.

That’s the point that LVRJ, et al, is trying to drive home, and it has simply chosen to do it like a bull in a china shop instead of deftly and fairly and what most people would consider more reasonably and humanely. LVRJ, et al, has decided to take no prisoners as a means of warning those who are considering violating its copyright to think twice.

Similarly, the Hun chopped off the heads of its conquered infantry and put them at the top of acres of pointed stakes at the outskirts of its conquered territories to dissuade those contemplating coming after them. LVRJ, et al’s is a Hun-like “fall on ’em like an old building” approach, clearly intended to slam-shut the sphincters of bloggers and web site owners everywhere.

And, oh, look: It would certainly appear to have intimidated @abc gum, for one.

I’m not saying that copyright law isn’t screwed-up. There are issues. But the law, UNTIL AND/OR UNLESS IT’S CHANGED, is the law. Web site owners, bloggers, etc., need to be mindful of that; and the need to FOLLOW the law.

Life, I tell you, is just so much easier when you simply follow the law. If the law’s wrong, then don’t break it, for godsake; rather, CHANGE it.

The way our system is structured, you can only just up and ignore/break a given law if it is facially (and that’s the operative word: prima facie) unconstitutional; and you also have the time, energy and money to fight in court your having run afoul of it until you get it in front the Supreme Court to have it DECLARED unconstitutional (and so, then, your having originally run afoul of it also declared inconsequential).

@abc gum wrote: “It’s not a matter of if, it is a matter of when.”

Gregg DesElms’s reply: Maybe for you… I dunno. But I, for one, FOLLOW THE LAW. See above. The only people who should be worried about it being a matter of “when,” and not “if,” are those who tempt fate by breaking the law…

…or, in fairness, perhaps by only APPEARING to have so done if it’s, in fact, true that Righthaven has been reckeless about whom it pursues.

I’m sorry to take this position where I know it is so unwelcome. But it’s time the entire situation is seen for what it actually is, and not what some around here wishes it were. I’m not saying the LVRJ, et al, is blameless or innocent or isn’t behaving badly. All I’m saying is that… well… maybe this joint should develop a little more respect for the law, no matter how much it disagrees with it. If it spent as much energy on getting the law changed as it does whining about it, maybe something good could happen.

And, by the way, by way of disclosure: I have never even read the LVRJ, much less know anyone there, or have anything to do with it. Ditto Righthaven. Nor am I a plaintiff’s attorney. I’m not expressing these opinions because I have some kind of vested interested. I’m expressing them because right is right, and wrong is wrong, and fair is fair…

…and at least SOME folks around here would at least SEEM to have gotten all confused about that.

Sorry to have raised anyone’s hackles.

____________________________________
Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com