Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven

from the there-go-a-bunch-of-cases... dept

In our last post, we discussed the District Court's ruling to unseal a key document in one of the Righthaven cases, in which the court slammed Righthaven's tactics. But what was in the actual document. Well, it's quite a doozy. While Righthaven and Stephens Media resisted handing it over, the EFF was finally able to get a copy of the initial agreement between Righthaven and Stephens Media. One of the key claims that some defendants had made was that Stephens was not really assigning the copyright to Righthaven, and thus the lawsuits were a sham.

The details of the agreement certainly suggest that's the case. Despite the claims that Stephens was assigning the copyrights to Righthaven and that Righthaven had full control over the copyrights and the decisions concerning who to sue, the actual agreement between the two companies tells a very, very, very different story. Stephens only assigned the rights to sue. The agreement is pretty explicit on this point:
Righhaven 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.
On top of that, it is revealed that Stephens Media gets 50% of all the money that Righthaven makes from these lawsuits, showing that it still has a substantial interest. Digging deeper, we learn that Righthaven doesn't even have the ability to decide who to sue without Stephens' approval:
Should Righthaven desire to sue, however, Stephens Media still controls whether suit will be brought through its right to send a "Declination Notice," upon receipt of which "Righthaven shall not take any Infringement Action with respect to the particular putative infringer set forth in any Declination Notice."... The bases upon which Stephens Media may stop a suit -- even after it has "assigned" the purported right to sue -- include whenever the person targeted "is a present or likely future valued business relationship of Stephens Media or otherwise would ... result in an adverse result to Stephens Media."
On top of that, even if it gives the okay to sue, it can later changes its mind. Stephens gets a "Right of Reversion," that lets it take back the copyright assignment "at any time." That doesn't look like a real copyright assignment at all. Oh, and if Righthaven decides on its own not to sue someone... Stephens Media gets the "copyright" back.

Keep digging: the idea that Righthaven and Stephens are two separate companies is called into question. As part of the investment, "one of the owners of Righthaven must be a 'Stephens Media Affiliate'."

This is effectively death for Righthaven's business model in these cases. Why? Because under Silvers vs. Sony Pictures, you can only assign one of the specific rights designated in Section 106 of the Copyright Act. You cannot simply assign "the right to sue," because that's a form of "selling lawsuits." Righthaven and Stevens had been insisting that there was a full copyright assignment here. But the agreement between the two companies makes it pretty clear that this is not at all true. I have to admit I'm curious to find out how the main Righthaven defender in our comments -- who argued that this whole line of legal attack was "intellectually dishonest" -- has to say about this now...

Effectively, this may end most, if not all, of Righthaven's current lawsuits on behalf of the LVRJ/Stephens Media. I feel bad for all the sites that already settled and paid up, because it appears that they probably didn't need to do so. It's not clear how this revelation may impact the suits on behalf of MediaNews and the Denver Post... but our next post will deal with some issues related to those cases.


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  1.  
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    Lisa Westveld (profile), Apr 18th, 2011 @ 7:50am

    I think a sadistic judge should look at the intent behind the transfer of copyright and thus decide that since Righthaven claimed to have the proper copyright, without Stephens making any notion about this being untrue, thus the copyrights are now with Righthaven. Doesn't matter that written statements claim otherwise, when Righthaven claimed to own copyright, Stephens didn't object, thus from now on, Righthaven has full rights on the copyright! And Stephens Media has nothing...

    Would be pretty nasty, since Stephens was hoping to make some nice profits this way... And now, they'd have none.

    Don't think this would happen, though. Would be justice, though...

     

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    Hiiragi Kagami (profile), Apr 18th, 2011 @ 8:03am

    Huh?

    "I feel bad for all the sites that already settled and paid up, because it appears that they probably didn't need to do so."
    Now that this document has been discovered, wouldn't this be sufficient for those who paid to file cases against Righthaven for extortion, at the very least?

    I could easily see a class action lawsuit forming as we read these articles on Techdirt, though it probably would suit the plaintiffs to file individually, multiple times in all courts allowable by law to put Righthaven out of business once and for all.

    And speaking of business, why wouldn't this document not be allowed to give Nevada the right to remove the business license from Righthaven?

    Someone needs to follow the money a bit more, because something's not adding up here.

     

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  3.  
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    Lirodon, Apr 18th, 2011 @ 8:04am

    And I am going to presume that Silvers vs. Sony is the reason why contributor license agreements are made the way they are to begin with.

     

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  4.  
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    Anonymous Coward, Apr 18th, 2011 @ 8:12am

    We may need some help with the legal side of this...

    Say Mike, why don't you give PJ from Groklaw a call, and see is she would be willing to provide some analysis of the Legalize in this case for us. I know she wants to step down, but this would be done as a "Guest Analyst", and she wouldn't have the headache of running the site and all the carp that goes with it....

    Just a thought.

     

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  5.  
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    Anonymous Coward, Apr 18th, 2011 @ 8:13am

    Re: We may need some help with the legal side of this...

    Legalese... not Legalize. Sorry.

     

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  6.  
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    Anonymous Poster, Apr 18th, 2011 @ 8:16am

    Can the people who settled up now go back and sue Righthaven/Stephens Media for extortion and/or fraud?

    After all, they gained those settlements through fraudulent copyright transfers and lies to those they took settlements from.

     

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  7.  
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    Jober (profile), Apr 18th, 2011 @ 8:33am

    Na na /
    Na na na na /
    Hey, hey, hey /
    Good-byyyyye

     

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  8.  
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    Scote, Apr 18th, 2011 @ 8:41am

    Are Righthaven's Copyright Registrations Fraud?

    Didn't Righthaven file Federal Copyright registrations on all the works it claimed to have rights to so that it could sue for full statutory damages? And if it only licensed the unlicenseable right to sue, wouldn't that mean that all of those registrations are frauds?

     

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    FUDbuster (profile), Apr 18th, 2011 @ 8:59am

    I have to admit I'm curious to find out how the main Righthaven defender in our comments -- who argued that this whole line of legal attack was "intellectually dishonest" -- has to say about this now...

    The only thing I had to go on at the time was one of the copyright assignments we were looking at, and that document clearly states that "all copyrights" are assigned to Righthaven. I stand by what I said in that thread. Looking only at that assignment, I think it's "intellectually dishonest" to suggest that not all of the rights are transferred.

    But what to make of this "Strategic Alliance Agreement"? http://randazza.files.wordpress.com/2011/02/righthaven-strategic-agreement.pdf

    Under Section 7.1, Stephens Media agrees to assign all of the rights to Righthaven in a particularized assignment, the form of which is found Exhibit 1 at the end of the Agreement. This matches the assignment that we were talking about in the other thread. This assignment assigns "all copyrights" to Righthaven.

    Under Section 7.2, Righthaven then agrees to grant Stephens Media an exclusive license to exploit the assigned work.

    This is quite clever. Perhaps a bit too clever. But by my read, Righthaven is still technically the owner of all of the copyrights. I don't see how this new evidence changes that fact.

     

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  10.  
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    Ken, Apr 18th, 2011 @ 9:03am

    Righthaven Filed False Statements in EVERY lawsuit

    Besides filing false claims with the US Copyright Office Righthaven every lawsuit Righthaven has filed have falsified information.


    "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.."

    However in their court filings:

    7. Righthaven is the owner of the copyright in and to the Work.

    30. Righthaven holds the exclusive right to reproduce the Work, pursuant to 17

    31. Righthaven holds the exclusive right to prepare derivative works based upon the
    Work, pursuant to 17 U.S.C. 106(2).

    32. Righthaven holds the exclusive right to distribute copies of the Work, pursuant to
    17 U.S.C. 106(3).

    33. Righthaven holds the exclusive right to publicly display the Work, pursuant to 17

     

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    hobo, Apr 18th, 2011 @ 9:17am

    Typo?

    In the paragraph beginning, "This is effectively death for..." The second full sentence states, "Because under Silvers vs. Sony Pictures, you can only assign one of the specific rights designated in Section 106 of the Copyright Act." Should it be, "Because under Silvers vs. Sony Pictures, you can't only assign one of the specific rights designated in Section 106 of the Copyright Act."?

     

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    Dark Helmet (profile), Apr 18th, 2011 @ 9:30am

    Re:

    "This is quite clever. Perhaps a bit too clever. But by my read, Righthaven is still technically the owner of all of the copyrights. I don't see how this new evidence changes that fact."

    Why would the strategic alliance agreement trump the contractual agreement found during discovery?

    I can't get to your link (damn webfilter), so I can't tell if hte SAA is binding by signature or if it's the stuff of press releases, but what was found during discovery appears to be a signed and binding contract....

     

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  13.  
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    Scote, Apr 18th, 2011 @ 9:47am

    Righthaven's Copyright Assignents Were Fishy From the Start

    The only thing I had to go on at the time was one of the copyright assignments we were looking at, and that document clearly states that "all copyrights" are assigned to Righthaven."


    No. That is FUD on your part. FUDPacker would be a more appropriate moniker for you.

    From the start Righthaven's copyright claims were suspicious. They never provided any proof of any specific transfer of rights, neither what work they had rights to nor what specific rights to the work they allegedly had. Instead, they claimed to have this:

    "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 seek redress for past, present and further infringements of copyright"


    Note the lack of any mention of rights to exploit the work for anything other than lawsuits.

    If they *really* had full rights they would have had an explicit statement of those rights, and they'd have had the right to exploit the work for actual use, not some blatantly fishy assignment of lawsuit rights that came with a "right of reversion" by Stephens media--and we knew the right of reversion existed *before* the most recent revelations came out. From the December 7th Democratic Underground opposition to Righthaven motion for voluntary dismissal:

    "The copyright records reflect that Stephens Media (through its control of the LVRJ) was the “author” of the Article as a work made for hire. Compl., Ex. 4. However, neither Stephens Media nor the LVRJ first registered the copyright; Righthaven did that on July 9, 2010, claiming rights through assignment by “written agreement.” Compl. ¶ 30, Ex. 4. Contrary to Righthaven’s representation in obtaining this copyright registration, no such assignment had occurred by that date. Stephens Media’s declaration attaches an assignment dated July 19, 2010, ten days after the registration date. Dkt. 38, Ex. 1. Moreover, the entire Article remains publicly available on the LVRJ website at no cost, with copyright notice credited to the LVRJ, not Righthaven. Declaration of Kurt Opsahl (“Opsahl Decl.”) ¶ 3. The purported assignment reflects that Stephens Media continues to own a “right of reversion” in the Article and is receiving unspecified “monetary commitments” from Righthaven.


    There was never any sound reason to believe that Righthaven's putative assignment of rights was above board. So your claim, FUDBoy, to have been duped by lack of information is pure, disingenuous FUD.

     

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  14.  
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    Anonymous Coward, Apr 18th, 2011 @ 9:51am

    Re:

    A subject upon which I have expressed strong views during my many years of law practice is the propensity for counsel having little, if any, substantive experience practicing law in areas of legal specialization such as copyright law. This is particularly true with respect to licensing.

    As I read the just released agreement I was struck by the fact that the rights accorded by copyright law and the language of the agreement are treated in a quite casual manner. Merely by way of example, "Exploit" is defined in terms of "make, use, sell...", and yet these are terms of art typically asociated with patent law, and not copyright law. Hence, it is in my opinion just one area of the agreement that is not altogether clear.

    It is axiomatic that only an "owner", or an exclusive licensee of all or substantially all of one or more rigths under the pertinent copyright, is the party who may rightfully bring an enforcement action. As I read the assignment form attached to the agreement, it does not "spring" out at me just what rights are "owned" by the assignee since the assignment form only speaks in the most general of terms in attempting to transfer "ownership", and even then its focus is on attempting to assign just enough, undefined rights necessary to establish the assignee as the "owner" for purposes of filing suit.

    My comment here should not be understood to suggest that the agreement and the assignments are a sham transaction, but only that they appear to raise more questions than they answer due to their failure to track in the bodies of the agreement and the assignments the rights specifically enumerated in Title 17.

    Quite candidly, I do believe that a properly structured agreement and assignments could have been reduced to paper, but not without difficulty. Unfortunately for the plaintiff, it is not clear to me that this is the case here.

    DISCLAIMER: The agreement does not lend itself to a quick read. My comments above are based merely upon my experience in licensing and my observation that the language of the documents do not closely track standard practices in the preparation of complex business arrangements associated with matters such as this.

     

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  15.  
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    FUDbuster (profile), Apr 18th, 2011 @ 9:53am

    Re: Re:

    The SAA is the overarching contractual agreement between Righthaven and Stephens Media. They then do a particularized assignment for each work that gets assigned to Righthaven. These assignments are governed by the SAA, and at the very moment ownership of the rights gets transferred to Righthaven, Stephens Media obtains via license the exclusive rights to "exploit" the work.

    It's a bit too clever because they are essentially contracting around the holding in Silvers. Can they do this? I don't see why not. I could be persuaded by a good argument, though. This is pretty fish- smelling stuff.

     

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  16.  
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    Anonymous Coward, Apr 18th, 2011 @ 9:57am

    Re: Re:

    In most (or at least many) cases, contracts like these are going to be "read together" as integrated agreements (although that might depend on which state's law controls), so that neither "trumps" another, but they are read as a single agreement.

    Based only on FUDbuster's post, it sounds like the "alliance" agreement does not assign copyrights, but provides that copyrights will be assigned under certain circumstances and under a certain form attached to the "alliance" agreement. If they have executed any full copyright assignments for the works in question (in addition to the "alliance" agreement), I'm not sure if there's really a problem for them.

     

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  17.  
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    Anonymous Coward, Apr 18th, 2011 @ 9:58am

    Re: Re: Re:

    I should note that if they *haven't* executed a full assignment for the works in question, and are relying on the "alliance" document by itself, there may be a problem.

    Also, if the infringement occurred before the execution of a full copyright assignment, that may prevent another problem as far as damages go (although I haven't looked at the law in that area recently).

     

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  18.  
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    Anonymous Coward, Apr 18th, 2011 @ 10:01am

    Re: Re:

    Seriously. I believe this is what ultimately sunk the SCO lawsuit as well.

    The inteneded transfer of the Unix business from Novell to Santa Cruz was apparently drafted by people with little experience in copyrights or businesses that depend on copyrights.

    Turns out, several years and lots of litigation expenses later, a jury says the copyrights were never transferred.

     

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  19.  
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    Berenerd (profile), Apr 18th, 2011 @ 10:03am

    Re:

    I was actually thinking it should now give those who paid the right to sue both righthaven and the media people for false representation. IE Fraudulent claims. Righthaven claimed to own the copyright, when they didn't, threatening people with lawsuits that they had no right to threaten with causing people to pay them money. I would say, 35k/case? Maybe 50k for punishment?

     

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  20.  
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    FUDbuster (profile), Apr 18th, 2011 @ 10:05am

    Re: Re:

    I agree that the whole assignment of rights could be more clearly worded, but I think at the end of the day they are clear enough: Righthaven owns the rights, and Stephens Media is granted an exclusive license.

    The implication from the critics is that such an agreement is not proper. Is there any reason to think so, in your opinion?

     

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  21.  
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    Anonymous Coward, Apr 18th, 2011 @ 10:05am

    Re:

    I was going to point that out, but any time I point out something that's wrong I get accuse of missing *the point* of the article.

     

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  22.  
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    FUDbuster (profile), Apr 18th, 2011 @ 10:12am

    Re: Re: Re: Re:

    They are executing a separate assignment for each work that gets transferred. This assignment occurs after the infringement has started (at least for some of the defendants). I don't think this has been a problem for Righthaven though as I believe that statutory damages are still available to them.

     

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  23.  
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    Scote, Apr 18th, 2011 @ 10:15am

    Who has all the rights of an owner?

    In what meaningful way do you claim Righthaven is the owner? Stephens Media has veto power on all lawsuits on the works Righthaven allegedly "owns." Stephens Media **retains** all rights except the right to sue, except it has that, too, because it has a right of reversion, and the right to sue upon reversion. And it doesn't have to buy the rights back, it only has to pay Righthaven any legal fees used, if any, to litigate that particular work. How in any material way does Righthaven "own" the rights?

     

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  24.  
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    Anonymous Coward, Apr 18th, 2011 @ 10:16am

    Re: Re: Re:

    Your comment touches upon what has long been a major concern. I cannot begin to count the times I have been brought into a legal dispute, reviewed all of the predicate documents purporting to parse rights associated with patents, copyrights, trade secrets, etc., and then left with the firm and definite conviction that I have been handed much worse than a "sow's" ear to try and turn into a "silk purse". It can be done, and I have done it, but how much easier and more predictable the outcome if only the agreements had been prepared in the first instance by counsel having intimate knowledge of the relevant law.

    My education pre-law was within engineering disciplines. While I never served as an engineer (I served as an officer within naval aviation), at least I knew that an engineering design is reduced to some form and then tested to see if it works. In an electronic circuit you flip a switch and a light bulb either turns on or it does not.

    Unfortunately, legal instruments to not have electrical contacts, so no one really knows if the bulb will light. That comes much later when a court give you a thumbs up or down. Thus, one of the everyday difficulties in the practice of law.

     

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  25.  
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    Scote, Apr 18th, 2011 @ 10:19am

    No, Mike is right. He means you can't assign a right to sue. It isn't an assignable right under Section 106. Instead you have to assign one of the rights in 106, and *then* you have a right to sue if that assigned right is infringed. Righthaven doesn't have any of the Section 106 rights, only the right to half the profits from litigation.

     

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  26.  
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    FUDbuster (profile), Apr 18th, 2011 @ 10:23am

    Re: Who has all the rights of an owner?

    If I grant you the exclusive right to use my lawnmower, I still own the lawnmower, and I can sue someone if they violate my rights in it.

     

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  27.  
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    Anonymous Coward, Apr 18th, 2011 @ 10:29am

    Re: Re: Who has all the rights of an owner?

    If I grant you the exclusive right to use my lawnmower, I still own the lawnmower, and I can sue someone if they violate my rights in it.

    Right right. And if someone takes the lawnmower from a person you provided it to, both of you can sue for return of the lawnmower, thus receiving one lawnmower each. Brilliant.

     

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  28.  
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    FUDbuster (profile), Apr 18th, 2011 @ 10:31am

    Re: Righthaven's Copyright Assignents Were Fishy From the Start

    Are you arguing that the rights were never assigned to Righthaven in general? Or are you only talking about the Democratic Underground case?

     

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  29.  
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    FUDbuster (profile), Apr 18th, 2011 @ 10:33am

    Re: Re: Re: Who has all the rights of an owner?

    It doesn't work like that. ;)

     

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  30.  
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    Mike Masnick (profile), Apr 18th, 2011 @ 10:46am

    Re:

    Typo?

    In the paragraph beginning, "This is effectively death for..." The second full sentence states, "Because under Silvers vs. Sony Pictures, you can only assign one of the specific rights designated in Section 106 of the Copyright Act." Should it be, "Because under Silvers vs. Sony Pictures, you can't only assign one of the specific rights designated in Section 106 of the Copyright Act."?


    Nope. What I said is correct. There are certain rights in the Copyright Act under section 106. And its only those rights you can assign. The right to sue is not one of them...

     

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  31.  
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    Anon, Apr 18th, 2011 @ 10:52am

    Has this been posted?

    Apparently some defendants have already used this new information in moving to dismiss their cases. According to this article, they argue that Righthaven doesn't have the right to sue them and their cases should be dismissed.

    http://www.lasvegassun.com/news/2011/apr/17/attorneys-say-new-evidence-shows-fraud-rig hthaven/

     

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  32.  
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    Scote, Apr 18th, 2011 @ 10:53am

    Re: Re: Who has all the rights of an owner?

    Invalid analogy. Copyright is a special animal subject specifically to statue, and the right to sue is not separable from other exclusive rights.

    But, if we were going to use your FUDlicious lawnmower analogy...

    If FUDlicious Media assigns "all rights" to Trollhaven, but retains all rights but the right to sue (with veto power and an unlimited right of revision to the right to sue) then where is Trollhaven's licensed lawnmower? Oh, right, they don't have it. There is no lawnmower in their garage because you didn't license the rights Trollhaven would need to actually use it, posses it or loan it to anybody for any purpose. So nobody can steal it from them. Nobody can violate their rights to it, because they don't have any except the right to sue--which isn't an assignable right under the Copyright Act.

    You are one meretricious, Rovian piece of work.

     

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  33.  
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    Anonymous Coward, Apr 18th, 2011 @ 10:57am

    Re: Re: Re: Re:

    It's the classic problem. People go to an attorney to fix a problem once it's f'ed, when they could have spent a lot less on an attorney in the intitial stages so they wouldn't have a problem in the future.

    Of course, sometimes you spend the money on an attorney who doesn't really know what s/he's doing, and it cost's you a lot more down the road. That's got to be frustrating for a client.

     

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    FUDbuster (profile), Apr 18th, 2011 @ 11:00am

    Re: Re: Re: Who has all the rights of an owner?

    Please drop the personal attacks. I'm trying to have a friendly discussion.

    The key here is whether ownership transferred to Righthaven. I think between the SAA and the individual assignments, it's clear that it did.

     

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  35.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:05am

    Re: Re:

    "you can only assign one of the specific rights designated in Section 106 of the Copyright Act."

    This is just not true, and Silvers v. Sony Pictures recognizes that. You can, for example, assign the right to reproduce and the right to display, but not the right to create derivative works. You can assign a copyright "in whole or in part."

    The only thing Silvers says you can't do is assign a "right to sue" without assigning the particular exclusive right on which the lawsuit is based.

     

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    Dark Helmet (profile), Apr 18th, 2011 @ 11:06am

    Re: Re: Re: Re: Who has all the rights of an owner?

    Agreed on dropping the attacks, being as how the discussion thus far has been fairly logical and cordial.

    Having said that:

    "The key here is whether ownership transferred to Righthaven. I think between the SAA and the individual assignments, it's clear that it did."

    There may be an argument on both sides, but you can't really mean "clear", can you? At the very least the combination of both documents muddies the water and I would think that, regardless the SAA, contractual arrangements on individual works would be the primary "go to" for litigation involving that work.

    Again, why are we referring to the SAA as the trump document?

     

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    FUDbuster (profile), Apr 18th, 2011 @ 11:13am

    Re: Re: Re:

    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.

     

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  38.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:16am

    Re: Re: Re: Re:

    Well, depending on the limitations in the overall agreement, any particular assignment agreement might be conflicting or ambiguous, making it unclear whether ownership is *really* transferred. I haven't looked at the docs so I have no idea.

    But I just thought it would be worthwhile to point out that Mike's description of Silvers is inaccurate regarding the assignment of some rights and not others.

     

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    FUDbuster (profile), Apr 18th, 2011 @ 11:22am

    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.

     

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  40.  
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    Scote, Apr 18th, 2011 @ 11:23am

    Re: FUD

    Each of my posts contains valid arguments. The "attacks" as you call them are all in reference to your Rovian avatar. You are disseminator of FUD, not a "buster" of FUD. I'm not going to let you frame your position by dint of your disingenuously named avatar, I do plan on noting the contrast between your avatar and what you argue. And IMO your arguments are meritircious. But I'll apologize for and take back the "you are a piece of work" part as being over the top for purposes of this discussion

     

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  41.  
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    FUDbuster (profile), Apr 18th, 2011 @ 11:29am

    Re: Re: Re: Re: Re:

    The boilerplate assignment they're using:
    COPYRIGHT ASSIGNMENT

    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.
    What do you think?

     

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  42.  
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    FUDbuster (profile), Apr 18th, 2011 @ 11:34am

    Re: Re: FUD

    Good, focus on my arguments. What exactly do you disagree with?

     

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  43.  
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    bordy (profile), Apr 18th, 2011 @ 11:34am

    Re:

    But what matters is substance, not form. The agreement states that Righthaven receives ownership in "whatever rights necessary to sue" (Aside - nebulous much? What's wrong with explicitly stating the § 106 rights that are being transferred? Methinks something nefarious be afoot)...

    But in practice, Stevens retained whatever rights were purportedly transferred to Righthaven. Righthaven only sued - it wouldn't and contractually couldn't do anything with the copyright it "owned." Substance over form.

    Who's being dishonest here?

     

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  44.  
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    Scote, Apr 18th, 2011 @ 11:35am

    What owner rights does Righthaven have?

    "
    The key here is whether ownership transferred to Righthaven. I think between the SAA and the individual assignments, it's clear that it did."


    I note that you are ignoring my counter analogy. You thought much of your lawnmower analogy yet now you abandon it completely. Do you concede it was an invalid analogy?

    Nor have you answered how in anyway Righthaven can be considered the owner of copyright since Stephens Media actually holds all of the cards, retaining the right to half of all litigation profits, the right to decide who gets sued, the exclusive right to all use of the works, unlimited right to recision with no money owed to Righthaven except for any legal fees expended, and the right to sue upon recision. Righthaven has no rights to the works, other than to sue, and even then only at the pleasure of its de facto (and probably de jure) client Stephens Media.

     

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  45.  
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    Rich, Apr 18th, 2011 @ 11:40am

    Re: Re: Re: Re: Re: Re:

    I think your name and avatar are beyond hubris.

     

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  46.  
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    Mike Masnick (profile), Apr 18th, 2011 @ 11:42am

    Re: Re: Re: Re:

    I don't see the problem with this though. Since ownership is being transferred, Silvers is not applicable.

    If ownership was being transferred, then wouldn't Righthaven have those other rights? And Stephens wouldn't be allowed to block lawsuits or regain control if Righthaven didn't sue.

    It seems pretty clear that this is a sham transfer. I'm surprised that you're still defending it.

     

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  47.  
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    FUDbuster (profile), Apr 18th, 2011 @ 11:43am

    Re: What owner rights does Righthaven have?

    Do any of those provisions negate the transfer of ownership?

     

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  48.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:43am

    Re: Re: Re: Re: Re: Re:

    That doesn't mean much without looking at the other provisions in question.

    If one provision says "we assign everything to you" and another says "except not really," then looking only at the "we assign everything to you" provision isn't helpful.

    That said, that provision is poorly drafted. You don't assign "the work." What does that mean? You assign *rights* in the work.

    It's also grammatically ambiguous. They assign "the work," and then tack on a clause at the end regarding "all rights requisite...", but it's not clear what is happening to those rights. They are probably intending to assign those, but the structure of the sentence doesn't even make that clear.

    Of course, the "all rights requisite" clause is inherently vague.

     

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  49.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:44am

    Re: Re: Re: Re: Re: Re: Re:

    That type of language regarding "all rights necessary" was the very type of language that sunk SCO in its Unix battles.

     

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  50.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:45am

    Re: Re: Re: Re: Re:

    There is nothing "pretty clear" about the deal, IMO.

     

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  51.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:49am

    Re: Re: What owner rights does Righthaven have?

    Potentially.

    What is "ownership" without any rights?

    "Ownership" has to mean something aside from simply being a word on a piece of paper.

    If I say "you own my house, but I retain all exclusive rights to do anything with it and can veto whatever decisions you would think to make about it," do you really own my house?

     

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  52.  
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    FUDbuster (profile), Apr 18th, 2011 @ 11:50am

    Re: Re: Re: Re: Re:

    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.

     

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  53.  
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    Anonymous Coward, Apr 18th, 2011 @ 11:51am

    Re: Re: Re: Re: Re: Re:

    But what does it mean to "own" something if you grant another party all exclusive rights? Especially since Righthave (apparently) doesn't even retain any rights to do anything with the works.

     

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  54.  
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    Scote, Apr 18th, 2011 @ 11:52am

    Re: Re: What owner rights does Righthaven have?

    You are still dodging.

    Do you concede that your lawn mower analogy was an invalid analogy?

    And in what way does Righthaven own anything if it has no rights other than the temporary--unilaterally rescindable by Stephens Media--right to sue?

     

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  55.  
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    FUDbuster (profile), Apr 18th, 2011 @ 11:58am

    Re: Re: Re: Re: Re: Re: Re:

    From the Agreement:
    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.

     

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  56.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:00pm

    Re: Re: Re: Re: Re: Re: Re:

    Righthaven did what any other owner of a copyrighted work is allowed to do--they licensed it someone exclusively.

     

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  57.  
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    hobo, Apr 18th, 2011 @ 12:03pm

    Re: Re:

    I'm not well-versed in Section 106 and it was not a backdoor attempt at an attack on the article. Just asking if it was a typo or not.

    Thanks for the clarification.

     

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  58.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:04pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Ok, so?

    It seems like Righthaven is only getting some sort of titular "ownership" without any substance, and what they're "owning" (i.e., "only enough for us to be recognized as the "owner" for purposes of suing") is questionable.

     

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  59.  
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    DannyB (profile), Apr 18th, 2011 @ 12:06pm

    Re: Re: Righthaven's Copyright Assignents Were Fishy From the Start

    Is there a specific 17 US 204(a) writing transferring copyright rights?

     

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  60.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:06pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I haven't looked (at least not recently) at what rights to sue (if any) copyright owners retain if they have exlusively licensed out all rights without any reservation for themselves.

    Simply saying you can grant exclusive licenses isn't the same as saying you can also then sue for violation of the rights you've exclusively licensed out.

     

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  61.  
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    bordy (profile), Apr 18th, 2011 @ 12:07pm

    Re: Re: Re: Re: Re:

    "you can only assign one of the specific rights designated in Section 106 of the Copyright Act."

    This is just not true, and Silvers v. Sony Pictures recognizes that. You can, for example, assign the right to reproduce and the right to display, but not the right to create derivative works. You can assign a copyright "in whole or in part."


    Are you misunderstanding syntax here? "One" does not reference an allowable amount; it's used to indicate the set of rights available for transfer. Reading the comment re: Sony in this light, it's spot on.

     

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  62.  
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    Scote, Apr 18th, 2011 @ 12:08pm

    Stop dodging. In what way does Righthaven have owner rights?

    Tell us about all the things that Righthaven can do as an owner?

    Can they decide who to sue? Can they sell their rights? Can they license the rights? Can they even prevent the rights from reverting back to Stephens Media?

    The answer is no.

    The same document that putatively transferred the rights, also retained them. There was no actual transfer of rights. Stephen's Media holds all the cards, has all the rights of an owner. Including the right to sue, which it gets merely by invoking its right of revision.

    Again, in what way does Righthaven have anything legitimately resembling the rights of an owner of copyrighted works?

    And if you are sooooo against FUD, why don't you just admit the fact that you were and continue to be wrong on this case and move on to something where you might actually be able to make a valid argument? Or do you just have a tendency to never concede, regardless of the validity of your argument, like, say, an industry shill might do?

     

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  63.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:10pm

    Re: Re: Re: Re: Re: Re:

    I read that to mean, e.g., you cannot assign two of the specific rights designated in Section 106 of the Copyright Act (because "you can only assign one").

    I don't think that's a "misreading."

    I don't understand your statement regarding how "one" is used "to indicate the set of rights available for transfer." Can you please explain?

     

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  64.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:13pm

    Re: Stop dodging. In what way does Righthaven have owner rights?

    Whether he is "wrong" remains to be seen. However, he does not (IMO) appear to be giving enough consideration to the possibility that these documents to not, in combination, effect the required transfer of rights.

     

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  65.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:13pm

    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.

     

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  66.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:17pm

    Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    Fair enough. I think it's pretty clear overall, but I can certainly understand where there is room to argue.

     

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  67.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:17pm

    Re: Re: Re:

    I believe this is what ultimately sunk the SCO lawsuit as well.


    What sunk the SCOX lawsuit was the fact that SCOX was a scam, by people who thought that they could threaten a lawsuit and have people pay them because it was cheaper than going to court.

    Oh, I guess in that respect it is kinda similar.

    The inteneded transfer of the Unix business from Novell to Santa Cruz was apparently drafted by people with little experience in copyrights or businesses that depend on copyrights.


    No. There never was an *intented* transfer. There was an initial *desire* to transfer, but SCO couldn't afford it, so they settled for some of the business assets. The intent of the APA was *never* to transfer copyrights. (*Every* piece of documented evidence says so.)

     

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  68.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:19pm

    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.

     

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  69.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:19pm

    Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    I wonder if the Tenth Circuit's opinion in the SCO case has anything relevant to this issue. It might.

     

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  70.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:20pm

    Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    Um...their "ownership" doesn't consist of any actual copyright rights, though, as best I can tell.

     

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  71.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:23pm

    Re: Re: Re: Re: Re: Re: Re:

    Wait, I think I understand.

    You're saying "one of" is superflous, right? So it should be taken to mean "You can only assign the specific rights designated in Section 106 of the Copyright Act" and not any other rights. Right?

    Unclear writing, at best.

     

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  72.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:32pm

    Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    Oh, but it does. Righthaven owns the Section 106 copyright rights. They've just licensed them to Stephens Media.

     

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  73.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:34pm

    Re: Re: Re: Re: What owner rights does Righthaven have?

    You couldn't sell the house (unencumbered) either.

    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.

    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.

    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.

     

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  74.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:36pm

    Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    Exclusively. So they *don't* actually have those rights. If Righthaven makes a copy of the work, they will be in violation of Stephens Media's rights.

    So all they can transfer to another party is...??? Titular ownership?

     

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  75.  
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    bordy (profile), Apr 18th, 2011 @ 12:48pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Superfluous indeed - you got it. No change in meaning sans "one of".

     

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  76.  
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    Scote, Apr 18th, 2011 @ 12:50pm

    Who gets to sue if Righthaven violates Stephens exclusive rights?

    "Exclusively. So they *don't* actually have those rights. If Righthaven makes a copy of the work, they will be in violation of Stephens Media's rights. "

    :-)

    So if Righthaven really owns the rights who gets to sue if Righthaven violates Stephens' exclusively licensed right to copy the work?

    It seems to me that it might be an amusing or difficult question if Righthaven actually had any legitimate ownership rights, but they don't. Stephens Media has full power over who Righthaven may sue, and Stephens media can unilaterally recind Righthaven's putative ownership at any time, and Stephens Media retains the right to sue for violations of copyright.

    Righthaven has nothing materially resembling copyright ownership. And even if it did, the license to sue is inextricably tied to the exclusive rights to copy the works. Righthaven can't retain merely the right to sue. Righthaven's claims fail either way.

     

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  77.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The right to file suit resides with the exclusive licensee. However, and this is where many unfamiliar with licensing miss the boat, almost invariably the licensor is deemed an indispensable party in the event the licensee files suit against a third party.

     

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  78.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:53pm

    Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    So all they can transfer to another party is...??? Titular ownership?

    Correct. Righthaven can transfer their ownership, encumbered as it is by Stephens Media.

     

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  79.  
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    FUDbuster (profile), Apr 18th, 2011 @ 12:54pm

    Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    I dunno. I never followed that one.

     

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  80.  
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    Anonymous Coward, Apr 18th, 2011 @ 12:54pm

    Re: Re: Re: Re:

    "What sunk the SCOX lawsuit was the fact that SCOX was a scam, by people who thought that they could threaten a lawsuit and have people pay them because it was cheaper than going to court."

    Now that you've got that out of your system, good to see you actually focus on the facts/law of that case later in your post.

    "The intent of the APA was *never* to transfer copyrights. (*Every* piece of documented evidence says so.)"

    This is not true. The amendment explicitly says that the "necessary" copyrights are transferred. That's obviously ambiguous, but is in direct contradiction to your statement. Plus, the actual testimony of most people (on both sides of the deal) was that the intent was to transfer the copyrights.

     

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  81.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    well, I think that does change the most natural meaning (even if not the intended meaning), as the "only one of" language is most naturally taken to mean that only one (i.e., numerically speaking) right may be assigned.

    Usually, "only" is placed next to the word that is being modified as exclusive. Here, that word is "one."

    http://classiclit.about.com/library/bl-etexts/wmbaskervill/bl-wmbaskervill-grammar-syntax-adverb s.htm

    http://iconlogic.blogs.com/weblog/2007/02/english_grammar.html

     

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  82.  
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    FUDbuster (profile), Apr 18th, 2011 @ 1:04pm

    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?

     

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  83.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:05pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I know the licensor or co-inventor is often needed in patent cases, but I didn't think that was true in an exclusive licensee case for copyrights or trademarks.

     

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  84.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:07pm

    Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    Very similar language in copyright assignment re: assigning copyrights "necessary" for a certain purpose (in that case, it was necessay to run the business).

    Trial court (D. Utah) granted summary judgment that copyrights were not assigned. Tenth Circuit reversed for the issue to be decided by a jury. Jury said copyrights weren't transferred.

    I followed that case very carefully for a period of time.

     

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  85.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:09pm

    Re: Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    And all that "ownership" is is some words on a piece of paper, divorced from any actual rights.

    The notion that "ownership" means anything apart from rights in the thing being owned is...questionable at best.

     

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  86.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:10pm

    "You cannot simply assign "the right to sue," because that's a form of "selling lawsuits.""

    I have a lawsuit that I'd like to sell you.

     

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  87.  
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    Josh in CharlotteNC (profile), Apr 18th, 2011 @ 1:13pm

    Re: Re: Re: Re:

    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.

    So for us non-lawyers here:

    Silvers vs. Sony caselaw says effectively that you can't just assign the right to sue.

    What Stephens Media and Righthaven do is:

    1) SM creates the copyrighted content.
    2) RH finds someone infringing on the copyright.
    3) SM transfers the ownership of the content to RH.
    4) RH transfers all rights to the content except for the right to sue back to SM.
    5) RH then sues the guy infringing.

    Do you really expect a judge not to see through this?

     

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  88.  
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    FUDbuster (profile), Apr 18th, 2011 @ 1:14pm

    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?

     

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  89.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:17pm

    Re: Re: Re: Re: Re: Re: What owner rights does Righthaven have?

    "I retain the substantive right of alienation,"

    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.

    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.

    Otherwise, they have no "rights" that the Copyright Act protects. Simply *saying* you own something is not a right protected by the Copyright Act.

     

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    Anonymous Coward, Apr 18th, 2011 @ 1:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    In fact, I know that an exclusive (and even non-exclusive according to some decisions) licensee can sue under Section 43 of the Lanham Act.

     

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  91.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:23pm

    Re: Re: Re: Re: Re: Re: Re: Stop dodging. In what way does Righthaven have owner rights?

    Novell, the transferor, challenged the transfer after the transferee's downstream assignee (The SCO Group) brought suit against IBM.

    It was a separate suit between Novell and SCO, though, that involved several causes of action.

    You can read a biased chronology of events (with actually very helpful links to actual case documents) at www.groklaw.com

     

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    FUDbuster (profile), Apr 18th, 2011 @ 1:27pm

    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.

     

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    ike, Apr 18th, 2011 @ 1:37pm

    This doesn't change their past need to settle



    I feel bad for all the sites that already settled and paid up, because it appears that they probably didn't need to do so.


    That they were not guilty of infringing Righthaven's Copyright was already known to them. I feel bad for them too, but whether they were in the right or not wasn't the primary factor in their decision.

     

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  94.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:37pm

    Re: Re: Re: Re: Re: Re: Who has all the rights of an owner?

    ""All copyrights" is all copyrights. "

    Yup, and "all copyrights requisite to..." is very different.

     

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  95.  
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    Anonymous Coward, Apr 18th, 2011 @ 1:45pm

    Re: 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."

    Not if title doesn't give you any rights it's not.

    As for limited licenses, I'm not saying that any sort of license is or is not allowed in general. I'm saying that, in the context of an overall deal, it's hard to see what rights Righthaven has if the license back to Stephens incorporates all substantive rights of a copyright holder for all time.

    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!

     

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    Anonymous Coward, Apr 18th, 2011 @ 1:46pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: What owner rights does Righthaven have?

    This is getting too far to the right in threaded view, so I'm going I'm not going to respond to this threadlet anymore.

     

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    FUDbuster (profile), Apr 18th, 2011 @ 1:53pm

    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!

    I like the argument. Let me think on it.

     

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  98.  
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    Bruce Ediger (profile), Apr 18th, 2011 @ 2:02pm

    Re: Re: Re: Re: Re:

    How do you account for the outside counsel to Novell, Tor Braham, keeping track of essentially everything that he did, and having it all available for his declaration in the SCOG v Novell Slander of Title case?

    http://www.groklaw.net/articlebasic.php?story=20070421204625419

    In his declaration, Braham reveals that he was a specialist in "complex corporate transactions", as a partner in Wilson Sonsini.

    It seems that your entire thesis is wrong: not only did Novell engage specialists for counsel, that very specialist kept elaborate records because he understood the gravity and potential historicity of the transaction.

    Keep on Bustin' That FUD!

     

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  99.  
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    Anonymous Coward, Apr 18th, 2011 @ 2:10pm

    Re: Re: Re: Re: Re: Re:

    First, I'm not sure what keeping records has to do with anything.

    Second, being a specialist in corporate transactions does not make you a specialist in intellectual property law or anything related to copyright.

    Third, I was referring to Santa Cruz's counsel. Obviously, Novell's counsel did a much better job on behalf of their client than Santa Cruz's counsel (better, apparently, than many key Novell managers realized at the time).

     

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    Karl (profile), Apr 18th, 2011 @ 2:37pm

    Re:

    I have a lawsuit that I'd like to sell you.

    "And if you act now, I'll also throw in the Brooklyn Bridge."

     

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    Karl (profile), Apr 18th, 2011 @ 2:38pm

    Re: This doesn't change their past need to settle

    whether they were in the right or not wasn't the primary factor in their decision.

    That's kind of the problem, isn't it?

     

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    Karl (profile), Apr 18th, 2011 @ 2:39pm

    Helping artists?

    I'd just like to point something out:

    In all these comments, with all this legal talk, nobody here has even considered the authors who actually wrote the articles.

     

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    FUDbuster (profile), Apr 18th, 2011 @ 2:41pm

    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.

     

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    Jimmy The Geek (profile), Apr 18th, 2011 @ 2:47pm

    If Wronghaven can't publish the work themselves

    Then they cannot show that they have standing in a copyright lawsuit. No more than if you tried to sue to help Sony out, for example.

     

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    Anonymous Coward, Apr 18th, 2011 @ 3:03pm

    Re:

    "the right"

    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?

    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).

     

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  106.  
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    Anonymous Coward, Apr 18th, 2011 @ 3:04pm

    Re: If Wronghaven can't publish the work themselves

    I don't think it's that simple, but their lack of any substantive 106 rights might be damning to their cases.

     

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    Bruce Ediger (profile), Apr 18th, 2011 @ 3:35pm

    Re: Re: Re: Re: Re: Re: Re:

    Tor Braham specifically kept the records because he was aware of the gravity of the sale, the historic nature of sellin Unix itself. He knew that what he was doing was important, probably because of his background in IP law.

    Second, he was a *partner* at Wilson Sonsini. I understand that law firms handle a lot of different kinds of legal work, but still, Wilson Sonsini partner pretty much qualifies as an IP specialist, don't you think? Especially in the mid 90s, before all the IP maximalism got ramped up?

    Third, quit while you're ahead. Yes, a Good Lawyer just keeps going in hopes that something will stick, but it does your personal case no good in this particular venue. Refusing to give up makes you look illogical.

     

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    Anonymous Coward, Apr 18th, 2011 @ 3:55pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I don't understand how keeping records and/or knowing of the "gravity" of the sale indicates that the attorney had any background in IP law. That's quite a stretch.

    No, simply being a partner (gasp!) at Wilson Sonsini doesn't qualify you as an IP specialist. Wilson Sonsini is not an IP boutique. Take a look at their practice areas: http://www.wsgr.com/wsgr/Display.aspx?SectionName=practice

    Also, as I pointed out, I WASN'T TALKING ABOUT TOR BRAHAM! I was talking about Santa Cruz's lawyers.

    Simply saying "you should give up" is not a very good argument.

     

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    FUDbuster (profile), Apr 18th, 2011 @ 4:48pm

    Re: Re:

    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.

     

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    thepi (profile), Apr 18th, 2011 @ 5:00pm

    Perhaps the people who already settled should sue Rightshaven for fraud. They did claim they had the copyright did they not?

     

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  111.  
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    Anonymous Coward, Apr 18th, 2011 @ 5:07pm

    Re: Re: Re:

    You seem to think you can "own" an exclusive right to do X, without without actually having any legal right to do X or to exclude others from doing X. I don't buy that premise.

    501(b) says the legal or beneificial owner of a 106 right can sue for an infringement of that right to institute an action for any infringement of that right "committed while he or she is the owner of it."

    Silvers says you can't transfer the right to sue alone.
    Are you saying that the right to sue can be transferred *if* it's transferred along with some other 106 rights?

     

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  112.  
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    Mike Masnick (profile), Apr 18th, 2011 @ 5:31pm

    Re: Re: Re:

    This is just not true, and Silvers v. Sony Pictures recognizes that. You can, for example, assign the right to reproduce and the right to display, but not the right to create derivative works. You can assign a copyright "in whole or in part."

    The right to reproduce and the right to display are rights under Section 106. The right to sue is not.

    So, you're agreeing with me while claiming to disagree.

     

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    FUDbuster (profile), Apr 18th, 2011 @ 6:27pm

    Re:

    Oops. I hit "reload."

     

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    Bruce Ediger (profile), Apr 18th, 2011 @ 8:03pm

    Re: Re: Re: Re: Re:

    You know, you're correct, the actual testimony of the folks on both sides of the deal was that the intent was to transfer the copyrights.

    But most of those same people stood to make some serious money if SCOG was granted the copyrights. So, maybe we have to weight that testimony, and find it wanting.

    Unfortunately, all of the documents showed that the intent was to NOT transfer the copyrights.

    Given what we know about eye witness testimony, especially that of people who stand to make money, it's best we assume that the intent was as documented, not as remembered.

     

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    Karl (profile), Apr 18th, 2011 @ 9:29pm

    Re:

    I'll see if I can find some relevant Ninth Circuit caselaw.

    Why don't you start with Silvers v. Sony? Mike linked it right in the article. He just linked to the summary, so here's the full case:
    http://caselaw.findlaw.com/us-9th-circuit/1195551.html

    I'll quote some salient points for you:
    Exclusive rights in a copyright may be transferred and owned separately, but Sec. 201(d) creates no exclusive rights other than those listed in Sec. 106, nor does it create an exception to Sec. 501(b).

    In addition, when a copyright interest is transferred it must be recorded to protect the copyright holder's right to bring an infringement suit. This requirement ensures that prospective buyers or transferees have notice of the copyright interests owned by others. By contrast, the recording statute does not contemplate a transfer of anything other than an ownership interest in the copyright, along with the concomitant exclusive rights.

    Returning to the operative section, under Sec. 501(b) the plaintiff must have a legal or beneficial interest in at least one of the exclusive rights described in Sec. 106. Additionally, in order for a plaintiff to be "entitled to institute an action" for infringement, the infringement must be "committed while he or she is the owner of" the particular exclusive right allegedly infringed.

    Under the "Strategic Alliance Agreement:"

    - Righthaven was not assigned any of the exclusive rights listed in Sec. 106. "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."

    - These assignments were predicated on Righthaven pursuing an infringement action. "Righthaven shall have sixty (60) days after each respective assignment to Notify Stephens Media of whether Righthaven will pursue an Infringement action. If Righthaven chooses to not pursue an Infringement Action, then Righthaven shall reassign the Assigned Copyright to Stephens Media."

    - Stephens Media only assigns the copyright to Righthaven after it believes the material is being infringed upon, and does not assign any copyrights of any material that is not infringed upon. "Stephens Media shall assing to Righthaven: (a) any copyrights owned by Stephens Media that Stephens Media desires to be the subject of Searching, (b) any copyrights owned by Stephens Media that Stephens Media considers a material risk of infringement, and (c) within thirty (30) days of having respective Infringment Notice, each and every Infringed Copyright that exist during the Term."

    Furthermore, the actual contract assigning the rights grants to Righthaven "the right to pursue past, present, and future infringements of the copyright in and to the Work." This is plainly unlawful under 17 USC 501(b).

    The judge made the right call here.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 5:52am

    Re: Re: Re: Re:

    You seem to think you can "own" an exclusive right to do X, without without actually having any legal right to do X or to exclude others from doing X. I don't buy that premise.

    If I own an exclusive right under 106, and I then grant you an exclusive license to that right, both you and I have an ownership interest in the right sufficient to give standing. That's my understanding of how it works.

    501(b) says the legal or beneificial owner of a 106 right can sue for an infringement of that right to institute an action for any infringement of that right "committed while he or she is the owner of it."

    Correct. And that right to sue is transferrable. Stephens Media transferred their accrued right to sue to Righthaven.

    Silvers says you can't transfer the right to sue alone. Are you saying that the right to sue can be transferred *if* it's transferred along with some other 106 rights?"

    It has to be transferred with the very 106 right that has been violated. For example, if only the reproduction right was violated and you were transferred only the performance right, then you'd have no standing to sue since you don't have an ownership interest in the right that was violated.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 6:00am

    Re: Re:

    If Righthaven was not assigned any of the rights under 106, i.e., transferred legal ownership of those rights, then how is it that they could grant an exclusive license of those rights to Stephens Media? You cannot grant to another more than you yourself have.

    Contractually agreeing that the assignments are predicated on the pursuit of infringement doesn't make the transfer any less valid.

    The "past, present, and future" thing is interesting. I found some authority last night that stated that once the owner of the right grants an exclusive license, only that exclusive licensee can bring actions for future infringements. This means that Righthaven would not be able to sue for infringements of the works they own that happen down the road. Only Stephens Media, the exclusive licensee, would have standing.

     

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  118.  
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    Anonymous Coward, Apr 19th, 2011 @ 7:01am

    Re: Re: Re:

    In your view has the original assignee of the work granted an exlusive license to its assignor as to all or substantially all of the rights enumerated in 17 USC 106 (reproduce, prepare derivative works, distribute, and the two variants of public performances)?

    The assignment by itself is not problematic. It is the grant provisions of the exclusive license that is the problem. Note that the overarching agreement is the actual license agreement, which agreement then muddles the issue by using the terms "retains" and "hereby grants".

    It is a longstanding rule of law that the substance of an agreement is controlling, and not the titles of the respective documents. In this situation when the dust all settles the assignor (despite the use of poor language) appears to hold all all of the substantial rights enumerated in 17 USC 106, and the assignee holds "naked" title, upon which it then asserts that only it possesses the rights neecessary to secure standing to sue before the federal courts.

    Based in part upon the above characterization of the transaction, I have serious questions that the transaction is legally sufficient to confer the assignee with standing. I can conceive of some ways that the parties may have been able to achive their end objective, but this is one that I would almost certainly have avoided/rejected.

     

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    Karl (profile), Apr 19th, 2011 @ 7:15am

    Re: Re: Re:

    If Righthaven was not assigned any of the rights under 106, i.e., transferred legal ownership of those rights, then how is it that they could grant an exclusive license of those rights to Stephens Media?

    They're not really doing either one.

    The only legal transfer of rights is in these documents. If they do not transfer one of the rights under 106, those rights were never transferred in the first place. The documents say "they are the owners," but you can't just claim that - you have to be assigned one of the rights under 106, or you're not the copyright owner in any way.

    Righthaven is, explicitly, granted none of the rights under 106 in this contract. Therefore, they have no basis for suing.

    Contractually agreeing that the assignments are predicated on the pursuit of infringement doesn't make the transfer any less valid.

    Yes, according to Silvers, it makes the transfer completely invalid. That would be "selling lawsuits," and it's not allowed.

    The "past, present, and future" thing is interesting. I found some authority last night that stated that once the owner of the right grants an exclusive license, only that exclusive licensee can bring actions for future infringements.

    I don't know if this is true. For example, recording artists usually assign the sound recording rights to their labels, so the labels "own" those rights. Does this mean that the artists can no longer sue for infringement themselves? I know they have, but I don't know if it's because of the sound recording or the composition (composition rights are usually not assigned, they're licensed).

    Regardless - no matter what, you cannot sue for any infringements that occurred before you acquired the rights. That's specifically verboten under 501(b).

     

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    FUDbuster (profile), Apr 19th, 2011 @ 7:35am

    Re: Re: Re: Re:

    In your view has the original assignee of the work granted an exlusive license to its assignor as to all or substantially all of the rights enumerated in 17 USC 106 (reproduce, prepare derivative works, distribute, and the two variants of public performances)?

    Yes. My read is that ownership of all the 106 rights, plus the accrued right to sue, transferred to Righthaven. Righthaven then (in the same document) granted Stephens Media an exclusive license for the 106 rights. What's important for Righthaven's standing to sue is: (1) they have an ownership interest in the copyrighted work, and (2) they own the accrued right to sue. I believe what they have is sufficient for standing.

    The assignment by itself is not problematic. It is the grant provisions of the exclusive license that is the problem. Note that the overarching agreement is the actual license agreement, which agreement then muddles the issue by using the terms "retains" and "hereby grants".

    Agreed. Are they "retained" or are they "granted"? It can't be both. I think it's just a poor choice of wording, and the true meaning is that they were granted. The net effect is that the 106 rights were "retained," but technically ownership changed hands, and that's what's important for Righthaven.

    It is a longstanding rule of law that the substance of an agreement is controlling, and not the titles of the respective documents. In this situation when the dust all settles the assignor (despite the use of poor language) appears to hold all all of the substantial rights enumerated in 17 USC 106, and the assignee holds "naked" title, upon which it then asserts that only it possesses the rights neecessary to secure standing to sue before the federal courts.

    Right. And I believe that they have standing to sue, for the accrued rights anyway. As I mentioned above, I believe that only Stephens Media would only have standing for prospective infringements as the exclusive licensee. The case I read that made that point was out of a different circuit, and I'm not sure what the rule is in the Ninth.

    This is fascinating stuff, and I wish I had more time today to research it more thoroughly. Unfortunately, duty calls...

    Based in part upon the above characterization of the transaction, I have serious questions that the transaction is legally sufficient to confer the assignee with standing. I can conceive of some ways that the parties may have been able to achive their end objective, but this is one that I would almost certainly have avoided/rejected.

    You would think that their agreement would be a bit clearer, especially considering the shit-storm they knew they were going to raise.

    Personally, I think Righthaven's misrepresentations to the court, as pointed out in the EFF link I provided, are Righthaven's problem. I think they will get deservedly spanked for being less than honest with the court.

    I suspect a new Agreement between Righthaven and Stephens Media is in the works that addresses these problems.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 7:42am

    Re: Re: Re: Re:

    It will certainly come down to whether the court thinks that Righthaven gained an ownership interest in the 106 rights. I believe that they did, but reasonable minds may differ of course.

    As far as artists being able to sue... My understanding is that if they transferred complete ownership of the rights to their label, then they have no standing to sue since they have no rights. If there is a case where an artist did sue, then that artist must have retained some ownership interest in the work, e.g., perhaps they are co-owners with the label.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 7:53am

    Re: Re: Re: Re: Re:

    Are you saying that the right to sue can be transferred *if* it's transferred along with some other 106 rights?"

    To better answer your question...

    The right to sue must be explicitly granted. So if you want to give someone the right to sue over a past infringement, you have to: (1) grant them the 106 right that was infringed (e.g., reproduction) by either transferring complete ownership of, or an exclusive license to, that right (in other words, an ownership interest), and (2) explicitly grant them the accrued right to sue.

    So, yes, the right to sue can be transferred, so long as you are also transferring an ownership interest.

     

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    Anonymous Coward, Apr 19th, 2011 @ 9:18am

    Re: Re: Re: Re: Re: Re:

    Well, my opinion remains that The SCO Group ultimately paid a heavy price for the poor counsel Santa Cruz got regarding the language of the deal.

    Obviously, ownership of the copyrights is/was just one piece of SCO's suit against IBM, and there's no telling what the end result of that litigation would have been had ownership been resolved in SCO's favor, but not owning the copyrights is a pretty heavy blow to them (i.e., they can't even sell them off in bankruptcy).

     

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    Anonymous Coward, Apr 19th, 2011 @ 9:21am

    Re: Re: Re: Re:

    "The right to reproduce and the right to display are rights under Section 106. The right to sue is not."

    Yup.

    "So, you're agreeing with me while claiming to disagree."

    Nope.

    You can see the comments above for an explanation, if you're interested, but your use of "only one" makes it seem that only a single 106 right can be transferred, when that is not the case.

     

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    Anonymous Coward, Apr 19th, 2011 @ 9:24am

    Re: Re: Re: Re: Re: Re:

    That is my understanding as well. However, I'm still not convinced that a transfer of nominal "ownership" with no actual rights that go along with that nominal ownership (other than the right to sue, of course), is sufficient.

    Of course, all of this could be resolved by simply adding Stephens Media as an additional plaintiff.

     

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    Anonymous Coward, Apr 19th, 2011 @ 9:26am

    Re: Re: Re: Re:

    precisely

     

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    FUDbuster (profile), Apr 19th, 2011 @ 9:34am

    Re: Re: Re: Re: Re: Re: Re:

    Stephens Media could have just hired a lawyer like a normal person. :)

     

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    Anonymous Coward, Apr 19th, 2011 @ 10:35am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I assumed they did, but s/he just didn't do a good job.

    At any rate, either a new agreement or adding a plaintiff can repair the damage for new cases and probably existing cases.

    Of course, Stephens Media might not like the way this whole scheme has played out in the media and might reconsider any agreement going forward.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 5:31pm

    From Wired: http://www.wired.com/threatlevel/2011/04/eff-righthaven-sham/
    Steve Gibson, Righthaven’s CEO, said in a telephone interview Tuesday that it owns the copyrights to the works it sues on behalf, and has licensed back the content to Stephen Media, which did not respond for comment.

    “We gave them exclusive licenses,” he said of Stephens Media of Las Vegas. “But that does not give them title. We own the underlying copyright.”
    I have to agree with Gibson on this point. I wonder how he'll explain away the misrepresentations to the court, though. For me, that's the real story.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 7:07pm

    This is interesting. We've been talking about the copyright assignments that Righthaven uses, and I said that the assignment is "clear" and that all of the rights are transferred, including the accrued right to sue.

    From today's article in the Las Vegas Sun:
    "The (copyright) assignment in question clearly assigns both the exclusive copyright ownership, together with accrued causes of action, i.e., infringements past, present and future," Hunt wrote in a September ruling denying a Righthaven defendant’s motion to dismiss.
    From: http://www.lasvegassun.com/blogs/business-notebook/2011/apr/19/righthaven-about-get-some-payback/

    I'm not the only one who thinks the assignments are "clear." Judge Hunt also agrees. And his opinion matters more than any of ours.

     

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    Karl (profile), Apr 19th, 2011 @ 7:19pm

    Re: Re: Re: Re: Re:

    It will certainly come down to whether the court thinks that Righthaven gained an ownership interest in the 106 rights. I believe that they did, but reasonable minds may differ of course.

    I really don't see how you can believe this, honestly. Read the agreement: at no point did Righthaven have any of the rights granted in 106. The contract expressly forbade them from exercising any of them at any time.

    Combine this with the obvious - that they were only granted the rights so that they could bring lawsuits - and you have a perfect case where Silvers should be controlling.

    Seriously, did you read that case? It really makes it clear that what Righthaven/Stephens is doing is simply not allowed.

    As far as artists being able to sue... My understanding is that if they transferred complete ownership of the rights to their label, then they have no standing to sue since they have no rights. If there is a case where an artist did sue, then that artist must have retained some ownership interest in the work, e.g., perhaps they are co-owners with the label.

    To my knowledge, recording artists are never co-owners with the label. Those rare few that don't assign the copyrights hold onto them in total, and simply license the rights to the label.

    But, as I said, there are two main areas where artists assign rights: sound recordings and the underlying composition. The composition is licensed to publishing companies, who usually do not own the copyrights (unlike the labels). So, there's that.

    It seems sort of odd that if Whitney Houston saw a YouTube video of her song, that she would not have any right to file a takedown notice. But, hey, c'est la vie.

     

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    Karl (profile), Apr 19th, 2011 @ 7:27pm

    Re: Re: Re: Re: Re: Re:

    The right to sue must be explicitly granted.

    The right to sue cannot be granted. Only the rights in 106 can be granted.

    So if you want to give someone the right to sue over a past infringement,

    ...you expressly aren't allowed to under copyright law:
    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.

     

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    FUDbuster (profile), Apr 19th, 2011 @ 7:50pm

    Re: Re: Re: Re: Re: Re:

    I really don't see how you can believe this, honestly. Read the agreement: at no point did Righthaven have any of the rights granted in 106. The contract expressly forbade them from exercising any of them at any time.>

    Not only do I believe, the judge in the Democratic Underground case even said it's "clear." You can own something yet not have the right to use it for the simple reason that you can transfer your right to another without relinquishing your ownership. When a copyright owner grants an exclusive license to somebody else, that owner still owns the copyright. The person they granted the license to is merely a licensee, and licensees do not hold title to the thing that they license.

    Combine this with the obvious - that they were only granted the rights so that they could bring lawsuits - and you have a perfect case where Silvers should be controlling.

    I agree that Silvers is controlling, but I think it only helps Righthaven's position. Righthaven was granted all of the copyright rights, including the right to sue, and under Silvers, that's perfectly fine.

    To my knowledge, recording artists are never co-owners with the label. Those rare few that don't assign the copyrights hold onto them in total, and simply license the rights to the label.

    It's funny you say that because I chose that co-owner example after reading a case last night where that was the case. Davis v. Blige (as in Mary J.).

     

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    FUDbuster (profile), Apr 19th, 2011 @ 8:33pm

    Re: Re: Re: Re: Re: Re: Re:

    The right to sue cannot be granted. Only the rights in 106 can be granted.

    That's incorrect. As Nimmer explains in Nimmer on Copyright @ 12.02:
    Turning to an explicit grant of an accrued cause of action, the first thing to mention is that the Anti-Assignment Act disallows transfer of an accrued cause of action against the United States. As to all other potential defendants, the assignee of an accrued infringement cause of action that is included with the balance of copyright ownership has standing to sue without the need to join his assignor. The more difficult question remains whether the assignee of solely an accrued claim and no other copyright interest has standing to sue. In Silvers v. Sony Pictures Entertainment, Inc., a panel of the Ninth Circuit allowed the assignee to bring suit. The full court disagreed. It held that, inasmuch as the right to sue for an accrued claim for infringement is not enumerated as one of the copyright owner's exclusive rights, such an assignee fails to qualify as the "legal or beneficial owner of an exclusive right under a copyright ... ." The Ninth Circuit claimed to be aligning itself with the Second Circuit's decision in Eden Toys, given that "the creation of a circuit split would be particularly troublesome in the realm of copyright" in light of "Congress' paramount goal in revising the 1976 Act of enhancing predictability and certainty of copyright ownership."
    In other words, the person you assign the right to sue to can only use it if you also give them title to the copyright. Righthaven is assigned the right to sue and the title, so they're fine.

    ...you expressly aren't allowed to under copyright law:

    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.


    But what that doesn't mention is that the owner who gains that right can then later transfer it to another.

     

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    Karl (profile), Apr 20th, 2011 @ 5:16am

    Re: Re: Re: Re: Re: Re: Re:

    When a copyright owner grants an exclusive license to somebody else, that owner still owns the copyright. The person they granted the license to is merely a licensee, and licensees do not hold title to the thing that they license.

    That's not exactly true. According to the U.S. Copyright Office (PDF):
    A “transfer of copyright ownership” is an assignment, mortgage, grant of an exclusive license, transfer by will or intestate succession, or any other change in the ownership of any or all the exclusive rights in a copyright, whether or not it is limited in time or place of effect. It does not include a nonexclusive license.

    Since an exclusive license is also a "transfer of ownership," it seems to me that Righthaven does not "own" any of the rights in question. By licensing them, exclusively, to Stephens, they lost that "ownership."

    On a side note, this is exactly why thinking of a copyright in therms of physical property is extremely problematic.

    Not only do I believe, the judge in the Democratic Underground case even said it's "clear."

    I'm pretty sure the judge would not use those words today.

    Righthaven was granted all of the copyright rights, including the right to sue, and under Silvers, that's perfectly fine.

    The "right to sue" is not a right that is granted in copyright law. The only rights are those in 106. You can sue if someone infringes upon those rights, but the ability to sue is not, in and of itself, a transferable right. That's exactly what Silvers says, it's what an earlier case (Eden v. Florelee) said, it's what Judge Hunt said, and it's what Nimmer said in the quote you provided.

     

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    Karl (profile), Apr 20th, 2011 @ 5:35am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Perhaps this will make it clear:

    When you "own" a copyright, what you actually own is not something like a title or a deed. What you "own" is an exclusive right (one of those enumerated in 17 USC 106).

    Once you lose that right, you no longer "own" anything. An exclusive license is, by definition, a grant of that right to a third party; you yourself are excluded from exercising that right. You no longer "own" that right, so you don't own the copyright.

     

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    FUDbuster (profile), Apr 20th, 2011 @ 5:46am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Since an exclusive license is also a "transfer of ownership," it seems to me that Righthaven does not "own" any of the rights in question. By licensing them, exclusively, to Stephens, they lost that "ownership."

    Not exactly. After Righthaven, as owner, grants Stephens Media an exclusive license, Stephens Media then has an ownership interest and Righthaven still owns the title. The exclusive licensee (Stephens Media) is transferred an ownership interest, but it doesn't divest the transferor (Righthaven) of its title. That's what's important for Righthaven. Righthaven is still the owner.

    On a side note, this is exactly why thinking of a copyright in therms of physical property is extremely problematic.

    On the contrary, it's because this works just like physical property that makes the analogy so apropos.

    I'm pretty sure the judge would not use those words today.

    He used that word to describe the individual assignments. It remains to be seen what he rules as far as the SAA.

    The "right to sue" is not a right that is granted in copyright law. The only rights are those in 106. You can sue if someone infringes upon those rights, but the ability to sue is not, in and of itself, a transferable right. That's exactly what Silvers says, it's what an earlier case (Eden v. Florelee) said, it's what Judge Hunt said, and it's what Nimmer said in the quote you provided.

    That's right. And the part you're missing is that MORE than just the bare right to sue was transferred to Righthaven. Ownership transferred. Yes, then Righthaven transferred an exclusive license (i.e., an ownership interest) to Stephens Media. But Righthaven still is the title owner, and according to Section 501, the legal owner has standing to sue.

     

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    FUDbuster (profile), Apr 20th, 2011 @ 5:52am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Perhaps this will make it clear:

    When you "own" a copyright, what you actually own is not something like a title or a deed. What you "own" is an exclusive right (one of those enumerated in 17 USC 106).

    Once you lose that right, you no longer "own" anything. An exclusive license is, by definition, a grant of that right to a third party; you yourself are excluded from exercising that right. You no longer "own" that right, so you don't own the copyright.


    That's just not how it works. If you own a copyright, you can grant someone an exclusive license to it yet still hold title yourself, i.e., remain the owner. Caselaw, Nimmer, etc. makes this quite clear.

     

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    Karl (profile), Apr 20th, 2011 @ 9:26pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    After Righthaven, as owner, grants Stephens Media an exclusive license, Stephens Media then has an ownership interest and Righthaven still owns the title.

    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."

    And the part you're missing is that MORE than just the bare right to sue was transferred to Righthaven.

    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.

     

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    Karl (profile), Apr 20th, 2011 @ 9:42pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If you own a copyright, you can grant someone an exclusive license to it yet still hold title yourself, i.e., remain the owner.

    None of the caselaw, nor Nimmer, claim this, because it's not true.

    Now, there are several rights granted under 106, and they can all be licensed individually. Also, one work may have different aspects that each have their own separate rights (e.g. a song, which has at least two: compositions and sound recordings). Each of those many rights may be granted individually, and they may be granted conditionally (e.g. with regional restraints).

    But when you grant an exclusive right to someone else, you lose ownership rights in it, under whatever conditions you granted it. For example, if you grant someone an exclusive license to distribution in Spain, you lose all ownership rights to distribution in Spain. The licensee gains all of those rights, and can license or assign them to third parties, as they will. The licensor cannot, or they are guilty of infringement.

    Stephens holds an exclusive, worldwide, right to every single one of the rights enumerated in 106. At no point in time did Righthaven ever hold the rights to any of them. The contract which supposedly transferred those rights, expressly prevents Righthaven from owning any of those rights.

    The only "right" that was transferred was the right to sue - which is not something you can transfer legally by itself.

    The whole thing is indeed a sham, and the judge was absolutely right in ruling the way he did.

     

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    Mike Masnick (profile), Apr 20th, 2011 @ 10:01pm

    Re: Re: Re: Re: Re:

    You can see the comments above for an explanation, if you're interested, but your use of "only one" makes it seem that only a single 106 right can be transferred, when that is not the case

    Ah, perhaps my language was sloppy, but I didn't mean "only one" as in "a limit of one." I mean "only one" as in "only the specific rights granted under section 106" may be transferred. As in, you read "only one" as a clause by itself. I meant the full phrase to be the clause.

     

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    Mike Masnick (profile), Apr 20th, 2011 @ 10:06pm

    Re:

    I'm not the only one who thinks the assignments are "clear." Judge Hunt also agrees. And his opinion matters more than any of ours.

    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.

     

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    Karl (profile), Apr 20th, 2011 @ 10:12pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Here, I'll make it easy for you.

    Suppose some other newspaper (like the Sun) came to Righthaven, looking to secure a license to print one of the articles supposedly in Righthaven's possession. Would Righthaven have the legal right to grant a license to the Sun?

    No, they would not. They do not hold the right to license any content for any purpose whatsoever. Only Stephens Media does. If Righthaven did so, they would be guilty of copyright infringement.

    As it happens, they would also be guilty of breach of contract, since the contract specifically states that Righthaven does not have the right to exploit any of the rights granted by copyright, at any time, under any circumstances; and if they do, ownership "reverts" to Stephens automatically.

    So, let's say the Sun prints one of the articles anyway. Under what grounds does Righthaven have the right to sue? Which one of the exclusive rights in 17 USC 106 does Righthaven control, which Sun is infringing upon?

    Answer: none.

     

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    Mike Masnick (profile), Apr 20th, 2011 @ 10:26pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Yeah, to make this simple and prove that FUDbuster is (as per usual) the FUD spreader, there's a simple question and a simple answer:

    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.

     

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    FUDbuster (profile), Apr 21st, 2011 @ 5:45am

    Re: Re:

    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.

     

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    FUDbuster (profile), Apr 21st, 2011 @ 5:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

     

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    FUDbuster (profile), Apr 21st, 2011 @ 5:52am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    None of the caselaw, nor Nimmer, claim this, because it's not true.

    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.

     

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    FUDbuster (profile), Apr 21st, 2011 @ 5:56am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

    I'm happy to give you more lessons anytime.

     

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    FUDbuster (profile), Apr 21st, 2011 @ 11:25am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.
    Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001).

     

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    Karl (profile), Apr 21st, 2011 @ 8:48pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Here's my Nimmer and caselaw, Karl. Where's yours?

    You know, almost everything you quoted seems to agree with what I said. I'm not sure what you're arguing here.

    The only exception is Morris, but they seem to be suggesting that Stephens is actually the owner here. After all, the "assignment" of rights is the same as granting an exclusive license, except that instead of doing it piecemeal and with time/place restrictions, you exclusively license all of your rights, perpetually and worldwide.

    "Assignment" is an accurate description for the "exclusive license" that Stephens supposedly has with Righthaven. All the contract says is, "we're assigning the rights to you, and you're assigning them right back to us."

    The fact is, no matter how much the contract claimed Stephens "assigned" the rights to Righthaven, they didn't. You actually have to assign the rights in 106, which they did not do - Righthaven does not, did not, and (according to the contract) will never hold either the rights to, nor any interest in, any of the rights from 106.

    This situation is almost completely identical to the Silvers case. If what you believe is true, then Silvers would be completely meaningless, and it would be trivial to circumvent that ruling entirely.

    The judge agreed, and he was right in doing so.

     

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    Karl (profile), Apr 21st, 2011 @ 9:18pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    By the way, here's the law I'm quoting:

    "Copyright owner", with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

    A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of 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.

    17 USC 101, "Definitions."

    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.

     

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    FUDbuster (profile), Apr 22nd, 2011 @ 4:59am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

     

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    Karl (profile), Apr 22nd, 2011 @ 7:41am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The problem is that you don't grasp any of the fundamentals.

    Look, I understand what a "title" is. It is the legal control of a bundle of rights in a piece of property. The problem is that you think you can own a title to something when you control absolutely no rights in the property whatsoever.

    I also understand that there are "legal titles" and "equitable titles." But this distinction doesn't apply in this case. If you really want to think of it in those terms, "ownership" of a copyright is defined as the "equitable title" in the rights granted in 17 USC 106. This is why an "exclusive license" is as much of a transfer of ownership as full-on assignment.

    Once you acquire the "equitable title" to all those rights, you are the sole owner. That is, in fact, what "assignment" means.

     

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    FUDbuster (profile), Apr 22nd, 2011 @ 7:59am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

     

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    FUDbuster (profile), Apr 22nd, 2011 @ 5:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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).
    Gardner v. Nike, Inc., 279 F.3d 774, 780 (9th Cir. 2002).

     

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    Karl (profile), Apr 22nd, 2011 @ 11:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

    Except that everything you've quoted agrees with what I've been saying.

    Are you forgetting this?

    Under current copyright law, exclusive licenses are recognized as a type of an ownership interest, conveying a particular exclusive right of copyright. Exclusive licensees may sue without joining the copyright owners. 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.


    Or this?

    The more difficult question remains whether the assignee of solely an accrued claim and no other copyright interest has standing to sue. In Silvers v. Sony Pictures Entertainment, Inc., a panel of the Ninth Circuit allowed the assignee to bring suit. The full court disagreed. It held that, inasmuch as the right to sue for an accrued claim for infringement is not enumerated as one of the copyright owner's exclusive rights, such an assignee fails to qualify as the "legal or beneficial owner of an exclusive right under a copyright ... ."


    The rest deals solely with the difference between exclusive and non-exclusive licenses, which I've also been clear to distinguish; or with the fact that a copyright owner (i.e. one who still holds some rights that are granted in 106 that he held originally) and an exclusive licensee (who holds only some of the rights granted in 106 that were granted by the original copyright owner) can sue - provided the defendant infringes on one of the rights held by the exclusive licensee.

    I've already written my interpretation of Morris - which, if your interpretation of "exclusive license" as non-ownership is correct, would make Stephens the copyright owner and Righthaven the licensee, since "assignment" of a copyright is simply shorthand for "an exclusive license to all the rights, perpetually and worldwide."

    There's also this:

    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.


    If that's what defines ownership, then Stephens is not an "exclusive licensee" but the title owner, since the contract specifically says that Stephens, and not Righthaven, have an unrestricted right to freely transfer the license. And, under the contract, they specifically are not entitled "to 'the protection and remedies' accorded the copyright owner." They have the right to transfer the license, but they do not have the right to sue.

    Not a single case you have mentioned deals with the question of whether a person who controls no rights granted in 106 whatsoever has ever been considered a copyright "owner." None of what you have quoted actually supports your argument.

    The only case (aside from this one) to decide this issue was Silvers, and they decided that if you do not control any of the rights granted in 106, you are not the copyright holder, for purposes of bringing suit against infringers.

    And they are right to do so. Righthaven is expressly forbidden from exploiting the copyright in any way - they cannot transfer it, license it themselves, or gain income from any licensing of it, by the exclusive licensee or anyone else. They have absolutely, positively, no stake in the copyright whatsoever. They are certainly not any sort of "beneficial" owner, and according to both Silvers and the judge in this case, they are not the owner of the legal title, either.

    The contract appears to be worded solely to get around Silvers, by claiming it's an "assignment" when no rights or duties whatsoever are transferred, and claiming the assingment of the copyright back to Stephens is an "exclusive license," even though there is no right in copyright law that is not licensed. Furthermore, the rights were granted solely for the purposes of suing, reverted back to Stephens immediately if Righthaven chose not to sue, and can revert back to Stephens at any point when they desired (such as after the lawsuit was over). It was purposefully, and egregiously, drafted with the attempt to bypass case law that they knew was controlling, for the express purpose of "selling lawsuits," and to pretend that Righthaven was in any way a "rights holder" rather than a law firm trying to make a living off of champery.

     

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    FUDbuster (profile), Apr 23rd, 2011 @ 5:21am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

     

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    Karl (profile), Apr 23rd, 2011 @ 11:02pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You truly are remarkable. Clearly, you don't want me to explain this to you.

    Since I don't believe your knowledge of the law is any greater than anyone else's, you're right, I don't want you to "explain" it to me. Just as I don't want a practitioner of homeopathy to explain "medical knowledge" to me.

    You just go on thinking you have it all figured out. You don't. You're clueless.

    I do not have it all figured out. I argue my case, and you (and many others) argue against me. I research the merits of your arguments, and find out why and how they are lacking, or not. So far, they have been lacking, for the most part. And I gain quite a fair amount of knowledge in the process.

    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.

    Amazingly enough, where I have stated my opinion on law in ongoing cases, the judges eventually agreed with me, and not my opponents.

    If you are actually the A.C. that called Mike "intellectually dishonest" for bringing up these points - and by your tone, I suspect you are - then you can't say the same.

     

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    FUDbuster (profile), Apr 24th, 2011 @ 9:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

     

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    Anonymous Coward, Apr 24th, 2011 @ 10:10am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Usually, "only" is placed next to the word that is being modified as exclusive. Here, that word is "one."
    No, that word is "assign" and technically it modifies the entire verb phrase; the quote is "only assign one of", not "assign only one of". That is, you are only allowed to assign one of the specified rights; you not allowed to assign something that is not one of the specified rights. I will grant you that wording used is unfortunate, as it lends itself to the wrong interpretation as we have seen, but it is correct.

     

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    Mike Masnick (profile), Apr 24th, 2011 @ 9:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Your problem, Karl, is that you don't understand what you're reading when you read statutes, caselaw, etc.

    This is ridiculous.

    First of all, nearly everyone who's looked at this situation has come to the same conclusion as Karl, including lawyers who have been in this space for a lot longer than you.

    Take, for example, Peter Friedman's post on the matter:

    http://blogs.geniocity.com/friedman/2011/04/is-righthaven-committing-champerty-it-sure-seems-so/

    Friedman is a copyright litigator and law professor. But what does he know.

    Second, complaining that Karl "doesn't understand" what he's reading is pompous, ridiculous and wrong. Look over this thread. Karl explains his points carefully, with details and pointers. You just throw up text and insist you're right. Anyone reading this thread would think that Karl is the one who's actually gone to law school, and you're some moron internet poster.

    You made some claims, and Karl carefully responded to each one, and your response is "you're too stupid to understand this."

    For my money, Karl has you beat cold, yet again. It's happened half a dozen times over the past few months, and every time it happens, it ends with you whining about how he's too stupid to understand. I think it just hurts your ego that someone without having gone to law school can understand the statutes and the caselaw better than you can. And yet, the courts and other lawyers all seem to agree with him.

    If this were actually about Karl being too clueless to understand stuff, you'd actually be able to prove him wrong. Yet you have not. You quoted stuff that doesn't actually agree with you, pretending that it does, and Karl pointed that out. Rather than responding, you tossed out an ad hom.

    I don't think anyone reading this thread thinks you came out ahead.

     

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    FUDbuster (profile), Apr 25th, 2011 @ 5:27am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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?

     

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    FUDbuster (profile), Apr 25th, 2011 @ 7:32am

    Righthaven seems unfazed by all of the EFF's foot stomping.

    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:
    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.

     

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    Karl (profile), Apr 25th, 2011 @ 11:35pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    No dice, Mike. I proved him wrong in this very thread, and he won't admit it.

    Except for the fact that the caselaw you quote does not prove your point. You haven't proved anything, so there's nothing for me to admit.

    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.

    I'm not brushing anything off. I'm reading the quotes that you posted. They say you're incorrect.

    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." The latter - an exclusive licensee of all rights - is considered the copyright owner. This is supported in every case I've read. You're totally ignoring it. Which one of us is brushing it off and saying it's wrong?

    Incidentally, I'm not quoting this distinction because I like it. The reason I know this is because when musicians assign "perpetual, worldwide, exclusive rights" to their songs, they are no longer the copyright owners in any sense of the word. It is a legal construct that has been screwing over artists since record labels were invented. The suggestion that artists aren't considered the copyright owners of their own songs, but an obviously-champertous law firm could be, is frankly offensive.

    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?

    Please do. I've been wrong before, but I think I've always admitted it. If I haven't, please point it out, so I can learn from it.

     

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    Mike Masnick (profile), Apr 25th, 2011 @ 11:47pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    No dice, Mike. I proved him wrong in this very thread, and he won't admit it.

    I just reread the conversation between the two of you, and for the life of me, I can't see where you proved him wrong. Instead, I see the opposite. You quoted some stuff, claimed it said one thing, and Karl pointed out (correctly from my read) that you are misreading what you are citing, and it appears to clearly agree with him, and not you.

    So, um, what did you "prove" and where?

    Good grief. I'm not sure I can help you either.

    I'm beginning to get the feeling that only one person in this conversation needs help. Two guess on who that is.

    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?

    I don't think it's a game. I've read your interactions with him, and he regularly seems to wipe the floor with your claims, so... um... sure. Where did you prove him wrong?

     

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    Karl (profile), Apr 25th, 2011 @ 11:55pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The latter - an exclusive licensee of all rights - is considered the copyright owner.

    I should be clear about this.

    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.

    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.

    Another thin you're ignoring: in this case, Righthaven is the asignee. If I, as an artist, assign my copyrights to company A, and they in turn assign all of those rights to company B, does company A still own the rights? No, they don't. The fact that company B is the original copyright holder, and that the entire assignment happens in the same contract, is probably what's confusing you.

     

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    Karl (profile), Apr 26th, 2011 @ 12:09am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    courts have also considered the original copyright owner, who still owns some rights, to also be considered a "beneficial owner" of those particular rights.

    Sorry, one more thing I should add, in case it wasn't clear: to be considered a "beneficial owner," you need to actually benefit from the exercising of those rights. For instance, you collect royalties from licensing.

    If you've granted a perpetual, worldwide, exclusive license to some rights, and any ability to benefit from those rights, you're not considered an owner, beneficial or otherwise.

     

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    Karl (profile), Apr 26th, 2011 @ 12:14am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    In case I still wasn't clear:

    Yeah, I've had a few. So sue me.

    ...Wait, forget I said that last bit.

     

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    FUDbuster (profile), Apr 26th, 2011 @ 5:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

     

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    FUDbuster (profile), Apr 26th, 2011 @ 5:55am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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?

     

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    FUDbuster (profile), Apr 26th, 2011 @ 5:55am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.

    WRONG. How do you get so wrong, so often?

     

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    FUDbuster (profile), Apr 26th, 2011 @ 5:57am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    How about a deal? I pick the top five most heinous errors of yours in this thread and conclusively prove you wrong. Once done, you promise to stop posting about substantive copyright law. Deal?

     

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    FUDbuster (profile), Apr 26th, 2011 @ 6:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    *what do I get if I take the time

     

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    Karl (profile), Apr 26th, 2011 @ 6:40am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Point me to ONE CASE and I'll explain to you how you are reading it wrong.

    Fogerty v. Fantasy. I researched this a couple years ago, when someone said that the copyright asignee cannot sue the original artist for infringement. He believed that's what Fogerty ruled, but he was wrong.

    The backstory is that John Fogerty, of Credence Clearwater Revival, assigned the rights to Fantasy Records, Inc. He continued to receive royalties to the recordings, and thus was considered a "beneficial owner." However, because he had granted a "perpetual, worldwide, exclusive license" to the rights to CCR songs, he was not considered the copyright owner. Thus, Fantasy could sue him for infringement, even though Fogerty was both the original copyright owner, and a beneficial owner for purposes of suing infringing third parties.

     

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    Karl (profile), Apr 26th, 2011 @ 7:21am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    By the way, here's an interesting article on the whole thing:

    Standing to Sue in Another's Shoes by Wenjie Li

    He argues, as you do, that an asignee with no interest in the copyright itself should have standing to sue. But this is an opinion, and he's pretty clear that currently, the courts do not allow this.

     

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    FUDbuster (profile), Apr 26th, 2011 @ 8:35am

    OK. Let's look at your whole statement:
    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." The latter - an exclusive licensee of all rights - is considered the copyright owner. This is supported in every case I've read.
    First of all, that's not the difference between a licensee and an assignee. You might want to read up on that since you've got that wrong.

    Moving on to your main claim: You say that Fantasy v. Fogerty backs up your assertion that an exclusive licensee of all rights is the copyright owner. You're misreading Fogerty, and I still don't think you grasp the terminological issue here.

    The confusion is the use of the term "copyright owner." Both the exclusive licensee and the copyright owner are treated as the "copyright owner" for purposes of protections and remedies under the Act. However, that does not mean that an exclusive licensee IS the copyright owner, i.e. holds the title to the copyright. The confusion is understandable.

    Let's look to Nimmer:
    An exclusive licensee is entitled only to "the protection and remedies accorded to the copyright owner ..." 17 U.S.C. 201(d)(2). "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 of the protection and remedies accorded to [the owner of such particular exclusive right]."


    So, in other words, despite what it says in Section 101, where it says that both the licensor and the licensee can be regarded as the "copyright owner," Section 201(d)(2) leads to the inescapable conclusion that the "copyright owner" and the "exclusive licensee" are different parties.

    Therefore, for purposes of rights and remedies under the Act, it's OK to consider both the licensor and the licensee as the "copyright owner." But, it's important to keep in mind that the licensee is not the true copyright owner, i.e., the owner of the title to the work. This distinction is critical in other contexts such as publication and notice.

    As far as Fogerty goes, it does no work for your argument.

    Defendant Fogerty granted his exclusive rights in the work to the plaintiff in exchange for a sales percentage and royalties. Fogerty became the beneficial owner and the plaintiff became the copyright owner. The part you're missing is that Fogerty divested himself of legal TITLE to the work. He didn't just grant an exclusive license--he granted title ownership.

    Says the court:
    A "beneficial owner" is defined as including "an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."
    Fantasy, Inc. v. Fogerty, 654 F. Supp. 1129 (N.D. Cal. 1987).

    The plaintiff became the copyright owner, i.e., the title owner, because he was granted more than just a license by Fogerty--he was granted title. Since Fogerty didn't just grant an exclusive license, that case does nothing to support your argument.

    As promised, I said point me to the caselaw you're reading and I'll explain how you're reading it wrong.

    Retort? Thanks? Care to concede the point?

     

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    FUDbuster (profile), Apr 26th, 2011 @ 8:51am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    He argues, as you do, that an asignee with no interest in the copyright itself should have standing to sue.

    I have never argued this. Never. I suspect the problem is that you don't grasp the concepts enough to understand my posts. My argument is, and always has been, that an assignee with no interest doesn't have standing. But with Righthaven, they have an interest so that rule does not apply to them. What interest? Title ownership of the copyrights. How'd they get it? Stephens Media assigned it to them. Since Righthaven has this interest, they have standing.

    You still don't get the difference between the title owner and the exclusive licensee. Righthaven holds the title, Stephens Media holds the exclusive license. While both may be regarded as the "copyright owner" for purposes of protections and remedies under the Copyright Act, technically speaking, the exclusive licensee is not the copyright owner since the licensee does not hold title.

    Got it? Care to concede the point?

     

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    FUDbuster (profile), Apr 27th, 2011 @ 10:28am

    Re:

    Crickets.

    You see, this is my problem with you and Mike. I take the time and effort to explain things to you both, and neither one of you acknowledges my efforts or concedes the point.

    Do you still think Karl's won the thread, Mike? Would it kill you to acknowledge that maybe, just maybe, Karl doesn't know what he's talking about?

     

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    FUDbuster (profile), Apr 27th, 2011 @ 10:29am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Crickets.

    Why should I go on explaining your errors to you, Karl, if you don't even recognize my efforts?

     

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    Karl (profile), Apr 27th, 2011 @ 10:34am

    Re:

    First of all, that's not the difference between a licensee and an assignee.

    This is the definition as it applies in the real world.

    I should probably be clear here. There are different types of licenses, and there are even different types of exclusive licenses.

    First, there's a non-exclusive license. I think we both agree that this type of licensee is not an "owner" in any sense of the word, so we'll drop it from the discussion.

    Then there are exclusive licenses. In this case, the licensee has the right to exclude anyone, including the licensor, from exercising any of the rights granted. These licensees are considered owners of the rights that they were licensed.

    But are they the sole owners? Not necessarily. Exclusive licenses may be granted with conditions; for instance, regional restrictions (the most common). In this case, the licensor still controls the rights granted, as long as they are outside of those restrictions (e.g. if you grant an exclusive license in the U.S., you still control the rights anywhere outside of the U.S.).

    From what I can tell, this is the type of exclusive license Nimmer is talking about. The licensee in the U.S. is the copyright owner, but the licensor has not transferred the title, since the licensor still holds some of the rights licensed to the licensee (albeit restricted). Incidentally, according to Eden v. Florelee, the licensor in this case does not have standing to sue for infringement in the U.S.

    There is, however, a different sort of "exclusive license." In this case, the licensor grants an exclusive license, in perpetuity, and worldwide. In this case, the "licensor" has transferred all the rights to the "licensee." With regards to those rights, the "licensee" is the title owner. (If the licensor still has a financial interest in the rights, he or she is the "beneficial owner," but does not own the title.)

    This is possible because each of the rights in 106 (including the "title") can be transferred separately. (This is not true in patent law, from what I understand, which is why a patent licensee is never considered a patent owner. It's also not true of copyrights prior to 1973.)

    The term "assignment," in the context of copyright law, is synonymous with "an exclusive, worldwide, perpetual license to all rights in 106." Assignment transfers the entire bundle of rights in 106.

    This is why this statement is slightly misleading:

    He didn't just grant an exclusive license--he granted title ownership.

    You're right that he didn't grant just any exclusive license. Instead, he granted a perpetual, worldwide, exclusive license, to all the rights in 106. That's how the title was transferred from him to Fantasy. In general, it's how copyright titles are transferred.

    Leaving aside the difference between exclusive licenses and title transfers, there is one other thing to recognize. A "title" is not a piece of paper somewhere that claims you're the owner. In copyright, a transfer of "title" is a transfer of one or more of the rights in 106. That is, the title owner must be granted the exclusive use of those rights (which can later be licensed or transferred again). If you never transfer the exclusive use of any of those rights, you haven't transferred the title.

    This is why the judge declared that Righthaven was not the title holder of the rights in this case. They never held the exclusive use of any of the rights in 106, at any time, in any region.

    The contract attempts to get around this, by saying that Righthaven was assigned the title, but not any of the rights. But you simply can't do this. A transfer of the title just is a transfer of the rights; they are not separable entities. Once you've lost interest in the rights, you have "no interest in the copyright itself."

    In fact, that's the entire intent of copyright transfer. The assignor tranfers the title to the assignee, with the intent that the assignee exploit the rights. That it wasn't the intent here is the first clue that this "transfer of title" is a sham.

     

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    FUDbuster (profile), Apr 27th, 2011 @ 11:07am

    Re: Re:

    This is why the judge declared that Righthaven was not the title holder of the rights in this case.

    No judge declared any such thing. Righthaven was ordered to make a filing. They haven't even filed it yet. So obviously, the judge hasn't ruled on a filing that hasn't been filed yet.

    As to the rest of your post... That's not the difference between a licensee and assignee that I was thinking of. No matter, let's stick to the bigger issue.

    So if I understand you correctly, you are saying that a grant of exclusive rights without reservation of some right or subject to some condition is actually a transfer of title. Can you point me to some caselaw that explicitly says this.

    Righthaven did not transfer title back to Stephens Media when they granted Stephens Media the exclusive rights to "exploit" the work. That they did not intend to do so is clear from the face of the agreements.

    You are arguing that title transferred back to Stephens Media by operation of law. Prove it.

     

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    Mike Masnick (profile), Apr 27th, 2011 @ 5:17pm

    Re: Re:

    Crickets.


    No reason to be snide. Unlike you, some of us have actual jobs, and a lot more important things to do than respond to childish FUDspreaders.

    You see, this is my problem with you and Mike. I take the time and effort to explain things to you both, and neither one of you acknowledges my efforts or concedes the point.

    Uh, that's because you're wrong. Pretty clearly. Nimmer's discussion on the topic is about cases where less than all of the 106 rights have been transferred. If all of the 106 rights have been transferred, the licensor no longer has the copyright.

    Do you still think Karl's won the thread, Mike? Would it kill you to acknowledge that maybe, just maybe, Karl doesn't know what he's talking about?

    Yes, I'm still quite confident that Karl won the thread. I think that you're misreading Nimmer, whose work I've always found to be inferior to Patry's anyway.

    I'm happy to acknowledge that neither Karl nor I may understand what we're talking about at times... but in this thread, in this discussion, I think it's pretty clear that Karl has you beat. I am happy that you actually took time to dig in on a point, but again, your interpretation makes little sense and is not, in fact, supported by Nimmer (other than if you misread it). The point being that Righthaven has no title in the copyright, because at no point, did it actually have any of the 106 rights. As the agreement notes, it never had any of the 106 rights at all, and only had the right (with restrictions!) to sue. That's why Silvers applies and why Righthaven will inevitably lose, as almost all legal authorities who have spoken out on this subject have acknowledged.

    To date, I have seen no one other than you and Righthaven's lawyers support your position. Everyone else -- and we're talking about people who know the law a lot better than you do -- have all agreed that the agreement is incredibly damaging to Righthaven's cases.

     

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    FUDbuster (profile), Apr 27th, 2011 @ 5:48pm

    Re: Re: Re:

    Uh, that's because you're wrong. Pretty clearly. Nimmer's discussion on the topic is about cases where less than all of the 106 rights have been transferred. If all of the 106 rights have been transferred, the licensor no longer has the copyright.

    Nimmer didn't say that he was only talking about where less than all of the 106 rights were transferred. Nor did Nimmer say that once all of the rights have been transferred, the licensor no longer has the copyright. You're completely making that up.

    Yes, I'm still quite confident that Karl won the thread. I think that you're misreading Nimmer, whose work I've always found to be inferior to Patry's anyway.

    Karl won the thread even though he hasn't backed up any of his claims with proof? Weird. And just because you find Nimmer to be inferior doesn't prove your claim. Can you prove your claim? Neither one of you has offered a shred of proof.

     

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    FUDbuster (profile), Apr 27th, 2011 @ 6:20pm

    Re: Re: Re:

    If an exclusive licensee is the title owner, then how do you explain the Ninth Circuit's holding here:
    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).

    Further, as stated by the District Court, “Congress was aware that prior to the 1976 Act, licensees could not sublicense their right in an exclusive license [without the express consent of the licensor]. With that knowledge in hand, however, Congress chose to limit exclusive licensees ‘benefits' under the 1976 Act to ‘protection and remedies.’ ”4 Gardner, 110 F.Supp.2d at 1287 (internal citation omitted).

    In sum, both parties contend that the plain language of the 1976 Act supports their view. There are weaknesses in both of their arguments because neither the 1909 Act nor the 1976 Act explicitly address an exclusive licensee's right to transfer, absent the consent of the licensor. Although neither party's plain language arguments is dispositive, the fact that Congress chose not to explicitly address this issue in the 1976 Act and the limiting “protection and remedies” language of § 201(d)(2) indicates that the state of the law remains unchanged. Thus, we hold that the 1976 Act does not allow a copyright licensee to transfer its rights under an exclusive license, without the consent of the original licensor.
    Gardner v. Nike, Inc., 279 F.3d 774, 780 (9th Cir. 2002).

    If an exclusive licensee truly owned the thing he licensed, then why would he possibly need his licensor's permission to sub-license the work? The answer is simple: An exclusive license is less than full ownership. The licensor retains title.

    Still think Karl won the thread? I'll be awaiting your reply, with proof if you can muster it.

     

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    Mike Masnick (profile), Apr 27th, 2011 @ 11:14pm

    Re: Re: Re: Re:

    Nimmer didn't say that he was only talking about where less than all of the 106 rights were transferred. Nor did Nimmer say that once all of the rights have been transferred, the licensor no longer has the copyright. You're completely making that up.

    If you read the Nimmer passage, he's pretty clearly talking about situations in which not all of the rights are assigned. You interpret him differently, but I don't think a court would agree with you.

    Karl won the thread even though he hasn't backed up any of his claims with proof? Weird.

    I'm sorry, I've read the thread, and he provides plenty of proof. You just keep misreading things. It's kinda strange, actually.

     

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    Karl (profile), Apr 28th, 2011 @ 12:41am

    Re: Re: Re:

    You are arguing that title transferred back to Stephens Media by operation of law.

    I am actually arguing that the title was never transferred to Righthaven in the first place.

    The contract claims Stephens is granted an "exclusive license," but in any other copyright contract, this would be considered an "assignment." But even that is misleading. Since Stephens is the original copyright owner, the correct wording would be that all rights are reserved.

    You're claiming that a transfer of title can occur when every single one of the rights in 106 are reserved by the original owner. To use your words: prove it.

    Also, r.e. Gardner: The idea that an exclusive licensee can transfer rights is a pretty minor point, and the court doesn't actually say that Nike still "owned the title" to the rights. There's also this opinion on the case, from the Patent, Trademark & Copyright Journal:
    Judge Ferguson's reading of Section 201(d)(2) is strained, to say the least. He attempts to find a distinction between an exclusive licensee and a copyright owner in a statute that instead appears to be trying to remove such a distinction. Even though Judge Ferguson states that Section 201(d)(2) limits the rights of exclusive licensees, the term "licensee" is nowhere in that provision. Instead, the statute talks about "owners" of rights, which is consistent with the usage in the rest of Title 17 that treats owners and exclusive licensees alike.

    But what do they know.

    Anyway, this is interesting, and I didn't know about the case. Thanks for that. I'll be digging around about it and, I'm sure, have more to say.

    However, it doesn't support Righthaven in any way - since Stephens does not, in fact, have to ask permission from Righthaven to transfer the rights.

     

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    FUDbuster (profile), Apr 28th, 2011 @ 6:22am

    Re: Re: Re: Re: Re:

    If you read the Nimmer passage, he's pretty clearly talking about situations in which not all of the rights are assigned. You interpret him differently, but I don't think a court would agree with you.

    Can you point me to the exact part of the passage you're talking about and explain to me exactly how you're interpreting it. It's hard to debate you when you're so vague.

    I'm sorry, I've read the thread, and he provides plenty of proof. You just keep misreading things. It's kinda strange, actually.

    Please provide links to the exact posts where Karl gives proof. You're being too vague.

    Noticeably, you cut off the end of my post. Can you provide any proof? Claiming a bunch of lawyers agree with you is not proof. Exact court language that backs up your position, please. And if you can't provide that, then please admit it. You haven't explained or proven anything. If you're not up to it, I understand. But don't pretend like you've won the debate. You haven't proved a thing.

     

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    FUDbuster (profile), Apr 28th, 2011 @ 6:35am

    Re: Re: Re: Re:

    The rights are not reserved. Ownership transfers to Righthaven and Stephens Media is granted an exclusive license. Every judge that has looked at the copyright assignment has agreed that ownership transferred to Righthaven. You're wishing and praying that once a judge hears about the exclusive license back, they'll magically make that transfer of ownership to Righthaven disappear. That makes no sense whatsoever. Owners can grant exclusive licenses, even to their assignors in the first instance.

    YOU HAVE PROVIDED NO PROOF OF ANY OF YOUR CLAIMS.

    I am not claiming the rights are reserved. I EXPLICITLY and REPEATEDLY said exactly the opposite.

    Also, r.e. Gardner: The idea that an exclusive licensee can transfer rights is a pretty minor point, and the court doesn't actually say that Nike still "owned the title" to the rights.

    MINOR POINT? I love how you brush off things that absolutely prove you wrong. It's a HUGE point. If the licensee didn't have full ownership, then why would they need their licensor's permission? You didn't answer that. The ONLY EXPLANATION is that it's because the exclusive licensee doesn't have FULL OWNERSHIP.

    Whatever somebody writes in a journal doesn't trump the Ninth Circuit. What I quoted from the Ninth Circuit IS THE LAW in the Ninth Circuit.

    YOU CONTINUE TO PROVE NOTHING.

    Quote me caselaw, Karl. PROVE ANYTHING THAT YOU'VE SAID.

    You cannot. And Mike, your faith-based follower, will always think that you're right. Why? Because he likes WHAT you're saying. It doesn't matter to him, apparently, that you've not backed it up.

    FAITH-BASED. Both of you.

    PROVE ANY OF YOUR CLAIMS, KARL. Stop telling us what you think the law is, and PROVE IT. WHERE IS YOUR PROOF????

     

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    FUDbuster (profile), Apr 28th, 2011 @ 9:14am

    Re: Re: Re: Re: Re: Re:

    Tick-tock. Prove that your claims are not faith-based. Point me to Karl's "proof." Point me to the exact words from the Nimmer quote that back up your interpretation. Tick-tock.

     

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    Mike Masnick (profile), Apr 28th, 2011 @ 9:18am

    Re: Re: Re: Re: Re: Re: Re:

    Tick-tock. Prove that your claims are not faith-based. Point me to Karl's "proof." Point me to the exact words from the Nimmer quote that back up your interpretation. Tick-tock

    Tick-tock? I told you to knock of the childish crap.

    And give up the demand for "proof." You know damn well that we're arguing over interpretations of the law. It seems clear to me in reading Nimmer and the caselaw that Karl has proved his case. It seems clear to me that you have misread the caselaw and Nimmer. We've explained to you why, and just like you've done in the past, you started footstomping and acting like a little child.

    As I know from having a little child, when a child throws a temper tantrum, you don't give in.

    So I'm done with this thread. Anyone is free to read it and decide for themselves. I expect, in your typical childish fashion that you will declare victory (please be sure to throw in one of your standard LOLs). But I trust anyone can read and see who had the better arguments here.

    And, I will ask you, once again, to stop with the childish behavior, because when you do that, I will not respond any further.

     

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    FUDbuster (profile), Apr 28th, 2011 @ 9:38am

    Re: Re: Re: Re: Re: Re: Re: Re:

    You haven't proved a thing. You haven't linked to any of Karl's posts that you purport to be proof. You haven't explained anything. You haven't cited any caselaw. Just admit it, Mike... you didn't prove anything.

    Of course you're done with this thread. Anything to get out of admitting that you haven't proved a single thing.

    Typical. You don't have the goods. That's OK. I never thought you did.

     

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    FUDbuster (profile), Apr 28th, 2011 @ 9:48am

    Re: Re: Re: Re: Re: Re: Re: Re:

    And in case you're wondering why I and others can't take you seriously, it's exactly for these reasons. You make conclusory statements that you insist are correct, but you don't offer ANY proof of their validity. It's faith-based FUD. I've called you out on it in this thread, and now you're running away like a child. It's hilarious.

    Stay and debate me, Mike, if you have the goods. I'll stay with this thread for as long as it takes. I won't run away like you. Prove me wrong, and I'll gladly admit that I'm wrong.

    As it is, though, you haven't proved a single thing--and you know it. We all know it.

     

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    Mike Masnick (profile), Apr 28th, 2011 @ 10:45am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You haven't proved a thing. You haven't linked to any of Karl's posts that you purport to be proof. You haven't explained anything. You haven't cited any caselaw. Just admit it, Mike... you didn't prove anything.

    I stated what I had to say. You started footstomping. People are free to read the full thread and make their own determinations.

     

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    Mike Masnick (profile), Apr 28th, 2011 @ 10:47am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    And in case you're wondering why I and others can't take you seriously

    I love it when you think you know who takes me seriously. In the last few weeks alone, I had a US Senator and a high level person in the White House ask me my opinion on particular points.

    You?

    Stay and debate me, Mike, if you have the goods.

    As I said. I made my points, and I have the goods, as stated above. Everyone is free to read what was said and can see that we're down to interpretations and you demanding "proof" that one interpretation is better than another. We'll see what the court says in the Righthaven case, okay? That'll be proof.

    And, please, stop the childish footstomping.

     

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    FUDbuster (profile), Apr 28th, 2011 @ 11:01am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Where is your proof? What goods? What arguments have you made in this thread? Where are they? Which posts of Karl's are you alluding to when you say Karl proved his point? What exact language from Nimmer do you think proves your point? What is your response to the Nike case from the Ninth Circuit I pointed to? What are your arguments? Where are your arguments? What is the basis for your arguments?

    You haven't proved a thing in this thread. Point me to the proof. Simple. Just give me a link. Look through this thread and give me the link.

    I just want you either (1) prove your point, or (2) admit that you can't prove your point. That's not foot-stomping, that's calling you out. Can't you just admit that you haven't proved a thing?

    You say you have the goods. Prove it. Or just admit you don't have them. Simple.

    No beating around the bush. No calling me a child. Either (1) say here are my arguments and here's my proof and give me the information, or (2) admit that you haven't the arguments or the proof. It's that simple.

     

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    FUDbuster (profile), Apr 28th, 2011 @ 11:04am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Yes, you said what you had to say--which was nothing in the way of argument or proof. You simply declared that Karl proved his point. You refuse to even provide a link to the post that you think has Karl proving his point. You've made no arguments backed with any proof. Can't you just admit it? You've not answered any of the many points with proof that I've offered. You've just declared Karl to be the thread winner without any explanation. Of course people can read this thread and see that you've offered nothing but conclusory remarks. Produce the goods or admit you don't have them. Simple. I've offered lots of arguments and lots of proof. Where's yours?

     

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    FUDbuster (profile), Apr 28th, 2011 @ 11:53am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I love it when you think you know who takes me seriously. In the last few weeks alone, I had a US Senator and a high level person in the White House ask me my opinion on particular points.

    I had lunch with the Chief Justice of my state's Supreme Court last month. I had an in-depth discussion with the recently retired President of the Supreme Court of Denmark just a couple weeks ago. Big deal. I meant take your understanding of substantive copyright law seriously. I doubt they called you for your in-depth legal analysis of substantive legal issues.

     

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    FUDbuster (profile), Apr 29th, 2011 @ 9:24am

    Here's something from a law journal article that helps to explain the Second Circuit's Morris v. Business Concept decision and the Ninth Circuit's Gardner v. Nike decision:
    Interpreting section 201 of the Copyright Act of 1976, the court in Gardner v. Nike, Inc. held that Congress did not grant exclusive licensees the right to freely transfer the license, but rather only the protections and remedies the Copyright Act gives to the copyright owner with respect to the particular rights that are licensed. Such protections and remedies include the right of the licensee to sue and defend suits in its own name, but not the right to assign the license.

    The Ninth Circuit was also influenced by the general policy consideration that reading into the Copyright Act the right of a licensee to freely transfer an exclusive license would be inconsistent with the copyright owner's ability to monitor the use of its copyright.

    Gardner expressly rejected Patient Education Media as authority for the proposition that an exclusive copyright license may be assigned without the licensor's consent, largely because the relevant language in Patient Education Media was dicta. Moreover, Gardner correctly observed that Patient Education Media misquoted section 201 when it stated that an exclusive licensee receives all the “rights and protections” of the copyright owner (which could be read to include the right to assign), rather than the narrower terms “protection and remedies” (which seems to be limited to the right of the licensee to sue and defend suits in its own name).

    Gardner is buoyed by the Second Circuit's holding in Morris v. Business Concepts, Inc. that an exclusive licensee of certain rights under a copyright cannot be considered a “copyright owner” under the Copyright Act. Although assignability was not at issue in the case, Morris involved a journalist who granted a magazine publisher the exclusive right to include the journalist's columns in several monthly issues of the publisher's magazine. The Second Circuit concluded that the magazine publisher was not the owner of the underlying copyright by virtue of the exclusive license; rather the license granted the publisher only the right to publish the columns in its magazines. The Morris court held that an exclusive copyright licensee is the owner only with respect to the particular rights that are licensed. As Gardner holds, such a licensee receives only the protections and remedies under the Copyright Act with respect to such rights but not the right to freely transfer the license. A court following Gardner and Morris would likely find that an exclusive copyright license that is silent on the issue of assignment is not assignable without the express consent of the licensor.

    ***
    Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §§10.02[A], [B][4] (Matthew Bender & Co. 2001) (1963). One might think that since an exclusive copyright license is treated as an assignment under the copyright laws, the licensee thus has full title to the licensed copyright, including the right to assign such copyright. However, Nimmer contemplates that the assignment of an exclusive copyright license is a transfer of ownership for certain limited purposes only (e.g., standing to sue) and not a complete alienation of rights. Id. Thus, according to Nimmer, a licensor may grant an exclusive copyright license and, at the same time, restrict the licensee's ability to assign that exclusive copyright license by virtue of express contractual restrictions. Id. Put another way, the express contractual restrictions on assignment do not make an otherwise exclusive copyright license non-exclusive.
    Neil S. Hirshman, Michael G. Fatall, Peter M. Spingola, Is Silence Really Golden? Assumption and Assignment of Intellectual Property Licenses in Bankruptcy, 3 Hastings Bus. L.J. 197, 200-02 (2007).

    So we have the Second Circuit, the Ninth Circuit, and Nimmer explicitly saying that an exclusive licensee does not have complete title ownership of the rights they are licensed. In other words, the two most influential circuit courts in copyright law say this, and the preeminent authority on copyright law says this.

    Add to that, I was checking out the U.S. Copyright Office's website, and sure enough, when you register your interest in a copyright as an exclusive licensee, the title owner is listed separately.

    Mike and Karl, how do you reconcile this with your position?

     

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    FUDbuster (profile), Apr 29th, 2011 @ 9:40am

    And perhaps most obvious of all, if an exclusive licensee gets title ownership, then why does his licensor have the power to terminate his license under the Copyright Act?

    There are five rights that may be licensed by the licensor. Each one works independently. The licensor may grant one or all of these rights to an exclusive licensee and retain title. You have this strange theory that once a licensor licenses that fifth right he loses his title ownership. That makes no sense, and you have not, nor can you, point to any authority that backs that assertion.

    I await your explanations.

     

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    FUDbuster (profile), Apr 29th, 2011 @ 11:01pm

    Crickets. Yeah, you've got the goods.

     

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  201.  
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    Mike Masnick (profile), Apr 30th, 2011 @ 12:29am

    Re:

    Crickets. Yeah, you've got the goods.


    I already answered you.

    Separately, I already told you to knock off the childish "crickets" crap.

     

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  202.  
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    FUDbuster (profile), Apr 30th, 2011 @ 12:55am

    Re: Re:

    More vague answers. Of course you won't commit to an actual answer. It's hilarious.

    Be straight up. What is your answer? Precisely, please.

     

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  203.  
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    FUDbuster (profile), Apr 30th, 2011 @ 12:57am

    Re: Re:

    Shall I make a list of every single point in this thread that you have not responded to? How about a list of every claim for which you provided no proof? We can go through it line by line... or you can just admit that you haven't the goods.

     

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    FUDbuster (profile), Apr 30th, 2011 @ 1:10am

    Re: Re:

    The reason the "crickets" thing bothers you so much is because you know I'm right. It's totally hilarious. I've called you out and you look like an idiot. I know it. You know it. Everyone reading this knows it. You haven't answered a thing. You just keep making all of these vague posts.

    Stop stalling, Mike. Just give us your answer. Straight up. No bullshit. A direct answer. Answer ANY of the questions that have been asked of you.

    Not sure what question? You can start here: http://www.techdirt.com/articles/20110416/01084413924/unsealed-document-reveals-sham-copyright-assig nments-to-righthaven.shtml#c2567

    No more bullshit about calling me a child. You're the child. A real man would just admit he doesn't have the answer. But no, not you. You'll either respond by calling me a child. Or you won't respond at all. The last thing you'll do is ACTUALLY answer the question.

    Yeah, you've got the goods. Crickets.

     

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  205.  
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    Karl (profile), Apr 30th, 2011 @ 3:18am

    Re:

    Brief reply:

    If the licensee didn't have full ownership, then why would they need their licensor's permission?

    The decision could be interpreted that the transfer of title does not, automatically, transfer the right to resell that title. In fact, that's the interpretation that makes the most sense.

    I'd also like to point out that you missed this:

    The Morris court held that an exclusive copyright licensee is the owner only with respect to the particular rights that are licensed.

    This is consistent with my distinction between exclusive licenses. The "owner" is the person who has the exclusive use of the rights that are transferred. They are not the owner of rights that are not transferred.

    And pay attention to the Nimmer quote:

    Nimmer contemplates that the assignment of an exclusive copyright license is a transfer of ownership for certain limited purposes only (e.g., standing to sue) and not a complete alienation of rights

    If you're interpreting it correctly, it means that Righthaven was not the "owner" of the title either, since it was an "assignment" (ostensibly) - in fact, it would mean that you can't transfer a title by assignment at all. But I don't think you're interpreting it correctly.

    This idea is really off the mark, I think:

    And perhaps most obvious of all, if an exclusive licensee gets title ownership, then why does his licensor have the power to terminate his license under the Copyright Act?

    If this is the case, then title ownership can never be transferred. Every original author has this power, no matter how he transfers ownership. The only exception is a work for hire, which I'm sure we agree doesn't apply in this case.

    Finally, I'd like you to pay close attention to Silvers:
    Frank & Bob Films retained ownership of the underlying copyright to "The Other Woman" script, but assigned to Silvers "all right, title and interest in and to any claims and causes of action against Sony Pictures Entertainment, Inc., Columbia TriStar, and any other appropriate persons or entities, with respect to the screenplay 'The Other Woman?' and the motion picture 'Stepmom.'"

    It was also an explicit assignment of the title. The court's ruling:
    The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the "legal or beneficial owner of an exclusive right under a copyright." [...]

    The right to sue for an accrued claim for infringement is not an exclusive right under § 106. [...]

    Exclusive rights in a copyright may be transferred and owned separately, but § 201(d) creates no exclusive rights other than those listed in § 106, nor does it create an exception to § 501(b).

    Section 501(b) must also be read in conjunction with § 501(a), which provides that one who "violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 is an infringer." The definition of an infringer in subsection (a) is parallel to the definition of a proper plaintiff in subsection (b). Common to both subsections is an exclusive copyright interest.[...]

    [U]nder § 501(b) the plaintiff must have a legal or beneficial interest in at least one of the exclusive rights described in § 106.

    The legislative history makes clear, too, that the list of exclusive rights found in § 106 is exhaustive. The House Report states:

    The exclusive rights accorded to a copyright owner under section 106 are "to do and to authorize" any of the activities specified in the five numbered clauses. [...]

    Silvers was not entitled to institute and may not maintain this action against Sony for alleged infringement of the copyright in "The Other Woman."

    Seems pretty clear-cut to me.

     

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    Karl (profile), Apr 30th, 2011 @ 4:04am

    Re:

    I'd also like to point this out:

    So we have the Second Circuit, the Ninth Circuit, and Nimmer explicitly saying that an exclusive licensee does not have complete title ownership of the rights they are licensed.

    At least in the Nike case, you are wrong:
    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.

    They didn't just limit themselves to "licensees," but included all transfers of copyright ownership. So, my interpretation seems like the logical one.

     

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  207.  
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    FUDbuster (profile), Apr 30th, 2011 @ 8:03am

    Re: Re:

    Good grief. You still haven't answered the main question: Prove that once you grant an exclusive license of all five rights under 106, you no longer hold title. That is your claim, and you have yet to supply ANY proof of this claim. The claim is wrong, and that's why you're having trouble proving it.

    I'm sure that Mike is glad that you're back in this thread to do his arguing for him. God knows he's not up to it. At least you're trying. Mike just declared victory with no explanation. I'll give you props for that. You're more of a man than Mike.

    Sigh. Let's look at the rest of your nonsense...

    The decision could be interpreted that the transfer of title does not, automatically, transfer the right to resell that title. In fact, that's the interpretation that makes the most sense.

    Nope. If you hold title to something, you can transfer that title to another. Exclusive licensees do not hold title, and that's why they can't transfer title to another. That's what makes the most sense.

    I'd also like to point out that you missed this: The Morris court held that an exclusive copyright licensee is the owner only with respect to the particular rights that are licensed.

    This is consistent with my distinction between exclusive licenses. The "owner" is the person who has the exclusive use of the rights that are transferred. They are not the owner of rights that are not transferred.


    Yes, they are the "copyright owner" as defined under Section 101. That means they are entitled to the "protections and remedies" of the Act. They are NOT the title owner, as is obvious since they don't have the right to divest title. If they truly owned title, they could transfer that title. I've explained this many times in this thread, quoting circuit courts and Nimmer who all agree with what I'm saying.

    And pay attention to the Nimmer quote: Nimmer contemplates that the assignment of an exclusive copyright license is a transfer of ownership for certain limited purposes only (e.g., standing to sue) and not a complete alienation of rights

    If you're interpreting it correctly, it means that Righthaven was not the "owner" of the title either, since it was an "assignment" (ostensibly) - in fact, it would mean that you can't transfer a title by assignment at all. But I don't think you're interpreting it correctly.


    That makes zero sense. Notice how they are talking about the assignment OF A LICENSE. Righthaven was not assigned a license, Righthaven was assigned the copyright. BIG DIFFERENCE.

    Title may be transferred by assignment. Title is not transferred by license. There is all sorts of information out there about the difference between a license and an assignment. You should read up, since you don't seem to grasp this most fundamental point.

    Says the Ninth Circuit: "By licensing rather than assigning his interest in the copyright, the owner reserves certain rights, including that of collecting royalties." Harris v. Emus Records Corp., 734 F.2d 1329, 1334 (9th Cir. 1984).

    This idea is really off the mark, I think: And perhaps most obvious of all, if an exclusive licensee gets title ownership, then why does his licensor have the power to terminate his license under the Copyright Act?

    If this is the case, then title ownership can never be transferred. Every original author has this power, no matter how he transfers ownership. The only exception is a work for hire, which I'm sure we agree doesn't apply in this case.


    Nope. You don't grasp the fundamentals so it's no surprise you reach erroneous conclusions with such regularity.

    Finally, I'd like you to pay close attention to Silvers: Frank & Bob Films retained ownership of the underlying copyright to "The Other Woman" script, but assigned to Silvers "all right, title and interest in and to any claims and causes of action against Sony Pictures Entertainment, Inc., Columbia TriStar, and any other appropriate persons or entities, with respect to the screenplay 'The Other Woman?' and the motion picture 'Stepmom.'" *** Seems pretty clear-cut to me.

    So what? This does no work for your argument. They tried to assign only the right to sue. The Ninth Circuit said no dice. That doesn't apply here since Righthaven was not just assigned the right to sue. Righthaven was assigned title ownership of all the 106 rights. Silvers only helps Righthaven.

    You know, there are good arguments that Righthaven is doing something wrong, but you're not making them. The fact that you don't understand the difference between an assignment and an exclusive license is your biggest problem.

    You continue to prove nothing. I'll be waiting for you to prove your theory that once you grant an exclusive license of all five 106 rights, the licensor magically loses title. Noticeably, you haven't even tried to prove this. You can't prove it, since it's not true.

    [Mike. If you're going to adopt someone else's arguments as your own (and that's all you ever do with your legal arguments anyway), you might want to adopt arguments of someone that knows what they're talking about.]

     

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    FUDbuster (profile), Apr 30th, 2011 @ 8:10am

    Re: Re:

    At least in the Nike case, you are wrong:

    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.

    They didn't just limit themselves to "licensees," but included all transfers of copyright ownership. So, my interpretation seems like the logical one.


    Sigh. The problem here is that you're so confused, you don't even realize it when your errors are being pointed out to you.

    All the Ninth Circuit is saying there is exactly what I've been saying in this thread. An exclusive licensee is a "copyright owner" for the purposes of "protections and remedies" under the Act. The whole point of that case, which seems to go right over your head, is that the exclusive licensee is not the true title owner of the thing they license. If they were, they could sub-license the work to another. But since they are not the title owner of the work--their licensor holds title--the licensee cannot sub-license the work. That only proves my point.

    Your confusion about all of this is quite remarkable. That Mike's anointed you to do his legal arguing for him is hilarious. I'm literally laughing my ass off at this point. The fact that Mike thinks you're the thread winner only shows that Mike has no idea about these things either.

     

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  209.  
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    Karl (profile), Apr 30th, 2011 @ 4:07pm

    Re: Re: Re:

    You still haven't answered the main question: Prove that once you grant an exclusive license of all five rights under 106, you no longer hold title.

    You still haven't answered the main question: Prove to me that it is possible to transfer the title of a copyright, without transferring a single one of the rights in 106, nor any financial interest in the exploitation of those rights.

    To use your phrase: "crickets."

    That makes zero sense.

    Precisely my point.

    Righthaven was not assigned a license, Righthaven was assigned the copyright.

    Righthaven was assigned nothing. Stephens "retained" the right to "exploit" the copyrights "for any lawful purpose whatsoever," and Righthaven was never assigned the "right or license to Exploit or participate in the receipt of royalties from the Exploitation" of the copyrights. Other than, of course, "the right to proceeds in association with a Recovery" - which is not something that can be transferred independently.

    Let's put it this way. If the agreement in the Silvers case was the same as this one, would they have ruled any differently? I have no doubt that they would not.

    Says the Ninth Circuit: "By licensing rather than assigning his interest in the copyright, the owner reserves certain rights, including that of collecting royalties."

    Interesting. The Ninth Circuit seems to say that the beneficial owner of a copyright is the "title" owner, and that the only way to transfer the title is by divesting yourself of all interest in the copyright (both the ability to exploit the rights, and any financial interest in their exploitation).

    Of course, by that standard, Righthaven is not the title owner - since Stephens "retained" both, and Righthaven was assigned "the right or license" to neither.

    [Me:] Every original author has this power, no matter how he transfers ownership. The only exception is a work for hire, which I'm sure we agree doesn't apply in this case.

    [You:] Nope.


    Yep. It includes assignment. 17 USC 201 is very, very clear on this point:
    In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination [...]

    All transfers in 201 are applicable. The only exception is a "work made for hire" (and a work transferred by will - I'll admit I forgot to mention that one, but it's not relevant here).

    I'm really surprised you didn't know this. That's why artists were so up in arms when Mitch Glazier (then a congressional staffer, now VP of the RIAA) inserted language into an unrelated bill, without congressional approval, categorizing every "sound recording" as a "work for hire." It would rob artists of the right to terminate their contracts (which "assigned" the rights to sound recordings).

    Nope. If you hold title to something, you can transfer that title to another. [...] The whole point of that case, which seems to go right over your head, is that the exclusive licensee is not the true title owner of the thing they license.

    Nope. The whole point of that case is that any transfer of ownership under 201 does not automatically transfer resale rights. The court was quite clear on this point:

    This definition calls into question the distinctions that were previously drawn between an assignment and an exclusive license under the indivisibility doctrine. Nimmer, supra, § 10.02[A] ("An exclusive license ... is equated with an assignment...."). [...]

    As discussed by the District Court, the crux of this case is the appropriate interpretation of 17 U.S.C. § 201. The District Court rejected Appellants' argument, finding that §201(d)(1) did not apply to the present case and that §201(d)(2) only conferred the "protections and remedies" explicitly included in the 1976 Act, but not the rights. [...]

    However, the limiting language in § 201(d)(2), as discussed next, indicates that this section does not, in fact, cover transfers by exclusive licensees or owners of a particular exclusive right. [...]

    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.

    If you believe that the transfer of a "title" always means the transfer of resale rights, then nothing in 201 automatically transfers "the title." THAT was the point of Nike.

     

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    Karl (profile), Apr 30th, 2011 @ 4:22pm

    Re: Re: Re: Re:

    I should also point out one thing. In copyright law, judges generally rule, not because of the specific language in the contract, but because of its intent. Ladas & Perry put it this way: "the overriding factor is the mutual intent of the parties to transfer an ownership interest in the copyright." See e.g. Armento v. Laser Image.

    I don't think anyone in their right mind would view the Agreement here as an intent to transfer ownership. They would see it as it is: an attempt to sell lawsuits.

     

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    Karl (profile), Apr 30th, 2011 @ 4:47pm

    From an actual lawyer

    Incidentally, just to double-check everything, I actually asked a friend of mine, who is actually a practicing copyright lawyer. He gave me permission to post his response, but he doesn't want his personal info spewed all over the Internet, so requested that I refrain from posting personally identifiable information.

    Here's the discussion:
    [Me:] My interpretation is that Righthaven was never actually assigned any part of the copyright, regardless of what the Agreement says.

    This is probably accurate. If anything, they simultaneously received and then assigned away the copyright, which still means that they don't have the copyright. But really it looks like a proper assignment was never executed.

    I think he is on the wrong track in terms of "title owner" = legal owner. I would be interested to see actual support for the notion that the owner of an exclusive right in a work is not the legal owner of that right. I'm guessing he's thinking that Stephens is a "beneficial owner," but if you look at term, it is clear that it applies to someone who doesn't hold an exclusive right under 106, but can receive some benefit. The standard example being an author who signs away the exclusive rights to a work, but still receives royalties.

    Maybe Rightshaven could be a beneficial owner, as the assignment alleges that they get some benefit from the suit. You could argue that since 501(b) contemplates a benefit that accrues outside the context of the exclusive right, that the right to some settlement cash might make Rightshaven a beneficial owner. But then you are right back in the same boat as Silvers.

    In any event, "title owner" isn't a very commonly used term when it comes to copyright law (if you google it along with nimmer you'll just find your buddy's discussion of the idea). The only times I've heard it come up are not relevant to the discussion. Traditionally we deal with individuals as being authors, copyright holders, licensee/licensor. But if there is such a concept in copyright law, I would be interested to know about it. Copyright is just a bundle of exclusive rights.

    The contract attempts to get around this, by saying that Righthaven was assigned the title, but not any of the rights. But you simply can't do this. A transfer of the title just is a transfer of the rights; they are not separable entities. Once you've lost interest in the rights, you have "no interest in the copyright itself."

    Yup. There's nothing to copyright besides the rights granted in 106.

    I understand if you think this is a complete waste of time. It probably is.

    It's not a total waste of time. It seems like you are keeping a crappy 1L from studying, thus, helping ensure that he fails.

     

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    FUDbuster (profile), Apr 30th, 2011 @ 6:13pm

    Re: Re: Re: Re:

    You still haven't answered the main question: Prove to me that it is possible to transfer the title of a copyright, without transferring a single one of the rights in 106, nor any financial interest in the exploitation of those rights. To use your phrase: "crickets."

    Why would I prove that? I never said that was true. Keep up. As I've indicated over and over and over again, ownership of the 106 rights transferred to Righthaven. Righthaven then, acting as owner, granted Stephens Media an exclusive license. Why are you making me repeat myself so much?

    Righthaven was assigned nothing. Stephens "retained" the right to "exploit" the copyrights "for any lawful purpose whatsoever," and Righthaven was never assigned the "right or license to Exploit or participate in the receipt of royalties from the Exploitation" of the copyrights. Other than, of course, "the right to proceeds in association with a Recovery" - which is not something that can be transferred independently.

    Yet every judge who has looked at the copyright assignment alone has agreed that Righthaven was assigned the rights. What about the Strategic Alliance Agreement changes this fact? Just because Righthaven, whom the courts agree is assigned the rights, grants an exclusive license doesn't change this. Again, repeating myself.

    Let's put it this way. If the agreement in the Silvers case was the same as this one, would they have ruled any differently? I have no doubt that they would not.

    Really? No doubt? It's all black and white? LOL! At least I admit that this is a gray area.

    Interesting. The Ninth Circuit seems to say that the beneficial owner of a copyright is the "title" owner, and that the only way to transfer the title is by divesting yourself of all interest in the copyright (both the ability to exploit the rights, and any financial interest in their exploitation).

    The point of the quote was that a license is less than an assignment. The court wasn't speaking of beneficial owners specifically. But yes, transferring title means divesting yourself of ownership.

    Yep. It includes assignment. 17 USC 201 is very, very clear on this point: In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination [...] All transfers in 201 are applicable. The only exception is a "work made for hire" (and a work transferred by will - I'll admit I forgot to mention that one, but it's not relevant here). I'm really surprised you didn't know this. That's why artists were so up in arms when Mitch Glazier (then a congressional staffer, now VP of the RIAA) inserted language into an unrelated bill, without congressional approval, categorizing every "sound recording" as a "work for hire." It would rob artists of the right to terminate their contracts (which "assigned" the rights to sound recordings).

    I said nope because you missed my entire point. You're missing it still.

    Nope. The whole point of that case is that any transfer of ownership under 201 does not automatically transfer resale rights. The court was quite clear on this point: ***
    If you believe that the transfer of a "title" always means the transfer of resale rights, then nothing in 201 automatically transfers "the title." THAT was the point of Nike.


    The point was that an exclusive license is less than full ownership. The licensor holds title. I don't believe that title always means transfer of resale rights. Never said that. I was trying to get you to understand that an exclusive licensee doesn't have full ownership as you were claiming.

    I'm just repeating myself at this point, Karl. And you have yet to prove that a copyright holder who grants exclusive licenses for all 5 rights has divested his title. That was your claim and you have yet to back it up.

     

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    FUDbuster (profile), Apr 30th, 2011 @ 6:20pm

    Re: Re: Re: Re: Re:

    I should also point out one thing. In copyright law, judges generally rule, not because of the specific language in the contract, but because of its intent. Ladas & Perry put it this way: "the overriding factor is the mutual intent of the parties to transfer an ownership interest in the copyright." See e.g. Armento v. Laser Image.

    Absolutely. We agree on this. It doesn't matter what you call it, it matters what is really happening in the agreement.

    I don't think anyone in their right mind would view the Agreement here as an intent to transfer ownership. They would see it as it is: an attempt to sell lawsuits.

    I disagree. Ownership was clearly intended to be transferred. Righthaven obviously believes it has ownership. Hence they registered the copyrights listing themselves as owner, and they filed (and continue to file) lawsuits claiming the same. I believe that Righthaven honestly believes that they hold title.

    The real question is whether, when you look at the bigger picture of who has what right and who has what duty, it really is an assignment as they believe it to be. Thinking along that line is where the debate is really at. We've been talking about generalities and about Righthaven/Stephens Media specifically. I believe that your general notions of things is flawed, but in the end, Righthaven may not actually hold title. Not for the reasons you've been stating in general, but for other reasons. Specifically, your idea that a copyright holder who grants an exclusive license for all of the 106 rights necessarily divests himself of title is flawed. That's not how it works. But when you look at all of the other provisions Righthaven and Stephens Media agreed to, the line isn't as clear. It's a gray area. Make sense?

     

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    FUDbuster (profile), Apr 30th, 2011 @ 6:29pm

    Re: From an actual lawyer

    LOL! OK, well, without talking to your friend directly, and without knowing what of my arguments he's heard and what he hasn't, it's hard to have a conversation with him through you. I'd be happy to chat with him if he stops by.

    I don't think Stephens Media is the beneficial owner. I do think that an exclusive licensee has an ownership interest and is the copyright owner under the Act. But as the caselaw makes clear, an exclusive license is not total ownership. The licensor retains title ownership. The reason I've been using "title owner" is to avoid the confusion that arises the Act as I've explained a few times already, and as the Second Circuit explained in the part I quoted above. The fact is, if the copyright owner grants an exclusive license (but not the associated accrued right to sue), that licensor still has standing to sue for infringements that happened before the exclusive license was granted.

    If he'd like to chat, send him on over. It would be more productive to talk with him directly.

     

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    Karl (profile), Apr 30th, 2011 @ 7:12pm

    Re: Re: Re: Re: Re: Re:

    As I've indicated over and over and over again, ownership of the 106 rights transferred to Righthaven.

    I said "transferring the rights." To be clear:

    It is up to you to prove you can transfer "ownership" of the rights in 106, without transferring any legal ability to exploit those rights, nor any beneficial interest in how those rights are exploited (e.g. royalties).

    That's the question. Just repeating "they're the owner" isn't an answer. Saying "because they can" isn't an answer.

    Specifically, your idea that a copyright holder who grants an exclusive license for all of the 106 rights necessarily divests himself of title is flawed.

    I was pretty clear on this, I thought. What has to be divested is the right "'to do and to authorize' any of the activities specified in the five numbered clauses." As long as you still have the legal ability "to do [or] to authorize" any of those rights, you haven't divested yourself of ownership. But once you no longer have any legal ability to exploit any of the rights in 106, you are no longer a "legal owner." However, if you receive compensation for the exploitation of those rights (e.g. royalties), you are still a "beneficial owner."

    If you have no legal authority to exploit any of the 106 rights at all, and you are not a "beneficial owner," then you are not an "owner." Not for the purpose of bringing an infringement suit, at the very least.

    None of the case law you quoted contradicts this (since none of those cases deal with authors who have divested themselves of all 106 rights).

    None of the case law you quoted even contemplates a case where "ownership" was transferred, without transferring the legal ability to exercise any of the rights in 106.

    Furthermore, I asked a friend of mine who is a copyright lawyer, and he agreed with my interpretation. I already posted his response. As far as I'm concerned, case closed.

     

    reply to this | link to this | view in thread ]

  216.  
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    Karl (profile), Apr 30th, 2011 @ 7:19pm

    Re: Re: Re: Re: Re: Re:

    Ownership was clearly intended to be transferred.

    The question is whether the intent is to transfer the rights in 106. I think, clearly, that is not the case.

     

    reply to this | link to this | view in thread ]

  217.  
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    FUDbuster (profile), Apr 30th, 2011 @ 7:21pm

    Re: Re: Re: Re: Re: Re: Re:

    Alright, Karl. I'm not going to repeat myself any longer. Case closed indeed. Have a good weekend. If your friend stops by, I'm happy to chat with him...

     

    reply to this | link to this | view in thread ]

  218.  
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    FUDbuster (profile), May 1st, 2011 @ 9:09am

    Re: Re: Re: Re: Re: Re: Re:

    Furthermore, I asked a friend of mine who is a copyright lawyer, and he agreed with my interpretation. I already posted his response. As far as I'm concerned, case closed.

    I just have to add why this cracks me up no end. You've demonstrated over and over again, not only in this thread, but in every other thread we've ever had a debate about substantive copyright law, that you don't even grasp the fundamentals and you misread practically everything you read. Time and again you point to something saying that it means X, when really, it means Y. There exists no caselaw that you can't read and come away with exactly 180 degrees the wrong understanding. That you are so consistently wrong is a marvel unto itself.

    Of course you think you've got it right. Of course you think your lawyer friend is backing you up. I can only imagine how many errors you've made in reaching this conclusion. What's simply amazing to me is that despite your errors being pointed out to you time and again, you just trudge along like you've got it all figured out. A smart person would realize that hey, maybe, just maybe, I don't quite have a grasp of what I speak. Not you. You speak with the authority of an expert while displaying the understanding of a noob. As I've said before, this makes you a fool.

    I won't be debating you any more, Karl. Not because you're so smart and I can't keep up, but rather, because debating you is like talking to a brick wall. You rarely concede that you've got something wrong, despite the fact that you are wrong on so many things at so fundamentally a deep level. It's happened in this very thread. I've pointed out error after error that you've made with regard to the most basic things. And what do you do? You go on pretending like you've got the difficult parts all figured out. If you don't grasp the basics, why in the world do you think you've got the hard parts?

    What's the point of me trying to explain anything to you? I've tried and tried, my friend, for about a year to get through to you, and it's always been the same result. More fruitless efforts from me would at this point make me the fool. Good luck to you and good luck with your "noise music." That genre seems so befitting of you. Your music, like your legal analysis, are the definition of cacophony.

    You quite simply are one of the biggest fools that I've ever had the displeasure of meeting in my 20+ years on the internet. Like I said before, I was happy to teach you some things, but I can't teach you since you don't want to learn. I know you think there's nothing I can teach you, but that disregards the fact that I have systematically for the past year done nothing but point out flaw after flaw in your legal "analysis." You can pretend all you want that isn't what happened, but I know better. Don't take it too hard, though. Mike thinks your the bees knees. Your his go-to guy for hard hitting legal analysis.

    Ah, techdirt. Normally one would have to be in maximum security lockup to meet such wonderful creatures.

    Go ahead and get the last word. I won't even bother reading it. I wash my hands of your idiocy.

     

    reply to this | link to this | view in thread ]

  219.  
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    Mike Masnick (profile), May 1st, 2011 @ 11:16pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Okay. This post is so unbelievable, that I had to jump back in.

    I just have to add why this cracks me up no end. You've demonstrated over and over again, not only in this thread, but in every other thread we've ever had a debate about substantive copyright law, that you don't even grasp the fundamentals and you misread practically everything you read. Time and again you point to something saying that it means X, when really, it means Y. There exists no caselaw that you can't read and come away with exactly 180 degrees the wrong understanding. That you are so consistently wrong is a marvel unto itself.

    Nearly everything in that sentence seems to apply to you, not Karl. In fact, in this very thread, Karl has demonstrated repeatedly that you would make statement X, insisting that it says Y, and he would point out that your interpretation was wrong. His friend, the copyright lawyer agrees. I've also run this by a copyright lawyer, who told me that he can't fathom how anyone is arguing seriously from your position.

    The key point, as I raised way up earlier, is that copyright is not about "ownership." It's about who holds certain rights. There are only the key rights listed in Section 106. If you don't hold those, you don't hold anything, least of all some sort of mythological "title."

    Of course you think you've got it right. Of course you think your lawyer friend is backing you up. I can only imagine how many errors you've made in reaching this conclusion. What's simply amazing to me is that despite your errors being pointed out to you time and again, you just trudge along like you've got it all figured out. A smart person would realize that hey, maybe, just maybe, I don't quite have a grasp of what I speak. Not you. You speak with the authority of an expert while displaying the understanding of a noob. As I've said before, this makes you a fool.


    Again, nearly this entire paragraph can much more be applied to you than to Karl. He actually had a real copyright lawyer review this stuff. So did I. In both cases, they agree with us. It seems like perhaps it's *you* who should consider that you might not have a grasp of this subject.

    I won't be debating you any more, Karl. Not because you're so smart and I can't keep up, but rather, because debating you is like talking to a brick wall. You rarely concede that you've got something wrong, despite the fact that you are wrong on so many things at so fundamentally a deep level. It's happened in this very thread. I've pointed out error after error that you've made with regard to the most basic things. And what do you do? You go on pretending like you've got the difficult parts all figured out. If you don't grasp the basics, why in the world do you think you've got the hard parts?

    Again, this seems to apply more to you than to Karl. Karl has conceded points many times. You have almost never conceded any points. Karl has pointed out error after error after error that you've made in your analysis of this thread. And you go on pretending that you've got the difficult parts all figured out.

    What's the point of me trying to explain anything to you? I've tried and tried, my friend, for about a year to get through to you, and it's always been the same result. More fruitless efforts from me would at this point make me the fool. Good luck to you and good luck with your "noise music." That genre seems so befitting of you. Your music, like your legal analysis, are the definition of cacophony.

    Again, this applies much more to you (oh so much more) than to Karl.

    You quite simply are one of the biggest fools that I've ever had the displeasure of meeting in my 20+ years on the internet. Like I said before, I was happy to teach you some things, but I can't teach you since you don't want to learn. I know you think there's nothing I can teach you, but that disregards the fact that I have systematically for the past year done nothing but point out flaw after flaw in your legal "analysis." You can pretend all you want that isn't what happened, but I know better. Don't take it too hard, though. Mike thinks your the bees knees. Your his go-to guy for hard hitting legal analysis.

    Again. Same thing I've said above. And, one other point: Karl is not my "go-to" guy for hard hitting legal analysis, though I think he's done a bang up job. I've pointed you to the many lawyers I know in the field before, including Bill Patry, Eric Goldman, Jamie Boyle, Mark Lemley, Andrew Bridges and others. Those are the guys I go to for my hard hitting legal analysis.

    Ah, techdirt. Normally one would have to be in maximum security lockup to meet such wonderful creatures.


    Please. That's totally uncalled for. You really should apologize. People disagree with you, and they've explained why you're wrong. To call them criminals, is beyond sore losing. You really ought to grow up a little.

     

    reply to this | link to this | view in thread ]


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