Unsealed Righthaven Agreement Has Other Judges Questioning Legitimacy Of Righthaven's Lawsuits
from the and-here-we-go... dept
While we still have a lone holdout in our comments who thinks that Righthaven’s lawsuits are legit, despite the recently revealed evidence that the company holds none of the rights available under the Copyright Act, it appears that other judges dealing with Righthaven are paying attention. In a separate case from the one in which the initial agreement between Stephens Media and Righthaven was revealed, a different judge is now using that document to question Righthaven’s standing to bring a lawsuit in the first place. This time, it’s Judge James Mahan, who was the judge who recently slammed Righthaven in another lawsuit for going against the purpose of the Copyright Act, and declaring that a non-profit’s use of an entire Stephens Media article was fair use.
This latest case involves a blog, Pahrump Life, which was sued by Righthaven for posting another Stephens Media/LVRJ article, but Judge Mahan is questioning whether or not the newly revealed agreement between the companies means Righthaven even has the standing to sue.
The contract, unsealed earlier this month at the request of the Electronic Frontier Foundation, provides that Stephens Media retains the ability to license the articles, while Righthaven only has the right to bring infringement cases. The potential problem with that arrangement is that Righthaven can’t argue that it’s being economically harmed by any infringement, because it lacks the ability to profit from the news articles. Litigants typically must be able to show some sort of economic damage as a prerequisite to suing.
The judge told Righthaven to make its case for why it should be allowed to bring the lawsuit, so now we’ll get to see how Righthaven tries to tapdance around this issue.
Filed Under: copyright
Companies: righthaven, stephens media
Comments on “Unsealed Righthaven Agreement Has Other Judges Questioning Legitimacy Of Righthaven's Lawsuits”
So who is this lone holdout?
Seriously?
Re: So who is this lone holdout?
Don’t worry. He/she/it will make themselves known soon enough.
Re: Re: So who is this lone holdout?
Oh… FUDbuster. Like of reminds me of Chris Devonshire Ellis in P.R. China, thankfully) without the thugist overtones, but with the overwhelming bluster:
http://foarp.blogspot.com/2011/03/chris-devonshire-ellis-thug-and-liar.html
While we still have a lone holdout in our comments who thinks that Righthaven’s lawsuits are legit, despite the recently revealed evidence that the company holds none of the rights available under the Copyright Act . . . .
That’s not exactly my position. I think it’s a gray area, and I can see it going either way. This post summarizes my thoughts succinctly: http://www.techdirt.com/articles/20110423/01033814013/another-judge-slams-righthaven-chilling-effects-that-do-nothing-to-advance-copyright-acts-purpose.shtml#c1281
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http://www.law.cornell.edu/uscode/17/504.html
In remedies I only see “Copyright Holder may”, this isn’t something you can just sign a Power of Attorney to I don’t believe (I’m a computer repair shop owner in Marshall Texas, not a copyright lawyer).
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To make it clear, copyright allows for the settling of the damages against the rights they hold.
Righthaven holds the “rights” to litigate. Therefore the only way someone could infringe upon Righthaven’s rights, is if they litigated in their place.
It’s a legal paradox at worst and a sham at best.
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Sounds like the FUDbuster has been busted; thanks for clearing that up for us.
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Guess he’s going to have to change his name again…
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The right to sue that Righthaven is exercising is the accrued right to sue that they were assigned (along with the copyrights) by Stephens Media. Righthaven is thus standing in the shoes of Stephens Media for the purposes of the lawsuits.
Righthaven holds more than just the right to sue. They are the legal owner of the copyrights. Yes, they granted an exclusive license of those copyrights, but such licensors still remain the legal owners of the copyrights they’ve licensed. An exclusive licensee does not get full ownership of the thing he’s licensed.
It’s like if you lease a house. Your lessor still owns the house even though you’ve leased it.
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Let’s say you were going to file for bankruptcy because you had millions in debt that you didn’t want to pay. To avoid losing your 7 vacation homes to your creditors, you sell all 7 of them to me for $1, then we sign a contract that states that, while I’m the “owner,” I basically can’t sell, rent, visit, use, etc. the homes without your consent, and at any time if you choose I have to sell them back to you for $1. Would that agreement hold up in court when the people you owe millions to come to collect?
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That sale for a dollar would be a simulation and an absolute nullity, and the creditors could bring suit to the have the sale rescinded and declared null.
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But I think you’re missing the point. AC, I think, gets to the heart of the judge’s concern: just because you can sign away the rights such as in the case, you can’t sign away the ability to be economically injured.
So, while Righthaven may have all of the appropriate rights, if they are not in the business of selling and producing content, they cannot assert economic harm.
Re: Re: Re:5 Re:
Economic injury would be applicable to the fair use and damages analysis, sure, but the issue we’re talking about here is whether Righthaven even has standing to bring the suits in the first place.
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I understand–my reading is that the judge is not questioning standing by rights, but questioning economic harm, which would undermine their standing or maybe more accurately their ability to ultimately prevail on the merits of the case.
Re: Re: Re:4 Re:
That sale for a dollar would be a simulation and an absolute nullity . . . .
Actually, on second thought, that would be a relative nullity, not an absolute nullity. Still, the sale could be rescinded.
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It’s like if you lease a house. Your lessor still owns the house even though you’ve leased it.
Wrong.
It is not like that at all.
This is like if I owned a house, went and found some lawyer, and wrote on a napkin that he owns the house. But in order to give him the napkin, I can live in it for free, do whatever I want with it, and can take back the napkin whenever I want. But the lawyer can go and sue anyone who takes a picture of the house (if I don’t disagree) and anything he gets out of them I get half.
Actually, bad analogy. A napkin has some worth, if minimal. I can wipe my hands off after lunch with a napkin. “IP rights” aren’t even good for wiping your ass.
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But you can transfer ownership of your house to another person while reserving the right of use, right of redemption, right to control who is sued, and the right to half of the recovery. Why couldn’t two parties agree to that? What makes it unenforceable?
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That is simple. Because their intent is to game the system and evade the strictures of the Copyright Act, which does not allow for the transfer of the right to sue by itself.
Why is this so hard for your to comprehend? Its is all about intent.
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No you could not, if you transfer ownership of your house to another person..they literally own it and you do not have the rights to use/etc.
You seem to be confused with the concept of possession or occupancy of a property with ownership, just because I lease my house does not mean I own the house or can make any changes to it. Further I can not sue someone over property rights, such as a neighbor attempting to build a fence 6 inches closer to the house I am leasing, because that right rests with the owner.
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No you could not, if you transfer ownership of your house to another person..they literally own it and you do not have the rights to use/etc.
The owner can allow you the right of use. That’s what we’re talking about. Happens all the time. I recently was granted the right to use a house, subject to a resolutory condition (someone’s death).
I’m not at all confused about ownership and possession. Don’t worry about that.
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Please explain how the right of use, without ownership, grants anyone the right to sue? Please include examples of case law since that seems your requirement for everyone else.
No, we are truly talking about the right to sue not of use. This is the only right that Righthaven was granted, not to use the item in question to make money.
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I never said the grantee of the right of use has the right to sue. So why should I prove that? The grantee of such a right does have certain rights that may be enforced, but that’s not the issue here, as you noted. You do realize that we were talking analogously, though, right?
Righthaven was transferred ownership of the copyright. And then, acting as owner, they granted an exclusive license to Stephens Media. Granting an exclusive license like that is something that only an owner could do.
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Are you sure that Righthaven was actually transferred ownership of the copyright, because from the contract I read they did not. Perhaps you can cite in the contract where they were given the entire copyright?
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Check out the Strategic Alliance Agreement linked below. Section 7.1 plus the individual assignments, referenced in Exhibit 1, clearly (to me) gives ownership of the copyrights to Righthaven.
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You still haven’t substantiated your claims.
Re: Re: Re:4 Re:
But you can transfer ownership of your house to another person while reserving the right of use, right of redemption, right to control who is sued, and the right to half of the recovery. Why couldn’t two parties agree to that? What makes it unenforceable
The problem here is that you still think of copyright as property.
It’s not. It’s merely the bundle of rights in 106. If you don’t have those, you don’t have anything.
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The problem here is that you still think of copyright as property.
It’s called intellectual property for a reason. As much as that kills you, it is a fact that it operates as property.
It’s not. It’s merely the bundle of rights in 106. If you don’t have those, you don’t have anything.
Nonsense. A person who grants an exclusive license does not give complete ownership to their licensee. That makes no sense, and I’ve already proved this in other threads by quoting circuit courts and treatises. The licensor still owns the thing he has licensed.
Do you really think exclusive licensees have complete ownership of the thing they’ve licensed? That’s silly. That’s not what a license is.
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Is it property if it’s not visible without aid? IF that’s the only reason that is it property (that it is visible without aid) then I have an industry to sell you. It comes with an added Landmark*
Caution: may not come with an actual Landmark – the Intellectual Landmark has been copyrighted.
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Really? Please cite the section of copyright law in which it’s referred to as “property.”
Just because a group of propagandists claim something does not make it so, any more than copyright infringement actually occurs on the high seas by scruffy guys with beards and peg legs.
No, it absolutely does not. Mike is entirely correct, and you are making baseless claims. If you want to persist in this claim, cite the section of copyright law that says a copyright is to be treated as a property right.
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Why do you think it’s called intellectual property? It acts like property because it can be bought and sold. It can be owned and licensed. Ownership can be dismembered. It can be alienated and encumbered. Etc. Etc.
Whether or not the Copyright Act refers to it as “property” is irrelevant. It acts like property because it is property.
Property itself is just a bundle of rights. To say that copyright is not property is just silly.
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Copyright is something abstract, it is NOT a property. Intellectual property on the other hand is covered by copyright, amongst other things.
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I already explained why – because propagandists want it so.
No, it doesn’t – in any way, shape or form. Property is *by definition* exclusive. Only one person at a time can hold it. Property can be possessed. Copyright cannot be possessed – it is a legal manifestation of imagination.
It most certainly *CANNOT*. All these things are figments of your imagination, and the fact that you assert these fictions as if they were true shows that Mike is absolutely correct.
Copyright law is by definition what defines copyright. If copyright law does not say it’s property, then by definition it is not property.
Ah, a tautology – how amusing.
No, to claim that it *is* property is just silly. As I said, copyright is defined by copyright law. If copyright law does not call it property, then it is not. Unless you can point to a copyright law that says otherwise, you lose.
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I already explained why – because propagandists want it so.
You sound like a conspiracy theorist. It’s not a conspiracy. It’s a simple fact. When you realize that property simply means ownership rights, it all makes sense.
No, it doesn’t – in any way, shape or form. Property is *by definition* exclusive. Only one person at a time can hold it. Property can be possessed. Copyright cannot be possessed – it is a legal manifestation of imagination.
Property can be owned by more than one person at a time. Have you never heard of co-owners? Ownership between two or more owners can be joint or separate. This is basic property law 101 stuff.
Yes, property can be possessed. But the possessor is not necessarily the owner. If I loan you my car, you possess it, but you do not own it. You appear not to understand basics like the difference between possession and ownership. Of course these are legal constructs. This is so with all property laws, like copyright.
It most certainly *CANNOT*. All these things are figments of your imagination, and the fact that you assert these fictions as if they were true shows that Mike is absolutely correct.
Wow, you are out there. Property can’t be owned? That makes no sense.
Copyright law is by definition what defines copyright. If copyright law does not say it’s property, then by definition it is not property.
That’s not how property works. You don’t have to define something as property for it to be property. It just is property, by definition, because it is a thing susceptible of ownership.
Ah, a tautology – how amusing.
Copyrights acts like property because copyrights are property. It’s that simple. You need to understand that property just means ownership rights.
No, to claim that it *is* property is just silly. As I said, copyright is defined by copyright law. If copyright law does not call it property, then it is not. Unless you can point to a copyright law that says otherwise, you lose.
Sorry, but you lose because it doesn’t work that way. Copyrights are intangible property. It’s axiomatic and by definition. I’m speaking legally of course because we’re talking about the legal meanings of the words.
This need to argue that copyrights aren’t property is quite amusing. Copyrights are property susceptible of ownership, this much is perfectly clear. Yes, ownership and rights are constructs of man. So what?
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Explain to me this: How is it NOT property? Looking to Black’s Law Dictionary:
That sums it up nicely. And it points out the complete fallacy and lack of understanding on Mike’s part about this. He claims that copyright isn’t property because copyright is just a bundle of rights. However, property is a bundle of rights. Therefore, the proper conclusion is that copyright is property BECAUSE copyright is a bundle of rights.
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Awesome, oh, wait… except for the part about how the definition is clearly referring to physical things and the rights around ownership of those things (not the explicit example).
So, this shows your complete lack of understanding of how scarcity (or lack thereof) changes everything.
Re: Re: Re:9 Re:
Nope. First of all, copyright is a “chattel,” and it is a “determinate thing.” Chattel just means a “movable,” in continental-law speak. Rights are movables.
Secondly, property can be divided into one of two types: tangible and intangible. Both types are still property. From Black’s:
Intellectual property is just a type of intangible property. From Black’s:
Scarcity has nothing to do with it. Copyright is intangible property. Copyright is property. Property is rights. Copyrights are rights. There’s really no debate on this point. The law doesn’t limit the meaning of property to only tangible things.
Re: Re: Re:10 Enough With The FUD, Buster!
First of all, copyright is a “chattel,” and it is a “determinate thing.”
And yet it is not ?property?. Nowhere in copyright law is it referred to as ?property?. The phrase ?intellectual property? is not to be found in any law. Ergo, it is a term with no meaning in law. QED.
Re: Re: Re:11 Enough With The FUD, Buster!
And yet it is not ?property?. Nowhere in copyright law is it referred to as ?property?. The phrase ?intellectual property? is not to be found in any law. Ergo, it is a term with no meaning in law. QED.
That makes no sense. If there exist no law stating that hairbrushes are property, are hairbrushes then not property?
It’s not property because some statute defines it as property. Property just means a bundle of rights. Copyright is a bundle of rights. It’s really that simple.
You guys have a strange idea of what the word property means.
Re: Re: Re:11 Enough With The FUD, Buster!
From Black’s:
Recall that property is defined as “the right of ownership.” If you realize that property just means rights, this makes sense. Copyright, like any other property, is just a bundle of rights.
Re: Re: Re:2 Re:
http://randazza.files.wordpress.com/2011/02/righthaven-strategic-agreement.pdf
Is the agreement RightHaven has with their clients. I’d like to direct you to Section 7.2.
Again you have an entity that only holds the “right to sue”. And under current copyright law they can only request damages against THEIR rights (the right to sue). Even if they were granted an exclusive right to the copyright they would only be able to claim damages against infringement that occurs after they are granted their exclusive right. Since their business model is to be assigned “rights” after infringement occurs and a with a layman reading of the link I listed above: It appears they will be out any sort of damages thusfar, and their actual rights is a legal paradox (I retain the right to sue, therefore I can only claim damages against other people that sue for you).
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If a law office purchases the rights to sue for a percentage of the “recovery”, isn’t this THE definition of Champerty and maintenance?
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I was thinking the champerty argument had merit until I started reading up on the champerty laws in Nevada. Then I wasn’t so sure.
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Nevada just happens to be one of the states that still has such a law, interesting. However it probably goes back to the “Does an assignment of copyright actually take place” if not than RightHaven would have no legitimate interest, if so than it’s a harder case. It’s more an afterthought than anything else really.
Re: Re: Re:3 Re:
You’re looking at only one provision, and not the whole agreement. Righthaven was also assigned ownership of the copyrights in addition to the right to sue. Righthaven then, as owner, granted an exclusive license to Stephens Media.
Righthaven still (1) is legal owner of the copyrights, and (2) holds the accreted right to sue for infringements that happened BEFORE they became legal owner of the copyrights. For standing purposes, this is what they need. As transferee, Righthaven is standing in the shoes of their transferor, Stephens Media.
My understanding is that Righthaven can ONLY sue for infringement that occurred prior to them obtaining ownership of the copyrights. Since they’ve granted Stephens Media an exclusive license, only Stephens Media would have standing for subsequent infringements.
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No, they are not. It spells it out right there. And as I said later on in this conversation in Silvers v. Sony Pictures Entertainment, and Sybersound, they have no claim.
Re: Re: Re:5 Re:
Umm. That’s one provision, as I noted. You have to look at the whole contract, plus the individual assignments. I’ve posted both of those if you want to dig through my comments to find them. I haven’t the time today.
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Okay, let’s play a game.
What rights do they have? Please enumerate which ones you believe that contract grants them. Bonus points if you cite paragraphs and sections.
Re: Re: Re:4 Re:
We disagree on the idea of ownership. Righthaven does not have the right to make binding decisions regarding the copyright; the “original” (that is, real) owners of the copyright can override that decision. Righthaven does not make royalty money off of the copyright; the “original” (again, real) owners do. Righthaven cannot sell or transfer the copyright, or even prevent it being taken back at any time. Nothing they have meets the definition of ownership.
It’s not like buying a house. It’s more like leasing a baseball batt to a thug so they can beat my enemies with it.
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It’s more like leasing a baseball batt to a thug so they can beat my enemies with it.
Of all the analogies that get thrown around on this topic, I think this is my favorite so far. 😉
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It’s like if you lease a house. Your lessor still owns the house even though you’ve leased it.
Okay, I know I shouldn’t be responding to you, but this is just too much to pass up.
First of all, comparing a copyright to a house is a crappy analogy (the rights associated with ownership are very different). But for the moment, let’s go with it.
A “lease” is not akin to an exclusive license. A “lease” is akin to a non-exclusive license. A better analogy for an “exclusive license” would be buying a condominium. Yes, you can buy a condo without buying the entire building, but that doesn’t mean you don’t own the condo.
Further complicating matters is that, in the context of this analogy, a “building” is defined solely as “a collection of condominiums.” (It’s even more complicated than that, because ownership of a copyright can effectively be divided infinitely, meaning you could transfer ownership even of a single bedroom in a condo.)
What Righthaven is doing is saying, “Hey, Mr. Building Owner, you say we’re the owner of the building, but you’ll retain ownership of every condo. All we ask in return is that you let us kick out the current tenants and keep all their stuff.” Even if that somehow worked with “real property,” it wouldn’t work with “copyright property.”
Complicating matters even further is the fact that if you’re the original owner of a building, you can take ownership of that building back after 35 years. And the fact that “ownership” of that building was created for the sole purpose of public use of that building.
Like I said, it’s a crappy analogy.
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First of all, comparing a copyright to a house is a crappy analogy
Fair is fair, though. If we were talking about patents, you’d be entirely correct. Exclusive licensees of patents are not the “patent owner” in any sense of the term.
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I’ve got to be honest, reading your comments via the link makes me think you could argue that way for pretty much anything. There are some people that see “gray” in everything–which is both a boon and a curse.
I understand you focus on just the legal arguments, but that is a clinical and ultimately insufficient way to analyze legal disputes. Ethics, congressional intent, etc. are all very much part of the legal system and key elements in determining outcomes.
So effectively, your prior response is, “outcome uncertain” rather than an insightful analysis of the specific issues at hand and that is why you aren’t getting any love from the audience here.
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I think the people who are looking at the parts and saying, “You can’t do that!” are getting it wrong. The problem isn’t in the individual parts of the agreement. The problem is when you look at the whole. I just don’t think there’s a clear cut answer either way. I don’t care if I “get any love.” I’m just expressing my own opinions based on my own analysis and research. I’ve read about 30 court opinions and 30 law journal articles on these issues. Some things support Righthaven, and some things don’t. All I’m saying is that I think it’s a gray area. Notice how those who are saying that the answer is clear can’t point you to any caselaw that this situation clearly falls into. I think the reason is because there simply is no such caselaw. I did find one analogous case dealing with patent law, and that case, if applicable, would be bad for Righthaven. I’ve also found a few cases dealing with champerty that might be applicable and bad for Righthaven. But then again, looking at the champerty laws in Nevada, it’s not so clear that those cases would apply. I dunno what the answer is, and I’m suspicious of anyone who claims that they do know for certain which way this will go. That’s my point. If someone can point me to something that makes the issue crystal clear, I’ll gladly agree that it is so. So far, no one’s done this. Righthaven will file their briefs showing cause soon enough, and then we’ll get the reply briefs. After that, we’ll see what the courts say. I’m excited to read it all.
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That’s more clear, thanks. I still think it comes down to whether or not there can be a transfer of “harm” which is a nuance that I’m really impressed to see considered here.
It would be fantastic if that was a consideration for patent aggregators as well–can’t sue unless you’re in the space competing.
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Well these lawsuitesn could at least get some case law to force people to understand that:
http://www.law.cornell.edu/uscode/17/504.html
Covers the actual owner that has been harmed by the “infringement”.
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The owner that was harmed by the infringement was Stephens Media. This gave Stephens Media the right to sue. Stephens Media then granted that right to sue plus ownership of all the copyrights to Righthaven. The right to sue is transferable in this way. When Righthaven sues, they are suing through a legal fiction that they are standing in the shoes of Stephens Media.
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It would be true if Righthaven was a law firm representing Stephens Media, however that is not the case here. In law you have to sue on how you were damaged, not how the past owner was damaged.
Lets use your specious Home argument from earlier. If someone owns a house and the neighbor chops down the tree in the front yard, then the owner sells the house to me (without any limiting provisions to make it simple) I do not have any right to sue the neighbor over the cut down tree because it did not happen to me.
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Litigious rights are generally transferable. If the person who sold you the house also gave you the right to sue the neighbor for the tree, then you would “step into his shoes” through the magic of legal fiction.
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Except you can’t in Copyright unless you hold ONE of the 17 U.S.C. ? 106 rights, and even then it’s written in law that you can only bring action based upon infringement of one of the rights you hold. This is one of the reasons you can’t treat Copyright like “property” it has specific laws governing it that differ from usual property. Yes you can call it property, that’s fine and in most legal cases you will be fine, except copyright has a few nuances such as this that make it where you can’t treat it like standard property.
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A licensor is a copyright owner under the Act.
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Pardon me being a layman let us clarify terms for a moment.
licensor: Someone that can license, or someone that that is licensed to?
The contract quite clearly dictates that Righthaven cannot extend a license to anyone else. So they fail that.
They also are quite clearly not licensed any of 106 rights, and since those are the “bundle of rights” (and only valid rights of copyright, according to copyright law, and various case law) I don’t see how they muster this either.
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A licensor is one who grants a license to another. The party he grants the license to is the licensee.
Righthaven granted a license to Stephens Media. Since it was exclusive, that means Righthaven may not also grant a license of that same right to another party.
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Silvers v. Sony Pictures Entertainment, 402 F.3d 881 (2005), says that you need to assign a specific right under 17 U.S.C. ? 106 ? and not the bare right to sue ? for a copyright assignment to be valid.
More specifically it says:
Then you always have the Sybersound ruling.
“You have to have the exclusive right to the copyright to be able to sue”
I believe that is enough caselaw to be satisfactory, if not I can look some more but I’ll stop here.
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Silvers says that you can’t only assign the right to sue. Here, Righthaven was assigned all of the copyrights as well. Righthaven then granted an exclusive license to Stephens Media.
Look at the entire Stategic Alliance Agreement and the individual assignments. They specifically say that Righthaven gets ownership of the copyrights.
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And then later it’s restricted in 7.3. I’m going to ask you again, list the rights they are granted and where it is shown.
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Silvers says that you can’t only assign the right to sue. Here, Righthaven was assigned all of the copyrights as well. Righthaven then granted an exclusive license to Stephens Media.
So, again, we have the situation where caselaw says you can’t do X. So Stephens does Y, and Righthaven does Z. Y + Z = X.
Let’s try something else. Since Righthaven is the owner, then I’m sure they would have no difficulty whatsoever in showing specific and explicit proof of where Righthaven has suffered economic loss. They could show where they tried to license the work and no one would buy… wait, Stephens has all the exclusive licenses. They could show where their attempts to exploit the work went poorly… wait, they don’t exploit it, Stephens does.
And that leads us to…
Look at the entire Stategic Alliance Agreement and the individual assignments. They specifically say that Righthaven gets ownership of the copyrights.
Just because something is written on pretty paper with fancy letters doesn’t change what is true. I imagine that’s kinda scary to a lawyer. Tough. All the contracts that Righthaven and Stephens Media can dream up won’t help them if they are founded on a fraud. Stephens is the real owner of the (worthless) rights, not Righthaven.
Righthaven will most likely, if their history is any indicator, insult the judge, the EFF, and the blog they are suing in their response.
Wish I could stay longer and chat about this, but duty calls. Have a great afternoon, everyone.
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For now I shall summarize our debate.
You’ve made the claim they hold full exclusive rights to the copyright and thus have full rights to sue.
I’ve linked the strategic agreement and cited they they simply the right to recovery (right to sue).
You claimed otherwise, without supporting your argument.
I asked you to support your argument, you failed to do so by simply stating “you have to read the entire thing”. Sorry that’s not a citation.
You later claimed while holding the stance that they hold full exclusive rights that your detractors had not listed caselaw.
Fair enough, I listed case law maintaining the prevailing argument that they do not hold exclusive rights.
You ignored the fact you have failed to support your argument that they hold exclusive rights, and concluded that the case law does not apply.
Upon your return if you wish to continue this discussion please support your argument that they hold exclusive rights. Otherwise I consider it a forfeit on your part.
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here I shall even make it easy for you.
Please show which right under 17 U.S.C. ? 106, Righthaven currently holds.
Your reference for this is the contract
If you cannot than Silvers v. Sony Pictures Entertainment, 402 F.3d 881 (2005) applies.
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Don’t hold your breath. He has spread his FUD and has moved on to another thread.
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Don’t hold your breath. He has spread his FUD and has moved on to another thread.
LOL! Give me a break. I had a job interview earlier today for a summer position, and now I’m working on a big assignment that is due tomorrow. I’d love to answer each and every question in this thread, but I’m simply pressed for time today. Much of these questions I’ve addressed already. I’ve gone into great detail about exactly what my arguments are. Look through my posting history and you can read it for yourself.
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Righthaven is the owner of all of those rights under that agreement (Section 7.1, if memory serves) and the individual assignments (the text of which is attached to that agreement as Exhibit 1, I believe). The agreement is that Stephens Media assigns the copyrights to Righthaven, and then Righthaven grants Stephens Media an exclusive license to the copyrights.
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Exhibit 1 is blank, and Righthaven has yet to produce a document like Exhibit 1 that is actually filled out. No copyright assignment has taken place or it has and they can provide no documents save the strategic agreement (See Docket 79 page 12) The date they should have had it in by was January 18th of this year. But that doesn’t matter as again I say righthaven holds no 106 rights.
Now lets step through the agreement shall we?
Now if we stopped there and ignored Section 7 you would have your case, and I’d tip my had to you, the Bold portions agree with you. However in italics above modifies the entire thing so lets stop there and go straight to Section 7…
Okay, nothing really there, just a bunch of administrative dealings that say how it is done. That the entire copyright is assigned to Righthaven, so far, it appears you are correct.
Woah woah woah, big monkey wrench. If it “retains” rights, it’s not a copyright assignment. Now if it was simply licensed those rights, fine. However it goes further, RightHaven is to not have any of those rights (which the crux of my argument and yours rest upon, which 106 rights does righthaven actually have? In my view, they hold none. In your view it appears they retain them all despite what the contract says in clear language saying the other.)
So again, which rights do you see here that RightHaven has? 7.2 says that RightHaven shall have no rights “…other than the right to proceeds in association with a Recovery.”
Quite plainly the case is thus.
1.) If Righthaven does not produce a rights assignement they hold no rights (not even the right to sue).
2.) If Righthaven does produce a rights assignement it’s up to the courts to find if Righthaven has any 106 rights and if not will probably look to Silvers v. Sony Pictures
Entm?t, Inc., 402 F.3d 881, 884 (9th Cir. 2005). My stance is that they do not hold 106 in accordance with the clear language above.
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Blank? Look at page PDF page 16 of the Agreement. Exhibit 1 contains this text:
That’s the boilerplate language they’ve been using for the individual assignments. I know the assignments in other cases have come out, and sure enough, they use that exact language. Courts that have looked at that assignment, standing alone, have ruled that ownership clearly transferred to Righthaven. If you’re talking about a specific case where they were supposed to produce that assignment but failed to, that is interesting. I hadn’t heard that before.
You’re hanging your hat on the word “retain.” I’ve explained this in other threads already, but I agree that the word is poorly chosen. The rights are not technically retained. Looking at the phrase directly after, it states, “retain (and is hereby granted by Righthaven).” To me, that clearly means that Righthaven granted Stephens those rights, not that Stephens Media retained them. The net result is that Stephens Media retained them, but technically, ownership changed hands and the rights were licensed to Stephens Media by Righthaven. I don’t think a court will look at the unfortunate choice of wording, “retain,” and give it much pause once they take a step back and read the whole sentence.
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Please show caselaw where such has occured, I’m having trouble finding it.
No, but like you I picked up on that being a poor word, it merely supports my argument. Or it could have been purposeful, I don’t know.
But in the very next sentence Righthaven is stripped of all rights, save the right to sue. This is what my had actually hangs on (also yours, though you claim it means otherwise.)
What 106 rights does righthaven have? According to 7.2 they retain none of them.
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My request for caselaw is where they have seen the rights assignment, in the case I’m discussing (Democratic Underground) where they have not (atleast to the best of my knowledge) despite it being requested by the defense.
Again Exhibit A is an example of one, you must also show which copyright you are assigning rights to (I believe).
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Sorry, I don’t have those cases off the top of my head. It’d be easy to find if there weren’t so many damned Righthaven cases. I know Randazza brought up the assignment in one case, and Mike wrote a story about it recently. I can’t find it though.
Righthaven is stripped of the rights in the sense that they granted an exclusive license of those rights. But keep in mind that the licensor doesn’t give his licensee complete ownership. That means that Righthaven kept ownership even though it granted an exclusive license.
Again, Righthaven has all of the 106 rights, as owner.
It’s very analogous to when you lease a house. As a lessee, you have the right to use and enjoy the property, but technically you don’t own it. A license is like a lease in that full ownership does not change hands.
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It’s very analogous to when you lease a house. As a lessee, you have the right to use and enjoy the property, but technically you don’t own it. A license is like a lease in that full ownership does not change hands
This is simply not analogous at all. When you lease a house, there are numerous things that you can and are leasing.
When you deal with copyright there are the limited rights under section 106.
That’s the problem. You still can’t point to a SINGLE right that Righthaven has EVER held under Section 106. Because there are none. And that’s where your argument falls entirely apart.
As has been explained to you. Over and over again.
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This is simply not analogous at all. When you lease a house, there are numerous things that you can and are leasing.
The analogy, as I carefully tried to explain so it wouldn’t go over your head, is that like a lessor, a licensor does not give total ownership to the person he grants a license to. Pointing out the differences between a lease and a license is stupid, since I was using the analogy for its similarity as to how ownership does not pass. Does a lessee have complete ownership of the thing he leases? No. Does a licensee have complete ownership of the thing he licenses? No. The analogy is spot on.
When you deal with copyright there are the limited rights under section 106.
Yes.
That’s the problem. You still can’t point to a SINGLE right that Righthaven has EVER held under Section 106. Because there are none. And that’s where your argument falls entirely apart.
You’re going to have to do better than that. As I have proved pointing to caselaw and treatises, a licensee does not obtain complete ownership of the thing he licenses. Just like the lessee of a house, a licensee doesn’t truly have complete ownership of the thing he licenses. Remarkably, you have shown nothing to rebut the evidence on this point that I have produced. Nor can you, I suppose.
As has been explained to you. Over and over again.
Considering that you don’t seem to understand what a license is, much less what even property is, perhaps you aren’t the one to be explaining this to me.
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Okay, see, you guys keep going back and forth. I’m not a lawyer, of course, and don’t understand half the BS legalese lawyers/legislators come up with, but here’s my take on the conversation so far:
Righthaven owns the copyright.
Righthaven gave exclusive rights (ALL rights) to Stephens Media.
You need to have those rights to sue.
Righthaven cannot exercise those rights since they licensed them away, thus they have no standing to bring suit.
That about sum it all up?
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Close, but you missed the important part. When Righthaven granted the exclusive license to Stephens Media, they did not give Stephens Media complete ownership. The analogy with a lease should be helpful. When you lease a house, you are granted certain exclusive rights in the house. This does not mean you own the house though. It’s the same with an exclusive licensee. The licensee does not have complete ownership of the thing he licenses.
Says the Second Circuit:
Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001).
Translation: an exclusive licensee does not own the copyright he licenses.
Anyone else take contract law?
I haven’t seen anything like this in the comments, but presumably some of you out there took contract law. Anyone want to get on board with this: a lack of consideration on Stephens Media’s part kills this agreement…?
Even going so far as acknowledging the written agreements in parts state transfer of some “copyright rights” to Righthaven, if you consider the entire SUBSTANCE of the arrangement here, what consideration has Stephens’ given in this bargain? I.e., what have they really has given up (besides their sense of decency )?
Except in this case, in theory…they are assigned the copyright. Yet then give a full license to Stephens Media, and then stripped of the rights, except to sue. Even worse Stephens Media can withdraw this assignement at any time.
Again you can’t call it a lease, yeah it fits, but not perfectly. A lease grants some other rights and responsibilities where as copyright is quite literally JUST the 106 rights. Nothing more, nothing less. If you tried to shoehorn the house into it, it would be more like “selling” your house to a guy, who then tells you to live in it for free, just keep it up like you have been doing and pay the taxes on it. The guy you sold the house to only retains the right to sue if someone breaks in. The problem since he’s not the one living in the house there is a specific law that says he can’t sue since he isn’t the damaged individual since the original owner is the one living in the house.
RIghthaven
FUD-haven:
Answer a simple question for me that should put the issue to rest. Under what circumstances would you consider the assignment from SM to Righthaven to be a sham? What would you want to see before acknowledging that the entire deal is structured to “illegally” evade the confines of the Copyright Act.
Re: RIghthaven
I don’t think there is a clear answer. That’s been my point. It’s one of those things–to get legalese on you–that would be decided on a case-by-case basis looking at the totality of the circumstances as there is no bright-line rule.
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But I asked for your opinion. Do you have one??
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Not really. I don’t think it’s a sham in the sense that sham means a simulation. A simulation is where the parties say one thing but intend another. I think the agreement here means what it says. Yes the agreement here is the parties contracting around the holding in Silvers, but I’m not convinced that this can’t rightfully be done. Silvers doesn’t say that an assignee can’t turn around and grant its assignor an exclusive license of the rights it was assigned. I’m also not convinced that it’s champerty, since Righthaven has legal ownership of the rights its enforcing and is not a mere intermeddler. Copyright law provides for the assignment of the right to sue. It makes little sense to not allow the assignee of that right to exercise it. The policy reason for allowing this is because the enforcement of rights is a good thing.
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You didn’t answer the question asked but instead repeated the talking points in defense of the assignment. Would you kindly read the question and answer it?
Re: Re: Re:3 RIghthaven
I don’t have an answer, as I’ve tried to indicate. I don’t think there is a clear answer. I can’t say “definitely x, y, and z, but not a, b, and, provided l, m, and n.” It just doesn’t work like that. Sorry, but that’s the best answer I can give you.
Re: Re: Re:4 RIghthaven
I didn’t think you would answer, which is indicative of your motives for submitting such an intellectually dishonest argument in defense of this extortion racket. So far, this is the only question you have refused to answer because you know an honest response will put this issue to rest.
Re: Re: Re:5 RIghthaven
I’m not answering, as I’ve indicated, because I don’t think there is an answer. But you believe whatever nonsense you want.
Re: Re: Re:6 RIghthaven
How can there not be an answer to my question? I asked for you to set forth several hypothetical scenarios, which if true, would lead you to conclude the assignment was a sham.
I submit the reason why you don’t want to answer is because every possible “sham” scenario would implicate this assignment.
Re: Re: Re:7 RIghthaven
To give you an intelligent answer, I’d have to look at different cases and fact patterns to see how courts treated them. From there, I could describe the contours and, by analogy, perhaps give you the answer you seek. That’s a bit a work, and I don’t really see the point in spending hours doing it just to satisfy you. I don’t have an intelligent answer that I can give you, for those reasons.
Re: Re: Re:8 RIghthaven
Then, how can you posit that the assignment is not a sham? Clearly you have no idea what a court would look for in making such a decision, yet you have no trouble siding with Righthaven’s version of the law. Contrary to what you want us to believe you are not too interested in the legal arguments that challenge the propriety of this scheme.
Re: Re: Re:9 RIghthaven
You just keep on going, don’t you? I haven’t sided with Righthaven. I’ve been perfectly clear that I don’t think either side is necessarily right. Nor do I think they’re necessarily wrong. You do understand the difference, don’t you? I’m waiting for the briefs from both sides, and then I’ll do some more research, and then my opinion will become more firm. Sorry, but I don’t work under whatever scheme it is you think I to work under.
Find somebody else to play with. This is boring.
Re: Re: Re:10 RIghthaven
Next.
Gotta love this thread.
Mike: Copyright isn’t property. Copyright is a bundle of rights.
Law Dictionary: Property is a bundle of rights.
The Universe: Crickets.
LMFAO!
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It is and it isn’t. Can you divide a house an infinite number of times with each licensee having full benefit of the whole?
There are fundamental differences, and to ignore those differences simply because Blacks calls it one of the definitions of property is an error and omission on your part.
RIghthaven
Another judge leans toward dismissal and the leeches filed ONLY two lawsuits in April. I Wonder why.
http://blog.ericgoldman.org/archives/2011/another_defense.htm
RIghthaven
The last link was bad.
http://blog.ericgoldman.org/archives/2011/05/another_defense.htm