Righthaven's Biggest Fan Copies Content As Part Of His Argument Against Copying Content

from the is-this-guy-clueless? dept

Last year, we wrote about how Sherman Frederick, the former publisher (since demoted to columnist) of the Las Vegas Review Journal was caught posting an infringing video on his blog. This was particularly funny, because Frederick was the key supporter of the LVRJ's "deal" with Righthaven, and regularly mocked-by-bad-analogy anyone who disagreed with him.

A few folks had sent in Frederick's latest column -- which, of course, we won't link to, since he's made it clear he doesn't want any traffic -- in which he once again defends Righthaven, despite the fact that a court basically killed off most Righthaven lawsuits due to its sham copyright transfer from LVRJ parent Stephens Media. Frederick's post is barely comprehensible, calling those who disagree with him "the unthinking blogger" and claiming that people who disagree with him "mischaracterize reality." He also seems to ignore the fact that Righthaven lost massively, and claims instead that "they're here to stay and they intend to win the battles they've started." I hope I haven't overstepped the legal boundaries of Frederick's bizarre definition of "content theft" with those quotes.

In the same article, Frederick, hilariously, suggests that everyone should have to pay to link to one of his articles. He references a decision by Radley Balko a few months ago to remove a post that linked to an LVRJ article once someone pointed out LVRJ's Righthaven association, and rather than realize how this makes Frederick and LVRJ look clueless, he claims that Balko did the right thing, and that every blogger can decide if such linking is "worth the price."

But what makes all of this extra funny is that the meat of Frederick's post is all copied content from another blog which is not properly attributed at all. Seriously. ken points us to his own analysis of Frederick's hypocrisy:
Frederick's article contains content from three paragraphs of posts from the blog GametimeIP.com. Frederick fails to even use basic netiquette for citing other sources. The parts taken are not attributed to the author except for a link and not even set in quotation marks which could leave the reader to assume those are Frederick's words and not those of GametimeIP.
It's hilarious. Yes, Frederick links to the articles, but frankly I had no idea he was actually quoting them. From the way he wrote it, it very much looks like they're Frederick's words, defending Righthaven. So, here we have Sherman Frederick, in an article decrying "copying" of content, in which he blatantly copies someone else's content, and even worse, does not properly credit it, or quote it. I also do wonder, if he "paid the price" to GametimeIP for his use of their content. After all, it's the proper way to do things, right?


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  1.  
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    Chris Rhodes (profile), Jun 20th, 2011 @ 11:46am

    Applicable Quotes

    "It is difficult to get a man to understand something when his job depends on not understanding it." - Upton Sinclair

    "Doublethink means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them." - George Orwell

     

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  2.  
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    Chronno S. Trigger (profile), Jun 20th, 2011 @ 12:05pm

    Re: Applicable Quotes

    "'Doublethink means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them.' - George Orwell"

    Maybe that's why these kinds of people seem so thick to me. It's not that they are, it's just they have 66% less free space in their brains. While I have one belief, they have to have one belief, a contradictory belief, and paradox absorbing crumple zones.

     

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  3.  
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    Chris Rhodes (profile), Jun 20th, 2011 @ 12:08pm

    Re: Re: Applicable Quotes

    paradox absorbing crumple zones

    Win.

     

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  4.  
    identicon
    DogBreath, Jun 20th, 2011 @ 1:05pm

    Sherman F. doing the right thing... lol

    So, here we have Sherman Frederick, in an article decrying "copying" of content, in which he blatantly copies someone else's content, and even worse, does not properly credit it, or quote it. I also do wonder, if he "paid the price" to GametimeIP for his use of their content. After all, it's the proper way to do things, right?

    Even if GametimeIP doesn't go after him, perhaps Sherman Frederick will do the right thing and become the poster child for this phrase:

    "Hypocrite, sue thyself."

    One can only hope his sue-mania exceeds his tenuous grasp on reality, especially when he looks at his own bank accounts and finds out how much money he can sue himself for.

     

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  5.  
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    Anonymous Coward, Jun 20th, 2011 @ 1:11pm

    This chucklehead works for a newspaper, right?

    As I recollect, those with a product to sell or promote pay the newspaper to place advertisements for that product (or event or opinion or notice or what have you). Some of these revenues are used by the newspaper to, oh, I dunno, pay some chucklehead's salary.

    A link to some chucklehead's article is basically advertising that chucklehead's product. So ergo, chucklehead, you should be paying the linkers for advertising your nonsense, not the other way around.

    Chucklehead.

     

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  6.  
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    Anonymous Coward, Jun 20th, 2011 @ 1:23pm

    ...oh, wow

    i have nothing left to say but i think you've just found THE copyrightard, well maybe not, because it sadly appears this type of hypocritical behavior is more common among that type of people than you'd think, they want to control what other people can or can't copy but the rules apparently don't apply to them

     

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  7.  
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    Robert Doyle (profile), Jun 20th, 2011 @ 1:24pm

    Sherman F. stop doing stuff!

    Nice DogBreath - I can see it going something like this...

    -------------
    Sherman F v. Sherman F.

    The Honorable Judge Why The Bleep Am I Here presiding.

    Sherman F.
    Counsel for the plaintiff

    Sherman F.
    Counsel for the defendant
    ----------------
    How does the saying go? He who represents himself...

     

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  8.  
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    Anonymous Coward, Jun 20th, 2011 @ 1:25pm

    Re: Re: Applicable Quotes

    rofl! ....wait, how do you absorb a paradox? why is it crumpling? i must know these things

     

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  9.  
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    Jordan (profile), Jun 20th, 2011 @ 1:28pm

    Who do I see about buying the right to sue?

     

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  10.  
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    Gwiz (profile), Jun 20th, 2011 @ 1:31pm

    Who, exactly, is this mysterious "unthinking blogger"? Inquiring minds want to know.

    I went and read this guy's article and even the comments on his own site are not very favorable towards him. Kinda funny.

     

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  11.  
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    Anonymous Coward, Jun 20th, 2011 @ 1:36pm

    Good grief. The article in question is here: http://www.lvrj.com/blogs/sherm/Content_protection_--_Night_of_the_unthinking_commentator_.html

    I t's clear to me that the text after the links are quotes from the articles linked to. It is hilarious though that he's simply quoting the articles without actually commenting on what they say other than to say that he recommends them. Of course, the fair use rulings that he's helped to bring about probably means it's fair use. But still, the hypocrisy is disheartening.

    In other news, Righthaven lost another case today. The judge ruled that Righthaven did not have standing and that it was fair use.

     

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  12.  
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    HothMonster, Jun 20th, 2011 @ 1:36pm

    Re: Re: Re: Applicable Quotes

    you adsorb the paradox by crumpling. It is crumpling because it is absorbing a paradox.

    sometimes people should think before they type

     

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  13.  
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    New Mexico Mark, Jun 20th, 2011 @ 1:44pm

    Re: Re: Re: Re: Applicable Quotes

    Naturally. And the gostak distims the doshes. Those who don't learn from sci-fi predictions are doomed to live them.

    NMM

     

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  14.  
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    Mike42 (profile), Jun 20th, 2011 @ 1:52pm

    Re:

    Rise above. We don't need to demean ourselves with immature and demonizing name calling. Dignify them with "copyright Maximalist" (which sounds pretty cool IMHO) and let them show their immaturity by refering to us as "Freetards." We'll be all the better for it.

     

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  15.  
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    Ikarushka (profile), Jun 20th, 2011 @ 1:59pm

    A million dollar idea

    I just invented an innovative business model. I’m going to start a new revolutionary Internet advertising business.

    That’s how it will work: I pay my clients for directing traffic to them, and I provide affiliates with means to pay me for placing my clients' ads on their personal pages. Affiliates will register their bank accounts with me, so I will be able to deduct fees for each and every click. I’m sure there will be no shortage of affiliates who will be eager to pay for every banner click their visitors make because this is the right thing to do.

    Oh, yes, one more note: to be consistent I need to set pricing to make sure my profit is negative.

     

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  16.  
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    Dark Helmet (profile), Jun 20th, 2011 @ 2:04pm

    Re: Re: Re: Applicable Quotes

    Judge: Sherman, if you will proceed

    Random court observer: Objection! Irrelevance!

    Judge: Sir, the gallery cannot object. Besides, we've only just begun.

    Random court observer: I understand that, your honor. I was suggesting that this whole suit is irrelevant, ridiculous, and is quite possibly of a level of stupidity such that it is giving us all testicular cancer as we speak.

    Judge: Testicular cancer? What about the women?

    Random court observer: Them too, yer honor. Fucking seriously.

    Judge: Case dismissed! Run!!!

     

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  17.  
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    Dark Helmet (profile), Jun 20th, 2011 @ 2:05pm

    Re: Re: Re: Re: Applicable Quotes

    Damn, replied to the wronge comment.

    Death penalty....

     

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  18.  
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    DannyB (profile), Jun 20th, 2011 @ 2:07pm

    Re:

    The US Patent and Tirade mark office.

     

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  19.  
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    DannyB (profile), Jun 20th, 2011 @ 2:08pm

    Re:

    > In other news

    Link please, I need the laugh.

     

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  20.  
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    cc (profile), Jun 20th, 2011 @ 2:14pm

    Re:

    That's precisely why everyone is talking about his hypocrisy. He believes fair use should apply to him and not to everyone else.

    Him copying other people's articles? No problem.
    But, others copying his articles? That'll be $150k, TYVM.

     

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  21.  
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    cc (profile), Jun 20th, 2011 @ 2:17pm

    Re: Re:

    This is the latest I've read about:
    A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work

    EPIC FAIL!

     

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  22.  
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    Anonymous Coward, Jun 20th, 2011 @ 2:21pm

    Re: Re:

    I'm sure Mike will be posting the decision. The standing analysis there is better than that of Judge Hunt, IMO. The judge still makes several conclusory statements without backing them up. I'll explain what I think of it once Mike posts it.

     

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  23.  
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    Anonymous Coward, Jun 20th, 2011 @ 2:22pm

    Re: Re:

    One wonders what he's thinking...

     

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  24.  
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    ken (profile), Jun 20th, 2011 @ 2:27pm

    Thanks for the link Techdirt. I will not sue for linking me.

    Not to sound vain but I do think Sherman Frederick's article is about me.

    Thanks for mentioning my story Techdirt.

    Ken
    Righthavenvictims.blogspot.com

     

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  25.  
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    DogBreath, Jun 20th, 2011 @ 2:29pm

    Re: Re:

    I always thought it was known as the "US Patently Obvious and Tirade mark office".

     

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  26.  
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    harbingerofdoom (profile), Jun 20th, 2011 @ 2:44pm

    Re: Re: Re: Re: Re: Applicable Quotes

    and you misspelled wrong on top of it.


    ....just sayin....

     

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  27.  
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    Mike Masnick (profile), Jun 20th, 2011 @ 3:43pm

    Re: Re: Re:

    I'm sure Mike will be posting the decision

    Yup. Won't have a post until tomorrow morning most likely. Want to spend some time on the decision, but am in meetings much of the rest of today. But looks like an interesting ruling.

     

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  28.  
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    Anonymous Coward, Jun 20th, 2011 @ 4:00pm

    Re: Re: Re: Re:

    Sounds good. The opinion is here for those who want to read it now: http://randazza.files.wordpress.com/2011/06/righthaven-v-hoehn.pdf

     

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  29.  
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    Righthaven Victims, Jun 20th, 2011 @ 4:25pm

    What happened to GameTimeIP?

    Has GameTimeIP responded yet?

    If so, anything along the lines of cutting off both of Shermy's hands and nailing him to the wall?

     

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  30.  
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    Payback Time, Jun 20th, 2011 @ 4:35pm

    Re: What happened to GameTimeIP?

    That guy from GameTime IP is a total idiot.

     

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  31.  
    identicon
    Anonymous Coward, Jun 20th, 2011 @ 4:46pm

    Re: What happened to GameTimeIP?

    I will laugh my ass off if gametimeip sues Shermy. ;)

     

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  32.  
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    ken (profile), Jun 20th, 2011 @ 4:47pm

    Re: Re: What happened to GameTimeIP?

    Patrick and GametimeIP is an IP lawyer so who knows. I have not yet heard from him to see if he gave Frederick permission but I doubt very strongly he did.

     

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  33.  
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    Anonymous Coward, Jun 20th, 2011 @ 7:57pm

    It's late and I'm bored, so I'll start the ball rolling on what will surely be another debate about Righthaven's standing (or lack thereof). I know I'll be called an "idiot" and a "troll." That's OK. I'll try not to let it get to me this time. The fact is, I enjoy thinking about this as a legal puzzle that needs to be solved. I don't care if Righthaven wins or loses. I believe that Righthaven has acted in bad faith by not disclosing Stephens' interest in the lawsuits (the 50-50 split), and I think/hope they should be sanctioned for that. I'm not a Righthaven apologist.

    That said, I think Judge Pro's analysis misses the mark. I should point out a problem that he and Judge Hunt have in deciding this case: There just isn't authority you can point to that settles the issue. There is some authority that could be analogized to, but that authority cuts both ways. The problem for Righthaven is that these judges think they've acted in bad faith. You can guess which way a judge will rule when they feel this way. I know for a fact that judges often work backwards. They tell their clerks, "I don't like so-and-so, so I need you to find me something to hang my hat on to decide against them." It happens.

    Judge Pro relies on two cases in his standing analysis: Nafal and Lahiri.

    Judge Pro's analysis of Nafal conveniently leaves out the fact that that case was decided under the 1909 Copyright Act instead of the 1976 Copyright Act. Since Nafal hadn't joined his assignor, he was going to lose the standing issue anyway. Nevertheless the court analyzed his standing. Of course, all of that analysis is necessarily dicta. Conveniently, Judge Pro leaves out this fact as well.

    What's worse, the test in Nafal, as devised by the court, was whether Nafal had the exact same rights as his co-exclusive licensee. Yes, the issue there dealt with the rights of a licensee instead of the rights of an assignee, another reason to distinguish the case. All the court had to find was one way that the relative rights differed, and Nafal would be found to lack standing.

    That test is inapposite here. Nowhere does it say that an assignee must possess the same rights as his assignor in order for the assignment to be valid. Judge Pro intimates otherwise, but offers no authority whatsoever for the proposition. Nor do I think any such authority exists.

    So we have a case dealing with a different test under much different circumstances related in dicta. Not good analysis.

    Lahiri is even more of a stretch than Nafal. That case dealt with a very dishonest lawyer who was being sanctioned for lying to the court about his client's copyright. The copyright ownership issue was governed by the laws of India. The lawyer lied to the court about a very important ruling from the Supreme Court of India. Basically, he told the court that his client owned the copyright in music he composed for a movie. Under Indian law, the copyright was in fact held by movie company who commissioned the work, much akin to our work for hire doctrine.

    On top of that, the lawyer lied to the court about an agreement between his client and another party. He claimed this agreement gave his client co-ownership of the copyright. In fact, this agreement only gave his client a one-half interest in whatever recovery might come from the lawsuit. Lahiri does no work in this case for the simple reason that the agreement there involved co-ownership of the proceeds of the recovery. The assignment used ownership language, true, but it did not purport to give ownership to the client. It's nothing like the assignment here that does explicitly give ownership.

    My biggest problem with Judge Hunt's and Judge Pro's analysis is that they look at what Righthaven has left after the assignment and the SAA. Since the SAA includes a grant of an exclusive license to Stephens, of course it appears that Righthaven does not have any exclusive rights. That will always be the case whenever anyone licenses away the 106 rights.

    The issue of standing, in my opinion, turns on the first half of the SAA and the assignment, the part where Stephens assigns its ownership interests in the copyright (and the accrued right to sue) to Righthaven. The subsequent grant of a license from Righthaven to Stephens is irrelevant. What no one has produced is any authority that states once an owner of a copyright grants an exclusive license to another, that owner loses standing to sue for past infringements. Nor do I think any such authority exists. I've looked.

     

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  34.  
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    Mike Masnick (profile), Jun 20th, 2011 @ 10:40pm

    Re:

    The issue of standing, in my opinion, turns on the first half of the SAA and the assignment, the part where Stephens assigns its ownership interests in the copyright (and the accrued right to sue) to Righthaven. The subsequent grant of a license from Righthaven to Stephens is irrelevant. What no one has produced is any authority that states once an owner of a copyright grants an exclusive license to another, that owner loses standing to sue for past infringements. Nor do I think any such authority exists. I've looked

    The problem with this paragraph, as has been explained to you multiple times by many people, including lawyers, and is also explained in Judge Hunt's analysis, is that you are simply incorrect in claiming that Stephens transferred the 106 rights to Righthaven. Everyone else can see that the rights were never transfered. Righthaven never had a single one of the 106 rights. It never, not for a second, was able to make use of any of those rights.

    And that's the problem.

     

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  35.  
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    The eejit (profile), Jun 20th, 2011 @ 11:56pm

    Re: Re: Re:

    Bob Dylan Syndrome?

     

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  36.  
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    The eejit (profile), Jun 20th, 2011 @ 11:57pm

    Re: Re:

    Correction: there was no full transfer of rights. That makes a ton of difference, in the presiding judge's views.

     

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  37.  
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    Payback Time, Jun 21st, 2011 @ 3:22am

    Re: Righthaven

    He is going to argue, yet again, that if Righthaven didn't have any exclusive rights how could it have transferred them back to Stephens Media. This will be a never ending argument with him and, frankly, a futile exercise. Evidently every judge and law professor is wrong on this point.

     

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  38.  
    identicon
    Payback Time, Jun 21st, 2011 @ 3:45am

    Re: Righthaven

    Your proposition flies in the face of Silvers, which prohibits trading in copyright infringement claims. Under your premise anyone would be able to manufacture standing by entering into an illusory assignment subject to a concurrent "re-assignment". As I have stated before, even if Righthaven could establish Article III standing, the courts may deny prudential standing because Righthaven's purported injury is not within the zone of interests the statute intends to protect.

     

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  39.  
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    Anonymous Coward, Jun 21st, 2011 @ 6:04am

    I hate to get too far into the debate in this thread if Mike's going to post the opinion in a new article this morning. Let's save it for there.

    I'll explain there too why I think Judge Pro's fair use analysis is less than satisfactory. The fact that he starts off with the "Sony presumption" tells you that his analysis is all sorts of sloppy--the "Sony presumption" is not the law. He needs a better clerk. Wonder if he's hiring? :)

    As far as judges and lawyers disagreeing with me goes, I don't care. I do my own research and come to my own conclusions, and I'm happy to explain why I think others got it wrong when that's what I think.

     

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  40.  
    identicon
    Anonymous Coward, Jun 21st, 2011 @ 7:46am

    Re: Re: Righthaven

    I'm not sure I buy the prudential standing argument. You're right that the court could turn to the issue of prudential standing if it had determined that Righthaven had Art. III standing. However, it's important to note that it's necessary that the court have already determined that the plaintiff has Art. III standing first before looking at prudential standing since Art. III standing is a threshold analysis. In other words, it's only appropriate to look at prudential standing if Righthaven is determined to have Art. III standing.

    Let's assume that Righthaven did have Art. III standing. Federal courts adopt prudential limits on standing "to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim," Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). As explained by the Third Circuit:
    Several considerations falling within the general rubric of prudential standing, however, are typically invoked. Thus, it is generally required (1) that a litigant “assert his [or her] own legal interests rather than those of third parties,” (2) that courts “refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances,” and (3) that a litigant demonstrate that the asserted interests are arguably within the “zone of interests” intended to be protected by the statute, rule or constitutional provision on which the claim is based. Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir.1994) (citations omitted); see also UPS Worldwide Forwarding, Inc. v. United States Postal Serv., 66 F.3d 621 (3d Cir.1995); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 485 (3d Cir.1998); Davis v. Philadelphia Hous. Auth., 121 F.3d 92, 96 (3d Cir.1997).
    Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 226 (3d Cir. 1998).

    (1) does no work since the court necessarily has already determined that the plaintiff has Art. III standing before looking to the issue of prudential standing. Righthaven is asserting their own legal interests as owner of the copyright. (2) does no work since this is not a generalized grievance or an abstract question. (3) does no work since clearly infringement of the rights that Righthaven owns are within the zone of interests that the statute creating the cause of action for infringement is meant to protect. The issue is whether Congress intended for someone in Righthaven's position to have standing to sue. As owner of the rights infringed, clearly they did. The fact that Congress explicitly granted a cause of action to parties in Righthaven's position trumps any zone of interest analysis.

     

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  41.  
    identicon
    Payback Time, Jun 21st, 2011 @ 8:07am

    Re: Re: Re: Righthaven

    You haven't fully grasped the concept of prudential standing and fall short on your zone of interests analysis. So please spend more time studying the subject before we have another go at it.

     

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  42.  
    identicon
    Anonymous Coward, Jun 21st, 2011 @ 8:25am

    Re: Re: Re: Re: Righthaven

    Why don't you actually address my arguments and explain to me how they're wrong? Saying I don't grasp it doesn't really explain anything.

    How exactly am I wrong? Do you agree that prudential standing is only looked at once it has been determined that the plaintiff has Art. III standing? If not, I'm happy to cite sources saying exactly that. Do you not think that the copyright owners are within the zone of interest that Congress intended to protect when they created a right of action for copyright owners? That makes no sense if that's your position.

    Honestly, I think I just shredded your prudential standing argument with about 10 minutes of research, and you don't have a good comeback. Is that about right? If not, then explain to me exactly how I'm wrong. If so, then just admit it.

     

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  43.  
    identicon
    Payback Time, Jun 21st, 2011 @ 8:29am

    Re: Righthaven

    Only a madman believes everyone else is mad.

     

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  44.  
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    Anonymous Coward, Jun 21st, 2011 @ 9:04am

    Re: Re: Righthaven

    I've only seen a few people proffer written analysis of the situation. You make it sound like it's the whole world. I explain what I believe and why I believe it. I don't see how that makes me mad. You really seem to have run out of arguments at this point. You say I'm "mad" and that I "don't fully grasp" your argument. That gets you nowhere. Why not stick to actual arguments? That is more productive.

     

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  45.  
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    Payback Time, Jun 21st, 2011 @ 9:44am

    Re: Re: Re: Re: Re: Righthaven

    Are you seriously advocating for a rule that allows anyone to manufacture standing by executing an assignment with a concurrent re-assignment, minus the right to sue?

    If that is your position there is nothing to debate. Good luck convincing a court that the assignment was not a sham. So far no one is buying it except you and a handful of lawyers with hidden motives.

     

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  46.  
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    DogBreath, Jun 21st, 2011 @ 10:02am

    Re:

    So to shorten the story, in Lahiri, the lawyer was caught in a lie and lost the case, but in Righthaven the lawyers were only caught obfuscating the real truth about the copyright assignments through contracts and subsequently also lost their case, because the judge saw right through their attempt at an end run around the law. Check.

     

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  47.  
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    The eejit (profile), Jun 21st, 2011 @ 10:42am

    Re:

    The Sony presumption sets four standards to decide if a so-called infringement falls under fair use. It is a guideline. Y'know, like sentencing has guidelines?

    Sheesh, for a wannabe lawyer, you sure aren't subtle!

     

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  48.  
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    I Got Bupkis (profile), Jun 30th, 2011 @ 12:37pm

    Re: Re: Applicable Quotes

    TOTALLY OT:
    Chronno, from your blog:
    "I put up a poll to the right. I keep looking at the stats on this blog and seeing a dozen or so visitors every day, but I get no comments. I just wanted to see if anyone actually reads this. "

    I use Firefox. There's nothing in the comment area. Just a big black blob. No comments fields, nothing. Might be related to the lack of feedback, since you haven't even provided a spam address to reach you at (i.e., a yahoo address to allow you to ignore all senders you don't think are of interest).

    In other words, this is the only way I could figure to reach you.

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    That One Guy (profile), May 10th, 2012 @ 5:39pm

    Re: Re: Re: Re: Applicable Quotes

    Misplaced comment or not, that was bloody awesome.

     

    reply to this | link to this | view in thread ]


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