Righthaven CEO: Judges Are Really Just Giving Guidance To Righthaven Competitors

from the swimming-in-the-river-in-egypt dept

Paul Quinn points us to this absolutely wonderful, must-watch interview of Righthaven CEO Steve Gibson, by Jon Ralston, who doesn't hold back at all. The opening question is, "You really screwed this whole thing up, didn't you?" From there, Gibson starts squirming, pretending that this is all about minor "technical" issues -- and saying that Ralston is "taking statements out of context," when he asks about the accusations from judges of "dishonest" behavior. Ralston doesn't let up, though, accusing Gibson of running a "shakedown" scam and calling the whole thing "stupid."
There's a funny part where Gibson tells Ralston that he has to respect the judicial process, and Ralston practically cracks up laughing, pointing out that the judges in these cases have made it clear that it's Righthaven that doesn't respect the judicial process with their actions. Gibson's attempt to tapdance around that, by claiming that all a judge has said is that they need to beef up some documentation, is pretty hilarious. Does he actually think he's fooling anyone? Or is he just trying to fool himself?

It gets better. Gibson tries a new tactic to explain why the judges have so thoroughly trashed Righthaven's cases. You see, all those angry words about Righthaven's dishonest activities and questionable behavior? Apparently that's not really meant for Righthaven at all. Oh, no no no. The judges respect and appreciate Righthaven, but they're so impressed by Righthaven's brilliant legal minds, that they're afraid others will copy Righthaven's plan... and use lawyers who aren't quite as smart. I'm not kidding:
GIBSON: I think part of what's happening here is that the federal judges realize that Righthaven has hired some of the top lawyers across the country. Copyright lawyers. Harvard law professors. And they understand that we're affiliated with an organization as reputable as Stephens Media.... In any event, I think what the judges are saying is 'listen, folks, Righthaven is filing a lot of lawsuits.' They understand that we're potentially genuine with respect to upholding copyrights. They don't want to see Righthaven competitors potentially come on with not solid documentation, and they're giving us guidance as to what the documentation should be.
I'm fascinated that anyone could possibly make such a statement and not have their brain explode from the sheer dishonesty of it. No, Steve, the judges aren't giving guidance to Righthaven competitors. They're threatening to sanction you (big time) for filing a bunch of sham lawsuits, for which the Nevada bar is investigating your lawyers as well.

Also, perhaps I heard wrong, but right before the first commercial break, it sounded like Gibson claimed (1) that only Righthaven has standing to sue and (2) that they only granted Stephens Media a non-exclusive license. I don't believe either claim is accurate. Even if you grant the idea that Righthaven had the copyrights from Stephens and then granted a license back to Stephens, then Stephens would likely have standing to sue (Righthaven, on the other hand, does not). Also, it seems abundantly clear that Righthaven has no right to further license the works in question to anyone other than Stephens Media, so I don't see how that's a non-exclusive license at all.

But, honestly, that's all sideshow. Righthaven has lost badly, and it looks like Gibson hasn't quite come to terms with how much trouble his company may be in.


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    Marcus Carab (profile), Jun 24th, 2011 @ 10:55am

    "Possible disingenuous" is my new favourite phrase...

     

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    Gabriel Tane (profile), Jun 24th, 2011 @ 11:21am

    potentially?

    GIBSON: "...They understand that we're potentially genuine with respect to upholding copyrights."

    So... they're only genuine... maybe? Is that a misquote, or did he really just say that they are only maybe, possibly genunine in upholing copyrights?

    Did I just hear the click-clack of someone chambering a Freudian-round?

     

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      Dark Helmet (profile), Jun 24th, 2011 @ 11:23am

      Re: potentially?

      Nope. Just watched the interview. It's in there.

      This guy is a megalomaniacal loon....

       

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        Scote, Jun 24th, 2011 @ 11:57am

        Meglomania?

        Well, he's something alright. Why would he think that going on this show would be a good thing? How full of himself does he have to be to think he can misrepresent himself out of the hole Righthaven has dug itself into?

        Trying to to call omitting Stephens Media's 50% interest from all 200+ lawsuits a "technicality" is beyond mere legal wrangling. It is, I'd say, material to the suits. I don't think this interview will help him get out of the possibility of legal sanctions.

         

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        The Devil's Coachman (profile), Jun 24th, 2011 @ 12:26pm

        Re: Re: potentially?

        And a megalomaniacal loon that needs to be beaten with iron bars, whilst being given a molten lead enema simultaneously. That, my friends, would qualify as justice. But I mean that in a nice way.

         

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          Scote, Jun 24th, 2011 @ 12:39pm

          Re: Re: Re: potentially?

          Uh. No.

          While it seems you mean your post in jest, violence really isn't funny and I don't want to see your post used, out of context, against those who believe in copyright reform.

           

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            The Devil's Coachman (profile), Jun 24th, 2011 @ 12:49pm

            Re: Re: Re: Re: potentially?

            If those who don't understand hyperbole wish to do so, then let them. It would only reinforce the public perception of their idiocy, something that needs to be done anyway. Actually, violence can be quite funny in the correct context.

             

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            Any Mouse (profile), Jun 24th, 2011 @ 2:28pm

            Re: Re: Re: Re: potentially?

            I think it's hilarious.

             

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      Anonymous Cohort, Jun 24th, 2011 @ 1:09pm

      Re: potentially?

      I think 'upholing' is a fantastic word for this.

       

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      Jason, Jun 24th, 2011 @ 1:41pm

      Re: potentially?

      Notice: I am not a licensed financial advisor.

      BUt DANG! When your CEO says your entire business model is potentially genuine, um, sell?

       

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    Anonymous Poster, Jun 24th, 2011 @ 11:25am

    I thought it was just Righthaven's "brilliant" legal team that was monumentally stupid.

    It's nice to know that the "brains" behind this "company" is just as "brilliant" as the "lawyers" he hired to "sue" people.

     

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    Anonymous Coward, Jun 24th, 2011 @ 11:27am

    Ouch...

    The look on Steve's face, right when the interview started LOL.... he looks like someone that can't figure out if he's shit himself or not.....

     

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    Scote, Jun 24th, 2011 @ 11:32am

    He blames the "lawyers" :-o

    Love how Gibson blames the lawyers for the ruling as if he isn't the chief lawyer who approves all the suits, and ignoring that omitting the fact from **all** of the lawsuits that Stephens media was a 50% partner in all the moneys won was clearly a decision that was *his* omission, on that can't be blamed on local council.

    I also love how Gibson tries to make an analogy with title on a house, except that copyright is governed by copyright statute and case law and can't legitimately be analogized to the title to a house--which he, as a lawyer in 200+ copyright lawsuits must know, but does anyway.

    IMO. IANAL.

     

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    Jay (profile), Jun 24th, 2011 @ 11:36am

    Steve Gibson

    Level 1 Warrior (Hasn't been fighting long)
    Strength - 9
    Dexterity -10
    Constitution - 8
    Intelligence - 9 (-1 for breaks in logic)
    Wisdom - 10 (-2 for troll)
    Charisma - 8 (in his own mind - 18)

    Fortitude: +1 to all Fort saves
    Reflex: 0
    Will: 0

    +2 to Forgery
    +2 to Disguise
    +2 to Bluff

    0 to Spot Checks

    -1 to Intimidate

    -2 to Gather Info
    -2 to Diplomacy
    -2 to Concentration

    Character Abilities
    Leadership
    Deceitful

    Made here

    I think it's time for Gibson to re-roll his character.

     

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    Nathan F (profile), Jun 24th, 2011 @ 11:36am

    Raxacorafalapatora?

     

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    anymouse (profile), Jun 24th, 2011 @ 11:42am

    It's called Cognative Dissonance... I think it's required to be a lawyer or Media company Exec

    Seriously.... Look it up

    There is no other way to explain how they can 'believe' the things they say (other than being total outright hypocritical liars, which is another option, but lets be nice and give them the benefit of the doubt).

     

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    weneedhelp (profile), Jun 24th, 2011 @ 12:11pm

    I couldnt get the vision of a thought bubble above his head scrolling I can believe I can fly lyrics.

     

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    Ikarushka (profile), Jun 24th, 2011 @ 12:41pm

    O Times! O Morals! A whore... sorry, adult actress lectures file-shares on morality, now a lying scumbag teaches us the meaning of honesty.

     

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      Scote, Jun 24th, 2011 @ 1:13pm

      Who are you to lecture a sex worker on morality?

      Sorry, Ikarushka, I'm not seeing the inherent immorality of having sex for pay. Are you saying that all other physical workers are also immoral? Construction workers? Physical therapists? Masseurs? Ballroom dance instructors?

      If you want to tear down Kayden Kross's arguments on copyright please do so. I think her arguments are weak. But I'm talking about her **arguments** and not making an ad hominem like you are. And really, it isn't fair to the sex worker to compare her to Righthaven. One of them screws hundreds of people for exorbitant sums money the other makes porn films.

       

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        Ikarushka (profile), Jun 24th, 2011 @ 1:50pm

        Re: Who are you to lecture a sex worker on morality?

        I like that you defended the actress, but not Gibson, although I used much stronger words describing him :)

        If I was Gibson, I would argue that I mentioned adult actress purely for contrast, and hence what I said was actually a compliment to her virtues.

         

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          Scote, Jun 24th, 2011 @ 2:05pm

          Re: Re: Who are you to lecture a sex worker on morality?

          Not buying it. You called her a whore. That's not a compliment.

          If you meant to complement Kayden Kross then I'd say your communications skills are lacking.

           

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        Anonymous Coward, Jun 24th, 2011 @ 7:03pm

        Re: Who are you to lecture a sex worker on morality?

        Though I agree that having sex for money is not necessarily immoral, porn stars are people too, so generalization is not applicable here. There are good porno actresses, bad porno actresses and some of them fell even lower than Gibson.

         

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      JMT, Jun 24th, 2011 @ 10:55pm

      Re:

      Kayden complains about...

      "...us content owners left standing with our thumbs up our butts..."

      Honey, that wasn't a thumb...

       

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    Anonymous Coward, Jun 24th, 2011 @ 12:52pm

    Righthaven has a new filing in the Democratic Underground case. Sheds some like on their new standing arguments. Apparently they decided to start doing some serious research on the issue: http://www.wired.com/images_blogs/threatlevel/2011/06/survival.pdf

    Definitely worth a read if you're interested in the standing debate.

     

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      Mike Masnick (profile), Jun 24th, 2011 @ 1:36pm

      Re:

      No comment on Gibson's statements here?

       

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        Anonymous Coward, Jun 24th, 2011 @ 1:48pm

        Re: Re:

        I'm still waiting to see how they justify misleading the court as to Stephens' interest in the lawsuit. It sounded like Gibson was about to explain it, but the host kept cutting him off. I'm sure they'll try and justify it somehow, but from the looks of it to me, they weren't truthful with the court and I don't see how they can spin that. Since when is a 50% interest in the outcome of a suit not an interest that has to be disclosed? I'm not really familiar with what exactly the rules are there, but on its face, it seems like they lied.

        As far as Gibson goes, he's definitely trying to spin all this as a positive. That's not too surprising. Of course he's trying to spin it. What else would he do? I understand him though when he says they're just trying to stand up for their rights and trying to fight the ocean of infringers. I don't begrudge them that.

        The fact remains that I think the judges got the standing issue wrong, not to mention the bad fair use rulings. As Gibson said, on to the Ninth Circuit. I'm assuming in the meantime that the "copyright experts" and "professors" that he spoke of can brief out those issues really well for the circuit court. I really don't see the Ninth Circuit agreeing that posting an entire article on a message board is fair use. Nor do I think they'll agree that Silvers says what these judges seem to think it says as to standing.

        We'll see. There's no lack of entertainment from watching this unfold, that's for sure.

         

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          Scote, Jun 24th, 2011 @ 1:59pm

          He did explain it.

          "I'm still waiting to see how they justify misleading the court as to Stephens' interest in the lawsuit. It sounded like Gibson was about to explain it, but the host kept cutting him off."

          Gibson did "explain" it. The lack of disclosure was a "technicality". In the same way lying or perjury might be called a technicality, I'd say.

          I liked how the host called Stephens Media Righthaven's "client"--which seems to be the right description--and Gibson had to try to clarify by calling Stephens media a "business relation".

           

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            Anonymous Coward, Jun 24th, 2011 @ 2:08pm

            Re: He did explain it.

            He did say it was a technicality. I got the feeling that he was going to give out the reason as to why they didn't feel they had to disclose the information, but he never got the chance since the host of that show cut him off. I think it's obviously a bigger deal than he let on, though.

             

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          crade (profile), Jun 24th, 2011 @ 2:12pm

          Re: Re: Re:

          Kept cutting him off? lol, he was trying to make it seem like he was being cut off, but every time he let him talk, he just tried to confuse the issue further. He certainly made no effort to explain anything.
          I don't care what they claim to by "trying" to do, what they *are* doing is extorting money from people. Real lawsuits have evidence and a case, they aren't just a bunch of letter sent out that say give me money or I'll make your life hell whether youve done anything or not.

           

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            Anonymous Coward, Jun 24th, 2011 @ 3:23pm

            Re: Re: Re: Re:

            I wish he'd been given a little more time to answer the questions he was being asked. Sure, it would likely have been spin and half-truths, but still I would like to have heard more.

             

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      Ikarushka (profile), Jun 24th, 2011 @ 2:21pm

      Re:

      I feel stupid. I have hard time understanding this document. Is Righthaven asking to intervene in its own lawsuit? Seems like jurisprudence flying father and father from the areas populated by normal human beings. I have no issue with corporate lawyers fighting with other corporate lawyers – it’s their bread, their chess paly. But apparently some lawyers decided that they are better than gods and started using their sophisticated weaponry against peaceful population of non-lawyers. If two armies fight each other, that’s war. If an army fights with population, that’s atrocity, and it couldn’t stay unnoticed. So Righthaven’s model was doomed from the conception.

       

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        Anonymous Coward, Jun 24th, 2011 @ 3:13pm

        Re: Re:

        I feel stupid. I have hard time understanding this document. Is Righthaven asking to intervene in its own lawsuit? Seems like jurisprudence flying father and father from the areas populated by normal human beings. I have no issue with corporate lawyers fighting with other corporate lawyers – it’s their bread, their chess paly. But apparently some lawyers decided that they are better than gods and started using their sophisticated weaponry against peaceful population of non-lawyers. If two armies fight each other, that’s war. If an army fights with population, that’s atrocity, and it couldn’t stay unnoticed. So Righthaven’s model was doomed from the conception.

        It's not a stupid question at all. Judge Hunt dismissed Righthaven from the suit, but there's still the counter-suit against Stephens Media. In the counter-suit, Democratic Underground is asking the judge to rule that their use wasn't infringing. Since Righthaven now has the new agreement with Stephens making Stephens only a non-exclusive licensee and Righthaven the owner of the copyright, Righthaven is saying that they have a right to be a party to the counter-suit they were just dismissed from. It's kind of sneaky because they are forcing Judge Hunt to rule on whether or not Righthaven has standing under the new agreement between Righthaven and Stephens. Judge Hunt declined to make that ruling when he dismissed Righthaven from the main suit. Now he's going to have to rule one way or the other. The fact that Righthaven has brought in this "bad ass litigatrix" to represent them in the matter means that they are going to push this standing issue hard.

         

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          Ikarushka (profile), Jun 24th, 2011 @ 3:24pm

          Re: Re: Re:

          Thank you for the explanation. Chess game indeed.

          With all these complexities I'm sure there must be a legal way to add Righthaven to the suit and dismiss Democratic Underground, so Righthaven and Stephens Media would sue each other: whoever loses, pays legal fees to Democratic Underground.

           

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            Anonymous Coward, Jun 24th, 2011 @ 3:34pm

            Re: Re: Re: Re:

            LOL! They might end up suing each other down the road. The way things are going, I wouldn't be surprised.

             

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          Karl (profile), Jun 24th, 2011 @ 5:28pm

          Re: Re: Re:

          Judge Hunt declined to make that ruling when he dismissed Righthaven from the main suit.

          He ruled it doesn't make any difference:
          Notwithstanding the actual transaction that occurred, Righthaven argues that the amendment it executed with Stephens Media on May 9, 2011, the day that they filed their response to the supplemental memorandum validates or fixes any possible errors in the original SAA that would prevent Righthaven from having standing in this matter. However, this amendment cannot create standing because "'[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.'" [Emphasis in original]

          So, I doubt very much that Righthaven will be allowed "in the back door," as it were.

          Especially since even the "Clarification" of the SAA likely does not give Righthaven standing to sue (despite using the language of a "non-exclusive license"). Judge Pro, the judge in Righthaven v. Hoehn, said this about the "clarified" assignment:
          Even assuming that the May 9, 2011 Clarification can change the jurisdictional facts as they existed at the time of the filing of the suit, it still does not correct the deficiencies with respect to lack of standing. [...]

          The May 9, 2011 Clarification provides Righthaven with only an illusory right to exploit or profit from the Work, requiring 30 days advance notice to Stephens Media before being able to exploit the Work for any purpose other than bringing an infringement action. Stephens Media has, in its sole discretion, the option to repurchase the Copyright Assignment for a nominal amount within 14 days, thereby retaining the ability to prevent Righthaven from ever exploiting or reproducing the Work. Stephens Media's power to prevent Righthaven from exploiting the Work for any purpose other than pursuing infringement actions is further bolstered by the Clarification's provision that every exploitation of the Work by Righthaven other than pursuing an infringement action without first giving Stephens Media notice constitutes irreparable harm to Stephens Media. Stephens Media may obtain injunctive relief against Righthaven to prevent such "irreparable harm" and, pursuant to the Clarification, Righthaven has no right to oppose Stephens Media's request for injunctive relief. Accordingly, Righthaven does not have any exclusive rights in the Work and thus does not have standing to bring an infringement action.


          I'd also like to point out one thing about Gibson's interview. He said the "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful" language that the Court used, was in reference to the profit-sharing between Righthaven and Stephens. He lied. That language was a direct reference to the standing issue.

           

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            Scote, Jun 24th, 2011 @ 6:44pm

            Standiing to intervene may be different.

            "So, I doubt very much that Righthaven will be allowed "in the back door," as it were."

            It seems pretty clear that Righthaven has lost standing to sue on all of the extant cases. But that isn't what this latest filing is about. They are now asking for standing to defend their rights from a counter suit seeking a declaration of non infringement. That may be a different legal matter than standing to sue given that Righthaven may now actually have legal ownership of copyright as of now and going forward.

             

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              Anonymous Coward, Jun 24th, 2011 @ 7:12pm

              Re: Standiing to intervene may be different.

              It seems pretty clear that Righthaven has lost standing to sue on all of the extant cases. But that isn't what this latest filing is about. They are now asking for standing to defend their rights from a counter suit seeking a declaration of non infringement. That may be a different legal matter than standing to sue given that Righthaven may now actually have legal ownership of copyright as of now and going forward.

              That's exactly right. It's not about whether they had standing when they brought suit against Democratic Underground (Judge Hunt already ruled they didn't), this is about whether they have standing now under the new agreement. Their argument is that the counter-suit involves a copyright they now own, so they have a right to be a party to the suit.

               

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            Anonymous Coward, Jun 24th, 2011 @ 7:07pm

            Re: Re: Re: Re:

            He ruled it doesn't make any difference:

            Notwithstanding the actual transaction that occurred, Righthaven argues that the amendment it executed with Stephens Media on May 9, 2011, the day that they filed their response to the supplemental memorandum validates or fixes any possible errors in the original SAA that would prevent Righthaven from having standing in this matter. However, this amendment cannot create standing because "'[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.'" [Emphasis in original]


            So, I doubt very much that Righthaven will be allowed "in the back door," as it were.


            Judge Hunt ruled that the new agreement doesn't work retroactively, so it couldn't help them in the main suit. The issue here is whether Righthaven has standing now, in the present. Judge Hunt said that he didn't think they would in the opinion, but he didn't actually rule on the point. Righthaven is saying that even if they didn't have standing then, they have standing now since the new agreement is in effect now. If they are now the copyright owner, they then have a right to be a party to the counter-suit since it affects their copyright. It's quite clever because they're forcing Judge Hunt to make a ruling as to their standing under the new agreement.

            I'd also like to point out one thing about Gibson's interview. He said the "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful" language that the Court used, was in reference to the profit-sharing between Righthaven and Stephens. He lied. That language was a direct reference to the standing issue.

            Was it? I thought he said that about the failure to name Stephens in the corporate disclosure statement. That's what he's making Righthaven show cause about, not the standing issue per se.

             

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    Anonymous Coward, Jun 24th, 2011 @ 12:57pm

    Also, perhaps I heard wrong, but right before the first commercial break, it sounded like Gibson claimed (1) that only Righthaven has standing to sue and (2) that they only granted Stephens Media a non-exclusive license. I don't believe either claim is accurate. Even if you grant the idea that Righthaven had the copyrights from Stephens and then granted a license back to Stephens, then Stephens would likely have standing to sue (Righthaven, on the other hand, does not). Also, it seems abundantly clear that Righthaven has no right to further license the works in question to anyone other than Stephens Media, so I don't see how that's a non-exclusive license at all.

    He's talking about the amended agreement between Righthaven and Stephens. In the new agreement, Stephens assigns the copyright to Righthaven, and Righthaven grants back to Stephens a non-exclusive license. Non-exclusive licensees do not have standing to sue for infringement, so that means that only Righthaven would have standing, as the licensor.

     

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      Scote, Jun 24th, 2011 @ 1:18pm

      Re:

      "Non-exclusive licensees do not have standing to sue for infringement, so that means that only Righthaven would have standing, as the licensor."

      Yes. Of course Gibson is attempting a bit of misdirection by saying that because that standing, if it stands, only applies to *new* suits. Standing in the old cases is based on when the case was filed. Amendments can't fix the standing in those cases.

       

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        Anonymous Coward, Jun 24th, 2011 @ 1:54pm

        Re: Re:

        It's interesting too because Judge Hunt in the Democratic Underground case ruled that the new agreement couldn't have retroactive effect. Judge Pro in the Hoehn case though declined to make that ruling. Makes me wonder if Judge Hunt's ruling got it right. I'm not familiar enough with how that works to have an educated opinion on it.

        I still think the original agreement gave Righthaven standing, and I expect that they'll be making much better arguments on that issue in the other cases where it's come up. They've got "experts" and "professors" on their side now! I'm sure they're busy right now working on how to explain to other judges why Judges Hunt and Pro got it wrong. ;)

         

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          Scote, Jun 24th, 2011 @ 2:03pm

          Standing.

          Gibson tried to defend Righthaven by saying that they'd been found to have standing in other cases. He "forgot" to mention that Righthaven had in those cases withheld the master agreement between Righthaven and Stephens Media that showed that Righaven had none of the copyrights necessary to have standing, an agreement that Righthaven fought to have sealed to prevent other defendants from learning about.

          I'd say that Gibson is an outright liar.

           

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            Anonymous Coward, Jun 24th, 2011 @ 2:09pm

            Re: Standing.

            What he said was technically true, but you're right, it wasn't the whole truth.

             

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              Scote, Jun 24th, 2011 @ 2:18pm

              Re: Re: Standing.

              Yes. You are right. It was technically true. I'd also say that it was deliberately misleading, which can also be a form of lying. One can lie with facts. I suppose that is what some lawyers think their job is.

               

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                Anonymous Coward, Jun 24th, 2011 @ 2:23pm

                Re: Re: Re: Standing.

                In my ethics class we learned that you have a duty to disclose any law that's contrary to your position, but not any such facts. It's the other guy's job to disclose those.

                 

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                  Scote, Jun 24th, 2011 @ 2:39pm

                  Standing.

                  So, where do you think law school ethics training would stand on the issue of withholding a material part of the copyright agreement between Stephens Media and Righthaven, and in withholding disclosure the 50% contingency/revenue split between Stephens Media and Righthaven? I'm going to guess that those aren't mere "facts" that don't have to be disclosed.

                   

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                    identicon
                    Anonymous Coward, Jun 24th, 2011 @ 2:51pm

                    Re: Standing.

                    If they were required to give that information, and I believe they were but know for sure, then they're looking at sanctions and/or problems with the state bar, like suspension or revocation of their license. From the looks of it, they have some "technicality" argument that they're going to present (by Tuesday, when the brief's due). I have to think that unless it's some airtight reason not to disclose the information, the already-angry Judge Hunt will sanction them.

                    They teach us not to lie to the courts in law school since attorneys are "officers of the court." ;)

                     

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                  crade (profile), Jun 24th, 2011 @ 4:00pm

                  Re: Re: Re: Re: Standing.

                  In my ethics class we learned that statements meant to deceive are lies.

                   

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      Karl (profile), Jun 24th, 2011 @ 7:17pm

      Re:

      In the new agreement, Stephens assigns the copyright to Righthaven, and Righthaven grants back to Stephens a non-exclusive license.

      I should point out that this is not how Judge Pro viewed the new contract:
      The Clarification amends section 7.2 of the SAA and replaces it with the following:
      Automatically upon execution of a Copyright Assignment, Stephens Media is granted a non-exclusive license to Exploit the Stephens Media Assigned Copyright to the greatest extent permitted by law in consideration for payment in the amount of One Dollar and Zero Cents ($1.00) per year to Righthaven as a license or royalty for each Stephens Media Assigned Copyright as Consideration for the license granted herein (the "License Fee"). Any License Fee required under this amended and revised Section 7.2 shall be retroactive to the Effective Date. In the event that Righthaven decides to Exploit or participate in receipt of royalties from Exploitation of a Stephens Media Assigned Copyright other than in association with a Recovery, Righthaven shall give Stephens Media 30 days prior written notice. The parties acknowledge that failure to provide such notice would be a material breach of this Agreement and would cause Stephens Media irreparable harm, remediable through injunctive relief, which Righthaven and those asserting rights obtained from it shall have no right to oppose.[Emphasis mine]

      Additionally, the Clarification amends section 8 of the SAA and replaces it with sections 8.1 and 8.2, including the following:
      At any time, within its sole discretion, Stephens Media shall have the option, within 14 days of providing notice of the exercise of such option, to purchase all right and title to the Stephens Media Assigned Copyright in consideration for payment in the amount of Ten Dollars and Zero Cents ($10.00) ("Exercised Option").

      [...] The May 9, 2011 Clarification provides Righthaven with only an illusory right to exploit or profit from the Work[...] Accordingly, Righthaven does not have any exclusive rights in the Work and thus does not have standing to bring an infringement action.

      - Righthaven v. Hoehn

      Of course, Judge Hunt may rule differently, but I wouldn't count on it.

       

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        Scote, Jun 24th, 2011 @ 7:34pm

        Illusory rights

        Yes, since Stephens Media retains the unilateral right to the work (the perpetual right to reclaim its copyrights at its sole discretion) it seems pretty likely that all the new SAA does is put more add another layer of paint to the facade rather than materially restructure the agreement.

         

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          Karl (profile), Jun 24th, 2011 @ 7:49pm

          Re: Illusory rights

          since Stephens Media retains the unilateral right to the work (the perpetual right to reclaim its copyrights at its sole discretion)

          Well, more than that, in fact. In order for Righthaven to exploit the works in any way, they need Stephens' prior approval, even if Stephens does not "reclaim" the copyright.

          It doesn't even "add another layer of paint to the facade;" it adds a splotch of graffiti to a gaping hole in the foundation.

           

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            identicon
            Scote, Jun 24th, 2011 @ 9:04pm

            Judge pro on the revised sham transfer of rights

            Seems that you are right. Righthaven is still built on the idea of a sham transfer:

            " The May 9, 2011 Clarification offers recitals stating the parties’ intent “to convey all ownership rights in and to any identified Work to Righthaven . . . so that Righthaven would be the rightful owner of any identified Work and
            entitled to seek copyright registration.” However, it does not provide Righthaven with anyexclusive rights necessary to bring suit. The May 9, 2011 Clarification provides Righthaven with only an illusory right to exploit or profit from the Work, requiring 30 days advance notice to Stephens Media before being able to exploit the Work for any purpose other than bringing an infringement action. Stephens Media has, in its sole discretion, the option to repurchase the Copyright Assignment for a nominal amount within 14 days, thereby retaining the ability to prevent 16
            Righthaven from ever exploiting or reproducing the Work. Stephens Media’s power to prevent Righthaven from exploiting the Work for any purpose other than pursuing infringement actions is further bolstered by the Clarification’s provision that every exploitation of the Work by Righthaven other than pursuing an infringement action without first giving Stephens Media notice constitutes irreparable harm to Stephens Media. Stephens Media may obtain injunctive relief against Righthaven to prevent such “irreparable harm” and, pursuant to the Clarification, Righthaven has no right to oppose Stephens Media’s request for injunctive relief. Accordingly, Righthaven does not have any exclusive rights in the Work and thus does not have standing to bring an infringement action. "

            http://docs.justia.com/cases/federal/district-courts/nevada/nvdce/2:2011cv00050/78697/28/

            Th is is all just so stupid and unnecessary. If Righthaven was set up the normal way and admitted it is a law firm working on contingency the issue of standing would never come up. It's just silly how Stephens Media wants to pretend that the hundreds of vexatious lawsuits filed with zero attempts at mitigation (no DMCA takedown notices, no C and D letters) have nothing to do with it. Instead Righthaven and Stephens Media have set up what seems like a sham that is engaged in illegal and dishonest barratry and champerty.

            IMO--as are all of my posts.

             

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              Karl (profile), Jun 24th, 2011 @ 10:21pm

              Re: Judge pro on the revised sham transfer of rights

              You're absolutely right on all charges, IMHO.

              Except perhaps this:

              If Righthaven was set up the normal way and admitted it is a law firm working on contingency the issue of standing would never come up.

              Part of the point of this arrangement is that it supposedly shelters Stephens from any legal backlash (like the counter-suit in this case), meaning they don't risk e.g. legal fees.

              Also, I'm not entirely sure the barratry charge would go away. It is Righthaven that seeks out "infringers," after all. I'm guessing that avoiding those charges (by claiming they're not a law firm, but a "holding company") is also part of the reason Righthaven is set up this way.

               

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      •  
        identicon
        Anonymous Coward, Jun 24th, 2011 @ 8:26pm

        Re: Re:

        Of course, Judge Hunt may rule differently, but I wouldn't count on it.

        You don't think Judge Hunt will rule in Righthaven's favor? What makes you think that? ;)

         

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  •  
    identicon
    Anonymous Coward, Jun 24th, 2011 @ 1:08pm

    I'm actually a bit concerned for Gibson's wellbeing. Someone should keep an eye on him to make sure he doesn't try to commit suicide. He's going to wake up from his delusion eventually, and when your whole world collapses like that, it puts you in a dangerous state of mind...

     

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    Killer_Tofu (profile), Jun 24th, 2011 @ 1:14pm

    No copyright trolls?

    Where are the copyright maximalists on this one to defend everything Righthaven does as just and holy?
    They are oddly absent from this thread.
    They must be too busy spewing their crap in the 8 bit miles davis thread I guess.

     

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    •  
      identicon
      Anonymous Coward, Jun 24th, 2011 @ 8:37pm

      Re: No copyright trolls?

      I think I've been labelled such a maximalist and I'm here. It's hard to defend what's going on here at this point. It's just not that difficult to sue someone who copies your newspaper articles wholesale. They've made it way harder than it has to be. Case in point, South Carolina: http://media.lasvegassun.com/media/pdfs/blogs/documents/2011/06/24/rhaveneiser6232011amendclaim.pdf

      Righthaven plays hardball. The problem for them is that so does the other side.

       

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        identicon
        Scote, Jun 24th, 2011 @ 9:17pm

        Exploitive

        "Righthaven plays hardball. "

        More like Righthaven throws chairs at the fans.

        The the Stephens Media newspaper tells people to "ShareThis" with Friends via email, Facebook, Twitter, Google Buzz, Blogger, MySpace, Digg, AIM Share, StumbleUpon, or Print or Save the article--all with no notice of copyright limitations. Then if someone does "ShareThis" on their blogg or in a web comment, Stephens Media files suit via Righthaven with no notice, no attempt to mitigate, no C and D--and the demand the statutory maximum and forfeiture of the entire domain even for what could be de minimus use! That that ain't "hard ball" that's just vicious, exploitative and dishonest IMO.

         

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    identicon
    Anonymous Coward, Jun 24th, 2011 @ 1:28pm

    Why does he look and sound like....

    Stephen Colbert.....no ... really...it's almost like a character he's playing....

     

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    •  
      identicon
      Anonymous Coward, Jun 24th, 2011 @ 2:05pm

      Re: Why does he look and sound like....

      I think Gibson's a pretty sharp dresser. Even better than Colbert. ;)

       

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        Ikarushka (profile), Jun 24th, 2011 @ 5:13pm

        Re: Re: Why does he look and sound like....

        Yes. It is 100+ F in Las Vegas, so he is not only in defiance of Righthaven's troubles, but also defies the weather...

         

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          identicon
          Anonymous Coward, Jun 24th, 2011 @ 7:19pm

          Re: Re: Re: Why does he look and sound like....

          It takes a special kind of man to opt for a sweater underneath his jacket in that kind of weather. Guess it means he can take the heat! ;)

           

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    Beta (profile), Jun 24th, 2011 @ 2:25pm

    *yawn*

    Ralston comes across as an idiot, but maybe that's what his public likes.

    If I knew nothing about this case, I'd see an interviewer who can't keep his mouth shut, constantly interrupting his guest without ever really cornering him, screwing up the metaphors and missing point after point, while the guest blew clouds of weasel-language which the host made no real effort to dispel. What was the "dishonest" behavior about? Are Gibson's counterarguments valid? Did Righthaven go after people who were small, or people who were innocent? How much trouble is Righthaven really in, and does it have a snowball's chance of making further profit by these suits? All I would know at the end of the interview was that Gibson was unwise to go on the show (and that the show isn't worth watching).

    Crucifying a visitor on camera is an art, it requires real debate skill and a quick mind, not just a loud voice and a friend in the control booth.

     

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      identicon
      Anonymous Coward, Jun 24th, 2011 @ 7:24pm

      Re: *yawn*

      He reminds me of Jim Cramer on CNBC. I used to watch that show religiously, but now I can't change the channel fast enough when it comes on because he's so obnoxious. That and the fact he badmouthed a stock one day that I was into very deep... That hurt. Bad.

       

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  •  
    identicon
    Anonymous Coward, Jun 24th, 2011 @ 2:35pm

    Abolish Copyright! (If for no other reason than to put this @$$ out of business.)

     

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  •  
    identicon
    Anonymous Coward, Jun 24th, 2011 @ 2:47pm

    I just checked the docket in the Democratic Underground case, and they have until Tuesday the 28th to turn in their brief showing cause why they shouldn't be sanctioned.

    Even more interesting, Judge Hunt signed an order today allowing the "bad ass litigatrix" Dale Cendali to appear in the case as attorney for Righthaven and Stephens Media.

    Guess they called in the heavy-hitters for support.

    Her info is here: http://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=9692

     

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    •  
      identicon
      dwg, Jun 27th, 2011 @ 3:52pm

      Kirkland? REALLY???

      Wow. I thought Kirkland had better clients with whom to make pro-copyright precedent than Righthaven. This is a firm in trouble, needing a buck. Sad to see.

       

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    icon
    aiming4thevoid (profile), Jun 24th, 2011 @ 2:48pm

    The times they are a-changing...

    I'm surprised that no one has pick up yet on his justification for the existence of his company, namely "send[ing] out a thousand or a million cease and desist letters"

    I'd argue that if millions of people are behaving in a manner that goes against current civil law, it is time to change that law as it is no longer a reflection of the current social norms and ethic.

     

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  •  
    identicon
    Scote, Jun 24th, 2011 @ 3:04pm

    "They teach us not to lie to the courts in law school since attorneys are "officers of the court." ;)"

    Yeah, that has always been a curious claim, being "officers of the court." But you don't get a cool badge or anything, and you still have to go through the metal detectors... :-o

    As to lying, I guess that means you aren't supposed to make misstatements of fact. But you are, it seems, allowed to make misleading by deliberate omission, as, for example, Gibson does several times in the interview. Kind of like the Fairy race in some tales, where the Fey are know for being unable to ought right lie but are experts in the practice of deceit.

     

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    •  
      identicon
      Anonymous Coward, Jun 25th, 2011 @ 11:54am

      Re:

      Yeah, that has always been a curious claim, being "officers of the court." But you don't get a cool badge or anything, and you still have to go through the metal detectors... :-o

      A badge would be awesome. "Stop, in the name of the law! I'm a lawyer!" All we get is a membership card to the bar.

      I do have an ABA membership card. I don't think that gets me very much though other than lots of junk mail.

      As to lying, I guess that means you aren't supposed to make misstatements of fact. But you are, it seems, allowed to make misleading by deliberate omission, as, for example, Gibson does several times in the interview. Kind of like the Fairy race in some tales, where the Fey are know for being unable to ought right lie but are experts in the practice of deceit.

      That's called "being a good advocate." ;)

       

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      •  
        identicon
        dwg, Jun 27th, 2011 @ 3:54pm

        just to be clear

        Material omissions are forbidden by every bar's rules of ethics. Every. Single. One. Whether you choose to obey is up to you, lawyers--yours being a self-regulated profession.

        Choose wisely.

         

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    icon
    Karl (profile), Jun 24th, 2011 @ 10:49pm

    More...

    And the hits just keep on comin'. In South Carolina, the lawyers for Dana Eiser filed an amended answer and counterclaim. It is 119 pages long and includes 56 separate defenses, 23 of which are causes of action, including a civil RICO charge.

    Now, this is clearly overkill, but in the defendant's words:
    Defendant Eiser apologizes for the length and complexity of this pleading, but given the procedural rules regarding compulsory counterclaims, has no choice but to assert all good-faith claims it has against Righthaven. Further, Righthaven’s previously-filed motion to dismiss repeatedly attacked Eiser’s counterclaims as factually insufficient. Eiser hopes to have addressed Righthaven’s concern with this pleading.

    I heard about it from Righthaven Victims, which has the defenses as a bullet list. If you really want to, though, you can read the whole thing on Scribd.

     

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      Karl (profile), Jun 24th, 2011 @ 11:11pm

      Re: More...

      You know, I'd read the whole thing. There is a lot of dirt in there. If true, the RICO charges are not unlikely. (I'll admit, that's a big "if.")

       

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      •  
        identicon
        Scote, Jun 25th, 2011 @ 12:25am

        The whole thing...

        Well, I just read the whole thing. That is a nicely written answer. It is clear, well argued and is readable by ordinary lay folks like myself. And the plausibility of the defenses and counter-claims makes you wonder if Gibson is checking out one-way flights to the Caribbean.

        One of the most important aspects of the answer and counterclaim is that the defendant requests that the court order the corporate veil--the double layer of LLCs--pierced so that the owners of Righthaven will be personally responsible for the liabilities of the company should Righthaven loose court cases and have to pay damages and attorney's fees, something that seems likely in the near future. The defendant alleges that one of the prime purposes of Righthaven's structure was to insulate Righthaven clients from such liability through an under funded company, one the key players could just walk away from should it be sued into bankrupts. Piercing the corporate veil is just what is needed to inspire Gibson into some ethics and personal responsibility--he should be scared of what could happen if he is held personally liable.

         

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          Karl (profile), Jun 25th, 2011 @ 1:30am

          Re: The whole thing...

          Well, I just read the whole thing. That is a nicely written answer. It is clear, well argued and is readable by ordinary lay folks like myself.

          Well, not to burst your bubble, but that's because it appears to be written by people whose understanding of the law is no greater than lay folks like ourselves.

          I mean, half of it is pure fantasy. Some of it is outright wrong: for example, a "work for hire" is not the same as a work done by an employee, and freelancers often use "work for hire" contracts.

          Still, that's the nature of defense filings: throw law against the wall, and see what sticks.

          Interestingly enough, the RICO charge is actually not completely far-fetched. If Righthaven sent out "settlement" letters, when it knowingly did not have the copyright, then it could be considered fraud, and RICO charges might apply.

          I doubt it'll actually hold up in court, but that would certainly make things interesting. Especially to other cases - I doubt the Hurt Locker guys would go ahead with threatening lawsuits (25,000!) if they thought there was even a tiny chance they'd face RICO charges.

          And the veil-piercing demand seems spot on to me. I have no idea if the court will allow it, though.

          At this point, I'm reading it more like a Jackie Collins novel than an actual legal filing: entertaining and sordid, but not entirely believable.

           

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            identicon
            Scote, Jun 25th, 2011 @ 2:40am

            Work for hire isn't what people think it is.

            I can't speak to how knowledgeable the attorneys in this filing are but IIRC work for hire as it pertains to copyright is generally presumptively applicable to employees and not independent contractors. I think people often confuse "work for hire" with "work for pay", but as copyright is concerned the two are not synonymous. The work of an independent contractor is copyright by that contractor--he or she is employed by his or her self--not by the company that contracted them absent a specific written contract that assigns copyright to that company. Heck, by copyright standards, when you are on vacation and ask a stranger to take a picture of you and your spouse with your camera that picture is automatically copyright by the stranger and you have no right to it absent a written transfer of copyright.

             

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              Karl (profile), Jun 25th, 2011 @ 5:10pm

              Re: Work for hire isn't what people think it is.

              The work of an independent contractor is copyright by that contractor--he or she is employed by his or her self--not by the company that contracted them absent a specific written contract that assigns copyright to that company.

              Right, but a huge amount of independent contracts do in fact have a written clause that says it is a work for hire. It's standard boilerplate language in graphic design contracts, for example. The notion that someone is an independent contractor does not automatically mean that the work was not a work for hire.

              It sounds like Rosen was contracted to write weekly (or whatever) op-ed pieces. If that's true, the contract probably was a work-for-hire contract, even though he was still considered an independent contractor. I expect Stephens Media probably would not make such a basic mistake, but who knows. Even if they did, that does not make the assignment "fraudulent." (The fact that Righthaven claims ownership does, though.)

               

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              •  
                identicon
                Anonymous Coward, Jun 25th, 2011 @ 5:39pm

                Re: Re: Work for hire isn't what people think it is.

                Right, but a huge amount of independent contracts do in fact have a written clause that says it is a work for hire. It's standard boilerplate language in graphic design contracts, for example. The notion that someone is an independent contractor does not automatically mean that the work was not a work for hire.

                Work for hire is defined in Section 101 of the Copyright Act:
                A “work made for hire” is--

                (1) a work prepared by an employee within the scope of his or her employment; or

                (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
                (emphasis mine).

                 

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                  Karl (profile), Jun 26th, 2011 @ 12:49am

                  Re: Re: Re: Work for hire isn't what people think it is.

                  Work for hire is defined in Section 101 of the Copyright Act:

                  Oh, I'm absolutely not denying any of that. I'm just pointing out that in the real world, where artists work for a living, work for hire contracts are standard. Boilerplate language does often include "a written instrument signed by them that the work shall be considered a work made for hire." If Rosen's situation is as I think it is, it is very likely that the contract included a "work for hire" provision.

                  Even if not, then the contract likely contained an assignment to the LVJR as a condition of publishing. This would make the copyright registration incorrect, but not "fraudulent," since either way the LVJR had ownership of the content.

                  I'm absolutely not stating that this can be assumed. It is absolutely right that the defendants be able to ask for a copy of the contract. I'm just stating that this, by itself, without any showing of the actual contract, is not proof of fraud.

                   

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          •  
            identicon
            dwg, Jun 27th, 2011 @ 4:30pm

            Re: Re: The whole thing...

            "a "work for hire" is not the same as a work done by an employee"

            Actually, it is. There are more types of Work Made for Hire, but one is exactly that: work done by an employee within the scope of his or her employment.

             

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          Karl (profile), Jun 25th, 2011 @ 2:12am

          Re: The whole thing...

          I should mention: despite my belief that half of this filing is wishful thinking, there are a number of interesting tidbits mentioned in it:

          - The defendant did not post the article, and has no editorial control over the website whatsoever. They sued the wrong person.

          - The infringing article was read by "no more than approximately 20 people."

          - The Denver Post encourages users to share their news stories; according to Eiser, their website provides a method to post the entire article elsewhere. (I couldn't find it, but then again I didn't look very hard.)

          - Righthaven went into default status with the Nevada Secretary of State on February 1, 2011. (That is, it did not renew its business license.) No idea if that's still the case.

          - The original author, Mike Rosen, is himself embroiled in a plagiarism controversy.

          - Steve Ganim, one of the lawyers employed by Righthaven and living in Nevada, is not a member of the Nevada bar (though he is a member of the Florida bar). When another defendant made this info public, Righthaven threatened him with a libel lawsuit.

          - After the EFF challenged the awarding of "full freight" attorney's fees, when Righthaven employs an in-house legal team, Righthaven started using outside legal council exclusively. No in-house lawyers are listed as council in this lawsuit. The accusation is that they did this to artificially inflate attorneys' fee awards.

          - But apparently, outside council doesn't actually see that money: Edward Fenno, Righthaven's prior counsel in this action, potentially cited a failure of Righthaven to pay for his services as a basis for dissociating. In his motion to withdraw as Righthaven's counsel in this matter, Fenno referenced Rule 1.16(b)(5) of the South Carolina Rules of Professional Conduct: "Withdrawal is permissible [where] 'the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's service or payment...'"

          Someday, they're going to make a movie out of this.

           

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    identicon
    Boftx, Jun 25th, 2011 @ 10:40am

    Paragraph 3 of the SAA

    While the amendmended agreement is an attempt to get around various defects in the original, they appear to have overlooked some of the language in Paragraph 3, sections 3 and 4 that explicitly reserves some rights of litigation to Stephens Media. In particular, it give SM the right to tell Righthaven to backoff on any given action if the if "...a particular putative infringer is a charitable organization, is likely without fmancial resources, is affiliated with Stephens Media directly or indirectly, is a present or likely future valued business relationship of Stephens Media or otherwise would be a Person that, if the subject of an Infringement Action, would result in an adverse result to Stephens Media."

    I would think that this language strips away any of the protection SM sought to have by supposedly having Righthaven be the party bringing action. It is clear that SM has chosen not to exercise this right in several cases and therefore should share in any liability associated with them.

     

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    ais (profile), Jun 26th, 2011 @ 12:32am

    the guy is kind of good looking actually, so i forgive his
    obvious transgressions!

     

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  •  
    identicon
    Scote, Jun 26th, 2011 @ 9:23am

    Proof needs to be in the suit.

    "
    I'm absolutely not stating that this can be assumed. It is absolutely right that the defendants be able to ask for a copy of the contract. I'm just stating that this, by itself, without any showing of the actual contract, is not proof of fraud."

    I'd say that because the writer is not an employee it cannot be assumed that the paper has copyright. Therefore, the suit should have included a copy of the contract where the reporter assigned copyright to the paper as part of the proof that the paper owned the copyright. Thus, absent such evidence the paper (and subsequently Righthaven) has failed to prove ownership of the copyright and thus lacks proof standing to sue--that over and above all their other lack of standing.

    If they had proof of ownership why didn't they include it in their suit? Are they just lazy and presumptuous? Or do they really not have it. I think their is sufficient reason to suspect they don't own it and to justify discovery on that point.

     

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


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