by Mike Masnick
Thu, Jul 11th 2013 8:04pm
by Mike Masnick
Wed, May 8th 2013 12:54pm
from the oh-really-now? dept
In an extended interview with AVN news, Steele goes even further than his earlier comments promising an appeal and complaining about Judge Wright:
“The hearing regarding me in March was 12 minutes long and there was no evidence or testimony admitted. I have never had any ownership interest in AF Holdings, Ingenuity13, or Prenda Law and no evidence otherwise was ever presented. I am not an attorney in this matter, and have never practiced law in California. In fact the first time I heard of this case was when Mr. Gibbs told me he got an Order to Show Cause in February 2013 regarding this case.”Again, this is pretty funny on multiple levels. The claim that he didn't even know about the case until February is almost laughable, especially considering that Gibbs noted that he took regular instruction on this very case from Steele. Furthermore, it's well known that Steele reads the various anti-copyright trolling blogs regularly -- and they've been following this case for quite some time. As for the claim that they "were not allowed to make argument," again, that's not true. Their lawyer told the Judge that they were pleading the fifth.
He continued, “I would also comment that the attorneys representing myself, Paul Hansmeier, Paul Duffy, and the others were not allowed to make argument nor were we allowed to present witnesses. And normally with orders regarding sanctions, the Court will point to evidence, testimony, or something to explain the sanction. In this order, there is nothing.”
In another interview, with the LA Times (where the reporter appears to have spelled about half the participants' names wrong), Steele gamely predicts that "There's going to be a lot of egg on people's faces" after his appeal. We'll see about that.
But... back to the AVN story. Steele goes back to attacking the opposing lawyer, Morgan Pietz, Judge Otis Wright and (of course) the EFF. He then claims (incorrectly, mind you) that copyright holders are "winning the vast majority" of these kinds of trolling copyright cases. He's pretending that this is still about copyright trolling, not massive fraud on the court for which he's almost certainly about to be investigated by federal prosecutors for possible racketeering charges and tax evasion, because a federal judge has suggested that both areas need to be investigated. His only response to all of that is to say that the Illinois State Bar investigated him already and was okay with his actions. We'll see about that as well.
But the really amazing part is that, after insisting that he has nothing to do with these lawsuits, he tells AVN that Livewire Holdings, the master shell corporation involved in all of these shenanigans, is filing new cases this week:
For his part, Steele told AVN that it is his understanding that Livewire Holdings, one of the entities identified by Judge Wright—by way of an actual Prenda relationship chart included in the order—as being a member of the Prenda family, “is filing multiple new cases this week."I've said it before, but Steele really reminds me of people I've known who think they're a hell of a lot smarter than they really are. They think (1) that they've discovered a brilliant loophole that no one else could possibly figure out and (2) that they can talk their way out of anything. In Steele's case, each time he opens his mouth, it's likely he's digging himself a slightly deeper hole. He's hired expensive lawyers. You'd think they'd tell him to shut up already, because he's doing his own case a lot more harm than good. Of course, if it's true that Livewire is still filing new cases, after a federal judge has called them out on this behavior (and ordered his ruling be given to every court involved in any litigation involving Livewire and all of Team Prenda), that may come back to haunt him even more.
“Hopefully,” he added defiantly, “the pirate that got away in this matter will be caught and brought to justice down the road.”
by Mike Masnick
Tue, May 7th 2013 2:30pm
from the no,-he's-not-a-fan-of-abusing-IP-law dept
Steele on Tuesday told XBIZ that he plans on appealing Wright's order with the 9th U.S. Circuit Court of Appeals.Actually, Judge Wright did not base his order on just that eight-minute hearing (I believe it was actually 12 minutes, but who's counting?). He based it on all of the piles upon piles of evidence presented before that, combined with Steele and his partners' decision to refuse to testify. For Steele to now complain that "there was no testimony, no evidence introduced" is pretty laughable, since the reason there was no such information brought forth at that particular hearing was mainly due to Steele and his partners' own decision. However, there was plenty of testimony and evidence introduced previously, and Wright's order was based on that. The whole point of that last hearing was to give Steele, Hansmeier and Duffy a chance to respond to and refute that evidence. They did not do so. To now complain about it is pretty funny.
"Obviously we don't agree on the ruling," Steele said. "Judge Wright based his order on an eight-minute hearing where there was no testimony, no evidence introduced. Clearly Judge Wright does not like this type of litigation and he's no fan of intellectual property law."
Separately, the argument that Judge Wright "is no fan of intellectual property law" is equally silly. Wright seems pretty clearly to be annoyed, not at intellectual property law itself, but by the clear abuse of those laws.
by Mike Masnick
Wed, Feb 6th 2013 3:56pm
from the not-looking-good dept
Not surprisingly, Righthaven's new lawyer, Erik Syverson, is discovering he has an uphill battle ahead of him.
Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.If you don't recall, the key issue was that Righthaven never really had any control over the copyright in the cases. They involved content from the Las Vegas Review-Journal, but the agreement between Righthaven and Stevens Media (the owner of the LVRJ) made it clear that the LVRJ had full say in things and could take back the copyright at any time. In effect, the only thing really transferred to Righthaven was the "bare right to sue" and you can't do that, because such a "right" is not a separate right of copyright. You can only transfer one of the actual listed copyright rights (e.g., the right to reproduce, distribute or perform) and with that comes the ability to sue. The Silvers case referred to above is Silvers v. Sony Pictures which makes that point clear.
"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."
Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.
That said, as Joe Mullin reports in the link above, the appeals court justices seemed somewhat less bought into the idea, raised in the Hoehn case, that the use of the LVRJ material was fair use. That's unfortunate. It was a good ruling that found that even when you repost a full article it can be fair use. The argument was mainly that when Wayne Hoehn posted it, it was not for the same purpose or in any way competitive with Righthaven (who merely wanted it to sue). But the court wasn't as receptive to that argument:
Hopefully the panel reconsiders before issuing its ruling. The way Hoehn used it was not the same way that Righthaven or the LVRJ were using it -- and it's that aspect that was transformative. Still, it won't surprise me if that argument fails, but it will be unfortunate. Either way, if Righthaven actually "wins" on that point, it won't much matter for the company, considering its likely to lose on whether or not it even had standing to sue in the first place. However, for those of us concerned about fair use, and how widely it can be applied, this second issue may be a lot more important. Having a strong fair use ruling on the books concerning the reposting of full content (in a particular context) would be a good thing to have, though it sounds unlikely.
First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"
Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.
by Mike Masnick
Wed, Oct 3rd 2012 11:53pm
from the good-move dept
Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.This is a much more reasonable process that doesn't allow people claiming copyright to effectively take over a video regardless of whether or not the video's uploader disputes it. This probably should have happened a long time ago, but it's good to see it finally has.
The announcement also claims that their system is becoming better at avoiding "invalid claims." It sounds as though there's some sort of threshold now, where if something is borderline, it goes into a manual review queue, rather than automatically being taken down. So the more "gray area" cases will get a human review first.
We'll see how all of this works out, but it's good to see that Google is taking many of the complaints about ContentID's overeager takedowns seriously.
by Mike Masnick
Wed, Feb 1st 2012 12:05pm
the pirate bay
from the jail-time-may-be-imminent dept
We’re not surprised by this. The previous court cases has been filled of corruption. From having the minister of justice pressured by the US to illegally make a case of TPB, through the police officer responsible for the investigation (Jim Keyzer) “just happened” to get a job at Warner Brothers the weeks before I myself got promoted from a witness to a suspect, to the judges in the court cases being either board members, or in one case the actual chairman of the board, for the swedish pro-copyright society, it was clear to us that the supreme court – where many of the judges make a lot of money on their own copyrights – would be hard to persuade to take the case. Even though most of the public would want the case tested there. Even though it’s one of the most important cases for all of the EU.Another view worth reading comes from my friend Martin Thornkvist, who is from Sweden, and ran a record label in Sweden and has worked with a bunch of Swedish artists. You might think he'd be against The Pirate Bay, but he's quite upset about this ruling, noting that it makes him both sad and angry. He points out that it makes him sad, because the entertainment industry is still fighting their fans. He notes that when they stop fighting their fans -- as the record labels finally realized with Spotify -- piracy almost disappears. Though he also points out that without The Pirate Bay, Spotify almost certainly would not have existed. And that's the part that makes him angry. Despite helping to push the world forward, the thanks they get is jail time:
I’m angry because the founders of The Pirate Bay don't get the recognition they deserve. For pushing the development of new services further and forcing the media industries to distribute their content in a manner that people want, (ie not plastic discs and windows policies).Meanwhile, the site itself has moved to a .se domain, assuming that the US government is likely to seize their .org before too long. Because, you know, that'll really stop file sharing...
by Mike Masnick
Wed, Dec 28th 2011 4:22pm
from the do-they-do-anything-right? dept
Appellant has failed to comply with the court’s order filed December 14, 2011. Accordingly, this appeal is dismissed. Ninth Cir. Rule 42-1. The parties shall bear their own costs on appeal.Amazingly, a big part of the reason Righthaven is even in this situation, appealing the Newman case concerning his website FacePunch.com, is that Righthaven missed earlier deadlines on the case as well. So it appealed... and now it's totally failed to comply with the earlier court order here too.
This order served on the district court shall act as and for the mandate of this court.
Righthaven seems to invent new and interesting ways to display incompetence almost every day.
by Mike Masnick
Wed, Nov 23rd 2011 2:14pm
from the and-then-cites-a-case-that-proves-it-wrong dept
- The judge erred in ruling on fair use at this point in the process.
- The judge's fair use analysis itself was wrong
The second argument focuses on the actual fair use analysis, and suggests that using an entire work cannot be considered fair use. It relies, almost entirely on the Worldwide Church of God case in which the appeals court ruled that a church was infringing on another church's book, by distributing the whole thing, despite it being a nonprofit. The two key issues here are whether or not the non-profit status matters, as well as whether or not it can still be fair use when the whole thing is used. The WCOG case said that the full use was not fair use and that even as a non-profit, since it was used for seeking donations, it worked against fair use.
While I have trouble with the reasoning in the WCOG case on many fronts, I'm not sure that it will help Righthaven all that much here. The distribution of the book in that case was much more closely tied to raising funds than a nonprofit posting a news article on its blog. Claiming otherwise is a stretch. As for the 100% use, Righthaven has very little argument here at all. Multiple courts have found that full item use can still be fair use... including in one of the cases Righthaven cites for its own argument, Hustler Magazine, Inc. v. Moral Majority, Inc.,. In fact, if you read that ruling, you'll see the court admitting that while it had suggested in the past that wholesale copying shouldn't be fair use, in this case it was reminded that "copying of an entire work does not preclude fair use." In other words, the very case Righthaven cites seems to argue against its own point here. But isn't that just like Righthaven?
by Mike Masnick
Tue, Nov 1st 2011 3:16am
Righthaven Loses Track Of Its Many Cases; Discovers Four Days Late That It Missed Deadline In Appeal
from the so-professional dept
Righthaven’s counsel originally requested a telephonic 14-day extension of time to file its opening brief in this matter on October 27, but was advised that its opening brief was not due under November 28, 2011. Upon further inquiry, it appears that the opening brief deadline provided was for an associated appeal in this action concerning an award of attorneys’ fees and costs (Case No. 11-16995). Righthaven discovered this apparent misunderstanding today, October 31, 2011, which is one business day following the October 28, 2011 filing deadline for its opening brief.Meanwhile, Hoehn's lawyers, from the Randazza Group, aren't buying the excuse and are asking the judge not to grant the belated extension request:
Defendant Wayne Hoehn ("Hoehn"), through counsel, opposes Righthaven LLC’s ("Righthaven’s") Motion for Extension of Time to File Opening Brief (the "Motion"). (Doc. # 4.) Righthaven’s request for an extension is untimely, sought four days after Righthaven’s brief was due - October 27 (Doc. # 1), not October 28, as Righthaven’s counsel misstated in the Motion (Doc. # 4 at 2). The docket’s plain language belies Righthaven’s claims of diligence, as even a cursory check would have revealed, immediately, the appellant’s briefing deadline. Moreover, a review of this Circuit’s law and the context in which Righthaven brings this motion reveals that it is bereft of good faith as well.Hoehn's lawyers make the case that just the merest ability to check the details would have shown the timing on the case, and Mangano's failure to do so should not result in delaying the case any further.
Righthaven also attempts to blame the Court’s clerk for its untimely motion. (Doc. # 4 at 2). Righthaven’s inability to track its appeals before this Court is not the fault of Court administrators. With six appeals pending before this District – and not a single brief filed despite numerous extensions sought – it is all the more important that Righthaven diligently prosecute its appeals. To date, it has not done so, nor offered any legitimate excuse for failing to abide by the original briefing schedule imposed in a single appeal before this Court.It's somewhat amazing that Righthaven ever accomplished anything, given the way its lawyers have handled these cases.
The instant untimely Motion (Doc. # 4) is Hoehn’s first indication that Righthaven had any issue with the briefing schedule. Having not voiced any objections to the Court’s earlier deadlines, Hoehn’s attorneys have made travel plans, holiday plans, and scheduled other litigation matters with this original schedule in mind. (Decl. of J. DeVoy.) To allow Righthaven’s counsel to attempt to change the clock after time has run out will create serious prejudice to Hoehn’s counsel.
by Mike Masnick
Fri, Sep 2nd 2011 1:16am
from the noticing-a-pattern? dept
It's beginning to look like that sort of limited list is all a part of the bigger plan by such [insert random smallish number here] strikes plans. Some "leaked" documents in the UK show that the government (and take one wild guess who asked them to do this...) asked the regulators at Ofcom to limit the ability to appeal:
The Government has asked Ofcom to remove a catch-all in the appeals process which allowed appeals to be made on "any other reasonable ground."It looks like Ofcom may have pushed back and doesn't appear supportive of such an effort, but it really does make you wonder what the industry is so afraid of. If it gets to punish people based solely on accusations, it's flat-out crazy not to allow them to appeal on any reasonable basis.
This catch-all was previously thought necessary, as the list of grounds for appeal was "non-exhaustive" and may need updating as technology evolves. Justice for internet subscribers is now dependent on Ofcom coming back with an exhaustive list of appeal grounds in the redrafted IOC; and, keeping this list up-to-date as technology evolves (and, presumably, updating the legislation in Parliament and notifying each update to the EC).