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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Companies: las vegas review-journal, righthaven, stephens media

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Comments on “Righthaven's Biggest Fan Copies Content As Part Of His Argument Against Copying Content”

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Chronno S. Trigger (profile) says:

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.

Dark Helmet (profile) says:

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!!!

I Got Bupkis (profile) says:

Re: Re: Applicable Quotes

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.

DogBreath says:

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.

Anonymous Coward says:

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.


Anonymous Coward says:

…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

Anonymous Coward says:

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

It’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.

Ikarushka (profile) says:

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.

Anonymous Coward says:

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.

Payback Time says:

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.

Anonymous Coward says:

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.

Anonymous Coward says:

Re: Re: Re:2 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.

Payback Time says:

Re: Re: Re:3 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.

DogBreath says:

Re: 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.

Anonymous Coward says:

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.

Anonymous Coward says:

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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