The issue that those of you defending this order are missing is that the "victim" here is claiming "harassment" by virtue of her hurt feelings.
The speech may be petty and vindictive, but that in and of itself isn't - err, shouldn't be - legally sanctionable behavior. Both parties probably need to grow up, but I'll take his sort of douchebaggery over her censorious brand of entitlement anyday.
I'll close here by exercising my 1st Amendment right to state unequivocally that this self-righteous harlot needs to develop a sense of humor and get over herself.
When ICE started seizing websites at the behest of certain players within the entertainment industry, I started playing a game when government agencies made headlines with actions such as these. I ask: "Is there a competing industry/lobby/company prodding the feds into action?"
I have no idea if such an exercise could be useful here, but perhaps someone with the applicable background can help?
. . . before they find the magic agreement . . . .
As I see it, there "magic agreement." What's become apparent through all these briefs and orders is that the SAA has no substance. Some of the rulings have hit on this point. Drafting the "perfect contract" still won't do Righthaven any favors, as what matters is how their relationship operates in the practical world, not the world that exists on paper.
The SAA was pretty damaging, but I doubt it creates liability for fraud in and of itself. Never say never, but I can't imagine there being any cold evidence that Righthaven or Stephens knew the scheme was fraudulent.
That being the case, they were terribly misguided and this mess was reasonably forseeable. All their post hoc disingenuous excuses have not done them any favors.
The biggest question I had when this whole saga began to unfold was "Why set up the scheme this way?" That is, why this transfer-license back relationship? I initially and still do believe it was partially an attempt to reflect any negative PR away from Stephens Media (and may I add, dynamite work on that front, boys). And there's also the attempt to contract around Silvers.
The worse this gets, the more I believe that this worst case scenario was probably contemplated by the principals and Righthaven was set up to absorb liability in Stephens' place. Stephens may have hoped that if its shell went bankrupt and became judgment proof, the story would simply end there.
...while she retains the rights, apparently she is giving her publishes some cut....
This little bit interested me too. Perhaps someone with more insight into this industry can indulge me: is this sort of concession typically made out of goodwill, bona fide contractual obligations, or is it just a bone tossed to avoid litigation?
The Silvers passage would be even more relevant if it came from the Majority opinion.
When supporting any position by citing to a portion of case law other than a majority opinion, e.g., concurrence, plurality, and especially a dissent, it's prudent to make that fact known. In fact, it's deceitful to hide it.
Is anyone willing to give the AC the benefit of the doubt that it was an honest oversight?
I think you're focusing too much on form without giving any regard to substance of the agreement. Sure, the SAA states Righthaven took ownership and then licensed it back to Stephens. I don't see how this can be denied going by the bare language of the contract.
But from a practical standpoint, that language is just fluff. It's an attempt to let Righthaven sue without really taking ownership. In reality, the agreement operated to do nothing more than give Righthaven the right to sue. It's disingenuous to pretend that those clauses in the SAA gave Righthaven anything else. The judge thankfully saw through it.