Okay, yes, mea culpa, it's Telluride that was sued, not Elliot or WB. It changes nothing: It was Telluride that was about to cause the breach.
WB apparently had an agreement with Franklin. That's what the lawsuit says. And part of the agreement was that WB had a duty, and another part of the agreement was that WB had to pass that same duty on to anyone it sold any rights to; and that, should it happen, that party in turn had a duty to pass that duty on to anyone it sold any rights to. That's what "and assignees" means, it means that you can't shirk the responsibility by selling the rights to your shell corporation so the shell corporation can do what it wants.
So however Telluride got the rights, it has that duty, because it is an assignee. Maybe it wasn't told of the duty, in which case Elliot or WB already breached the contract. That does not change Telluride's role as assignee; the contract binds it whether it knew about the duty or not.
Someone sells you a property, and there's an easement on the property. You didn't find that out, for whatever reason, and the seller carefully neglected to mention it. But when the owner of the easement shows up to claim his right, you are stuck: neither your lack of care nor the seller's breach overcomes the right of the easement owner.
Franklin owns, or claims to own, the equivalent of an easement in this property. If her lawsuit is true, she is entitled to relief because of the right that she owns: It's not a First Amendment issue and not a copyright issue in that case; it's a contract issue.
(Copyright is about binding people you do not have a contract with, in order to protect your property rights. That's very different than where you have an explicit contract right.)
It is entirely premature to say, "She took their First Amendment right," if her property right is antecedent. It is just as premature to say this is a copyright issue, even though there's a touch of that claim in the lawsuit. The primary claim is an issue of property ownership that, as stated, means they owe her action before they can take action.
I don't see what is so hard to understand about this.
Sorry, this one is over the top. Assuming the filing is accurate, the owner/assignee of the film had an affirmative contractual duty to obtain Franklin's permission before showing it; and possibly to make payments that were never made. This takes it out of the realm of IP law and into the realm of contracts--and breach of contract.
Elliot, who is the putative assignee, may not have been told of this when he purchased the rights, which actually makes WB the party that committed the breach. But if Elliot were to be allowed to show it, the specter of irremediable harm raises its head, also know in our world as, "Ha, ha! We already showed it! What are you going to do about it?"
Fait accompli. Blocked before showing, Franklin has leverage over Elliot (and possibly WB, which I suspect failed to disclose the duty to Elliot). They're cornered: it must be resolved before showing. After showing: WB and Elliot can drag out the court arguments for years; gee, where did their urgency go?
Brought to a judge's attention in time, an incipient contract breach promising irremediable harm will always get an injunction.
From the beginning, one of the "features" of HIPAA was access by and for the government. For example, medical record exchanges between organizations were prohibited by HIPAA, unless the governement was an intermediary in those exchanges.
It's quite clear that the paragraph cited was intended to allow unrestricted access by the government. To wit:
To comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or an administrative request from a law enforcement official (the administrative request must include a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used).
This might as well be written, "Law enforcement officers are invited to issue administrative requests." So let's look at an example of a compliant administrative request:
We hereby request the information for every patient seen by your organization in the last ten (10) years. This is relevant and material to our search for terrorists, and the names must be included or it is no use to us.
Let's see: (1) relevant and material, check; (2) specific and limited in scope, check; and (3) de-identified information cannot be used, check.
So my guess is that the DEA will get a pass, because HIPAA was designed to allow them to do this: it is deliberately promiscuous.
Wit the pressure to make showy cases, the police tend to overlook justice in pursuit of arrests. To them, credibility of the CI is irrelevant--so long as they can dress up that CI statement enough to make probable cause.
It's like CI roulette. Got a suspicion on someone? Spin the CI wheel and see which one we can get to make enough of a statement for probable cause for a warrant.
At least there was a real CI in this case, pathetic as he is. A lot of times I suspect one officer calls the other from a phone on the street. I like to imagine them arguing over whose turn it is to be the informant.
MPAA and RIAA both see copyright infringement everywhere. If they could, they would nail you for infringement of a song because you pressed one key on a piano and OMG that note is in their song. They see copyright infringement as a bunch of nails standing above the surface, that must be smashed flat-in by every hammer they can bring to bear. In fact, they see every content that is not theirs as infringing; simply because non-MPAA-non-RIAA content exists it is taking money from their pockets.
They forced YouTube to implement ContentId as a hammer, and if the hammer didn't drive every nail in, MPAA and RIAA were going to sue YouTube out of existence. Basically, ContentId is designed to be MPAA and RIAA's hammer. Naturally, it hammers everything: because that's what MPAA and RIAA want it to do, hammer everything.
Not that it helped YouTube: MPAA and RIAA are still going after them because there's still all that other original content on the site that is taking money from MPAA and RIAA's pockets.
So even as you argue that ContentId is "An unnecessary headache", MPAA and RIAA are busy demanding that it block even more content.
When will people learn and stop giving these hyper-sensitive companies free advertising? With a company so dead set on no one mentioning their name then fine: No buzz. No parties. No reviews. No word of mouth. Complete echoing silence.
If they want their product mentioned, let these jerks pay millions for every lousy word! Maybe when they're paying millions for advertising while their competitors get millions from free buzz, they'll start to get a brain. And if they don't, good riddance.
This looks to me like these ContentId takeovers, by parties like DrewMCGoo72, are outright appropriation of copyrighted material: both proceeds and rights. As such, it seems to me it should be subject to the $150,000 per song penalty for copyright theft.
And Horus Music is a willing accomplice. So why aren't they being sued for, say, $150 million for aiding and abetting copyright theft of each 1,000 songs?
I think USTR should charge a flat $250 million per seat for corporate representatives to take part in trade treaty negotiations. (EU should do the same.)
Given all the influence they have in the process and the protection they receive, companies should have to pay for the right to impose their dictatorial desires on the rest of us. The massive profit these treaties simply hand over to these sovereign corporations makes a fee like this mere pocket change; even if it is more than those corporations will ever pay in taxes.
I doubt if they tell any significant number of people. It's right there, stated boldly in their exceptions:
d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations[.]
Now let's see. They can't tell you:
* If you're on the do not fly list, because that would endanger sources, methods and intelligence operations. * Why they're recording all the phone metadata, because that would endanger sources, methods and intelligence operations. * How they interpret the law, because that would endanger sources, methods and intelligence operations. * How many NSL letters they issued, because that would endanger sources, methods and intelligence operations.
I could go on, but what's the point. The thing that really matters is: "We cannot reveal [anything], because that would endanger sources, methods and intelligence operations."
Now here they are, maintaining they warn people of impending attacks, patting themselves on the backs, implying that doing this does not endanger sources, methods and intelligence operations. Nonsense. Because when I wrote that fill-in-the-blank "[anything]" above, I meant it. The intelligence agencies are like black holes: Information falls in, never to be seen again.
The court opines that Bell meant (admitted that he meant) the rap verses to get back to the school, but that is a read herring. Suppose Bell had published this the day after his final departure from school: What would have happened then? Charge him with a crime, "Because we can't suspend him anymore." Any such case--and the prosecutor that brought it--would be thrown out of court so fast the prosecutor's hair would smoke. Would it truly offer less disruption to the school in that case? (Of course not.)
Which leads to the worst part of the argument, their remarkable conclusion that Bell's rap contained extremely violent imagery, which, "threatened, harassed, and intimidated school employees." But only a moron could conclude that the piece actually constituted a serious threat...even if they were unfamiliar with rap, in which such imagery is staple. If we busted everyone who said, "I'm going to kill [that moron]," who would feed the prisoners? Without a meaningful threat, where is the intimidation?
Does the rap offer a potential for disruption? Darn right: having your coaches accused of overt racism, sexism, probable sexual abuse and use of illegal drugs does indeed have a potential to disrupt the school. Of course, with that, we see what this is really about: the coaches must be a winning coaches. Just like we saw in the Sandusky scandal, anything goes so long as a coach is winning; apparently even an Appeals court must bow and scrape before a winning coach.
Taken on whole, the only thing I can say about this (as I exercise my rapidly evaporating Right to Free Speech) is that: The Fifth Circuit group picture sure must look funny with that many judges having their heads shoved that far up their own asses.
This will never go anywhere. Companies will simply whine that, "It's too hard to overcome piracy if we have to ensure everything we take down is actually ours." Congress will give in to the whine.
What Congress might go for is more of a proof-of-ill-intent. Errors will happen, yes, but if your erroneous executed take-downs exceed 2.5% of your executed requests during any one month period, you should become subject to penalties of $100 to $5,000 per improper take-down, depending on malice.
($100 per patient data exposure per day is what HIPAA uses, and believe me, we do pay attention to that. Expose 1000 patients for a 30 day period and that adds up to $3 million.)