from the simon-says dept
While we were just discussing Judge Zilly in California smacking around one of the front-attorneys for a shell-company of the infamous Guardaley company (which pretends to be able to detect copyright infringement from Germany) another case was working its way through the courts. Judge Zilly focused his efforts on just how little evidence there is for the actual existence of many of the shell and parent companies that show up with Guardaley evidence, as well as whether or not Guardaley’s “experts” even actually “exist.” This other case in Oregon seems to have pointed out that yet another Guardaley front company can’t even get the basics of standing in copyright law right and may well have tried to fool the court into thinking it had standing when it didn’t.
This case concerns a company called Fathers & Daughters Nevada, LLC, which sued Lingfu Zhang for pirating the film Fathers & Daughters using bittorrent technology. The problem that resulted in Judge Michael Simon issuing a summary judgement dismissing the case with prejudice is that F&D Nevada doesn’t actually have the copyrights in question, having signed it all away to a third party.
Plaintiff was the original copyright claimant for the movie, but it has transferred all of its exclusive rights under the Copyright Act to other entities not party to this case. Plaintiff’s agreements secure to it no more than the right to sue, which is not one of the exclusive rights under the Copyright Act, and which has repeatedly been found inadequate to confer standing in this Circuit. Since Plaintiff fails the first prong of a copyright claim under Feist, this action should be dismissed with prejudice. Plaintiff is not the owner of any relevant exclusive rights under 17 U.S.C. § 106, and therefore lacks standing to sue under Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013).
Now, I never went to law school or passed a bar exam, so I had to reach out to a couple of my lawyer friends to be sure, but it turns out you totally can’t sue over copyrights that you don’t actually have. Isn’t that crazy? It would seem to me that any real big boy lawyer representing a seemingly shady almost-company backed by a German anti-piracy/extortion outfit would, like, totally check on that sort of thing before agreeing to represent them all in such a hilariously ill-conceived lawsuit. I mean, it’s not like the Righthaven debacle that the judge here relied on wasn’t all over the news when it happened. Anyone lawyer involved in copyright trolling should at least know about what happened with Righthaven, since it wasn’t that long ago that that firm also tried to sue over copyrights it didn’t actually hold. But, then, not being very good at their jobs is par for the course for these Guardaley-backed non-entities.
So is getting really shady in the courtroom, of course. So, when the issue of standing was raised to F&D, it should not surprise anyone that the company simply tried to fudge the evidence, and did about as good a job at it as a six year old trying to cover up eating all of the family’s chocolate brownies.
Well after this case had been filed, and after Defendant called the standing defect to Plaintiff’s attention, Plaintiff produced an undated agreement among itself, EXCLUSIVE SALES AGENT and DISTRIBUTOR 2 entitled “Anti-Piracy And Rights Enforcement Reservation of Rights Addendum.” (Plaintiff production FND-16-01443-01399, Exhibit G) Upon information and belief, the Undated Addendum was created after the present action was originally filed, and therefore cannot cure the standing defect. See Righthaven, 716 F.3d at 1171-72 (“permitting standing based on a property interest acquired after filing is not one of” the exceptions to the general principle that “jurisdiction is based on facts that exist at the time of filing.”). In any event, the Undated Addendum does nothing to convey, reconvey, or unconvey any exclusive rights in the copyright to the movie in suit. Its null effect on Plaintiff’s standing to sue is discussed in further detail below.
I’ve read this part of the judgement several times and I’ve concluded it totally helps if you mentally picture the lawyer for F&D presenting the court with this undated addendum with chocolate brownie all over his face, swearing he didn’t just make all of this up on the spot. Either that, or I’m just hungry at the moment.
Regardless, what’s clear is that these shell games that Guardaley and its attending entities play has nothing to do with justice, has very little to do with actually valid law, and takes on every appearance of an extortion racket rather than any sort of legitimate rights enforcement. What chills the bones somewhat is the thought that these tactics must work some of the time in the courtroom or else they wouldn’t be tried over and over again. Hopefully judges like Zilly and Simon will really sink the justice system’s teeth into these people and refuse to let go.