…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

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.

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.