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Righthaven Hit With Class Action Counterclaim

CmdrTaco posted more than 3 years ago | from the tag-yer-it dept.

The Internet 91

Hugh Pickens writes "Steve Green reports that one of the website operators accused of copyright infringement by Righthaven has retaliated, hitting the Las Vegas company with a class-action counterclaim, charging that defendants in all 57 Righthaven cases in Colorado 'are victims of extortion litigation by Righthaven, which has made such extortion litigation a part of its, if not its entire, business model.' The counterclaim says Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that's not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, among other things. The claim seeks an adjudication that Righthaven's copyright infringement lawsuits amount to unfair and deceptive trade practices under Colorado law, an injunction permanently enjoining Righthaven from continuing the alleged unfair and deceptive trade practices, an unspecified financial award to the class-action plaintiffs for damages as well as their costs and attorney's fees."

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One more thing they should have asked for (5, Insightful)

Nidi62 (1525137) | more than 3 years ago | (#36159130)

Disbarment of the lawyers employed by Righthaven.

Re:One more thing they should have asked for (5, Funny)

Anne Thwacks (531696) | more than 3 years ago | (#36159234)

Somewhat optimistically, I misread this as disembowellment of the lawyers. Even Shakespeare would be impressed if that happens.

Re:One more thing they should have asked for (0)

Nidi62 (1525137) | more than 3 years ago | (#36159260)

Somewhat optimistically, I misread this as disembowellment of the lawyers. Even Shakespeare would be impressed if that happens.

No, no. The disembowelment should be reserved for the people that started Righthaven, and other patent/copyright trolls.

Re:One more thing they should have asked for (2)

blair1q (305137) | more than 3 years ago | (#36159358)

And then again, the judge may find all of this countersuit's claims true, yet still find merit in what remains of Righthaven's suit.

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36159366)

One can never go too far with disembowelment, once started. I say we disembowel everyone associated with Righthaven, from space. It's the only way to be sure.

Re:One more thing they should have asked for (1, Funny)

Opportunist (166417) | more than 3 years ago | (#36159716)

Ran out of sharks with lasers?

Re:One more thing they should have asked for (1)

slackbheep (1420367) | more than 3 years ago | (#36162880)

I offer a hybrid solution: Drop these laser enhanced sharks from orbit.

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36159418)

Somewhat optimistically, I misread this as disembowellment of the lawyers. Even Shakespeare would be impressed if that happens.

No, no. The disembowelment should be reserved for the people that started Righthaven, and other patent/copyright trolls.

So still hypothetically speaking, on behalf of the entire executive staff of Sony Music Entertainment, EMI Group, Warner Music Group and Universal Music Group: does the disembowelment happen before/during the hanging, or before the quartering?

Re:One more thing they should have asked for (5, Informative)

Anonymous Coward | more than 3 years ago | (#36159596)

So still hypothetically speaking, on behalf of the entire executive staff of Sony Music Entertainment, EMI Group, Warner Music Group and Universal Music Group: does the disembowelment happen before/during the hanging, or before the quartering?

First, you hang them---but not fatally---they dangle painfully for a while.

Second, before they have expired from the hanging, you draw them---as in draw out their bowels and burn them before them.

Third, you quarter them---and let the pieces rot on the city gates pour encourager les autres

Sheesh, kids these days... don't they know anything?

Re:One more thing they should have asked for (1)

JosKarith (757063) | more than 3 years ago | (#36163614)

I always thought the quarters were taken to the 4 corners of the kingdom to show everyone what happens if you piss off the king.

Re:One more thing they should have asked for (1)

Opportunist (166417) | more than 3 years ago | (#36159724)

(Quote Fat Tony when asked how to shoot Homer)

"Listen to your heart."

Re:One more thing they should have asked for (1)

Opportunist (166417) | more than 3 years ago | (#36159710)

Wait, what? That's still illegal?

Hang on, I think I should call my lawyer.

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36159960)

Note that the BAD GUYS wanted to kill all the lawyers in the Shakespear play as they had the nasty habit of trying to uphold the law.

The problem here is bad law and a bad client. It is the duty of a good lawyer to do the best possible for a client.

Re:One more thing they should have asked for (3, Informative)

MaskedSlacker (911878) | more than 3 years ago | (#36162170)

Note that the BAD GUYS wanted to kill all the lawyers in the Shakespear play as they had the nasty habit of trying to uphold the law.

That's clearly not the context of the quote. Yes, the bad guys say it, but it's in the middle of passage describing how awesome things will be once they're in charge in a white-fluffy clouds, puppy dogs, and no lawyers kind of way. The tone of the scene is humorous, but a world without lawyers is lumped in with a bunch of a other hyperbolically good things (seven halfpenny loaves for a penny, three-hooped pots with ten hoops, outlawing small beers, making all food free of charge). There is no sense of cunning plot behind the comment, as if killing the lawyers were some insidious plan; the scene is comic.

In short, the 'kill all the lawyers' comment in context is a utopian joke. A 'wouldn't it be nice, if it weren't impractical?' It is not a comment in the lawyers favor (anymore than the impracticality of making food free is a comment in favor of high food prices).

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36159510)

Somewhat optimistically, I misread this as disembowellment of the lawyers. Even Shakespeare would be impressed if that happens.

Do Lawyers get together in bowels after work to brag about the size of their bars ?

Kind of off topic (sorry), but I've always wondered ...

Re:One more thing they should have asked for (1)

Alex Belits (437) | more than 3 years ago | (#36159784)

I insist on standardizing on the procedure that I have proposed for Microsoft -- a river of blood flowing between hills made of crushed bones of all employees, topped with skulls of executives.

Re:One more thing they should have asked for (1)

ae1294 (1547521) | more than 3 years ago | (#36159914)

I insist on standardizing on the procedure that I have proposed for Microsoft -- a river of blood flowing between hills made of crushed bones of all employees, topped with skulls of executives.

Torgo's Executive Powder(tm)

Re:One more thing they should have asked for (1)

sgunhouse (1050564) | more than 3 years ago | (#36159826)

Actually, I read dismemberment ...

Re:One more thing they should have asked for (1)

Fjandr (66656) | more than 3 years ago | (#36159866)

It was "dismemberment" for me.

Re:One more thing they should have asked for (1)

Wolfling1 (1808594) | more than 3 years ago | (#36160932)

I think that this is a problematic view of the situation. The oath of service that lawyers take is to fight for their client regardless of their personal opinion. The strength of the system rests in the abstraction of the lawyer's morals from the case they are contesting.

It is easy to blame a lawyer who defends a murderer or a rapist. However, if no lawyer was prepared to do so, many people accused of those crimes would lose their cases purely due to no representation. Lets not return to an age of witch-hunts.

I strongly support the court system imposing the heaviest of penalties on organisations that abuse the legal system for personal gain. And I think that the courts should have the right to extend those penalties to the cowards that hide behind shell companies. Lets put the blame where it truly belongs.

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36162498)

I think that this is a problematic view of the situation. The oath of service that lawyers take is to fight for their client regardless of their personal opinion. The strength of the system rests in the abstraction of the lawyer's morals from the case they are contesting.

Fortunately this is made easier by lawyers having their morals removed when they pass their bar exams...

Re:One more thing they should have asked for (1)

Anne Thwacks (531696) | more than 3 years ago | (#36162974)

abstraction of the lawyer's morals

That is presumably a relatively simple task, not requiring dental tools?

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36166418)

I have no modpoints to rate this up, but it definitely deserves more credit than it has been given.
So you're aware, I work as a software engineer for dental practice management applications, and read it exactly as you implied.. and LOL'd hard.

For those not initiated:
"abstraction of the lawyer's morals"
becomes
"extraction of the lawyer's molars"

Preferably without anesthetic.

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36163300)

Aren't the lawyers responsible for things like failing to send notices before suing, incorrectly threatening to take down domains, falsely claiming copyright, etc.?

I.e. the conduct of the company has been legally questionable, which is exactly what the lawyers should be responsible for - and if the lawyers have engaged in legally questionable conduct, disbarment seems like the correct consequence - no?

Re:One more thing they should have asked for (3, Informative)

Rogerborg (306625) | more than 3 years ago | (#36163802)

The oath of service that lawyers take

Nevada bar oath of office:

Rule 73. Attorney's oath. Upon being admitted, each applicant shall take and subscribe to the following oath:

I DO SOLEMNLY SWEAR, OR AFFIRM, THAT:

I will support the Constitution and government of the United States and of the State of Nevada;

I will maintain the respect due to courts of justice and judicial officers;

I will support, abide by and follow the Rules of Professional Conduct as are now or may hereafter be adopted by the Supreme Court; and

I will faithfully and honestly discharge the duties of an attorney at law to the best of my knowledge and ability.

Counsel are first and foremost officers of the court, not of their clients. Fighting for their client does not allow them to take actions that they know, or should know, do not comply with the law, or waste the court's time.

Re:One more thing they should have asked for (1)

Wolfling1 (1808594) | more than 3 years ago | (#36172130)

There's nothing there about that.. read the Rules of Professional Conduct: Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

Its all over the place in here. Remember that copyright trolling is not a criminal matter. It is a civil case. These lawyers are not failing to comply with the law.

Now, you _could_ make an argument that the directors of Righthaven are legally insane - and that would compel the lawyers to have them committed. Now, THAT would be interesting.

Re:One more thing they should have asked for (0)

Anonymous Coward | more than 3 years ago | (#36163846)

I think that this is a problematic view of the situation. The oath of service that lawyers take is to fight for their client regardless of their personal opinion. The strength of the system rests in the abstraction of the lawyer's morals from the case they are contesting.

But only fight within the limits of the law.

Lawyers have been disbarred for bribing witnesses, threatening witnesses with violence, et al even if that was what the client wanted.

Re:One more thing they should have asked for (1)

Dan541 (1032000) | more than 3 years ago | (#36163786)

I read that a little fast then and thought you said "Disembowelment of Lawyers".

I'll chip in for that.

Live by the sword... (4, Interesting)

Derekloffin (741455) | more than 3 years ago | (#36159140)

...Die by the sword. Let's all hope it works out and Righthaven gets justly crushed.

Re:Live by the sword... (3, Insightful)

Cogita (1119237) | more than 3 years ago | (#36159198)

...Die by the sword. Let's all hope it works out and Righthaven gets justly crushed.

There's a reason it's basically a shell company, and doesn't own any of the rights...

Re:Live by the sword... (4, Interesting)

hedwards (940851) | more than 3 years ago | (#36159276)

Wouldn't that enable wire fraud and racketeering charges against whomever it is that set up Righthaven? Not to mention related conspiracy charges.

Re:Live by the sword... (5, Informative)

Fluffeh (1273756) | more than 3 years ago | (#36159408)

I am pretty sure that one of the judges recently made a point in court about the way that the company was set up and how the actual backers of this company were liable and directly in control of the actions - making it less of a shell company than it would seem.

Re:Live by the sword... (1)

Anonymous Coward | more than 3 years ago | (#36159644)

I am most certainly not a lawyer, but my understanding was always that if you're not careful a judge can pierce the veil of liability and expose the relevant parties in a civil case... though usually in cases of co-mingling assets, gross malfeasance, etc.

Anyone that knows more, please correct me if this is wrong. I'm just a lowly, regular person. :)

Re:Live by the sword... (4, Informative)

Fluffeh (1273756) | more than 3 years ago | (#36160190)

I think you should probably have a read of these two stories to get a better idea of the judge that is starting to crack the shits with Righthaven:

Righthaven Defies Court in Domain Name Ruling [slashdot.org]
and
Judge Reveals Secret Righthaven Copyright Contract [slashdot.org] .

Re:Live by the sword... (2)

Greyfox (87712) | more than 3 years ago | (#36161582)

I saw that done (Or at least attempted) to a local restaurant. One part of the legal filing moved that the incorporated restaurant was in effect an alias used by its owners and asked that the owners be found personally liable for damages that the corporation could not pay. I wasn't familiar with that particular legal maneuver, but it sounds like Righthaven would be a good target for something like that.

Re:Live by the sword... (0)

Anonymous Coward | more than 3 years ago | (#36159278)

...Die by the sword. Let's all hope it works out and Righthaven gets justly crushed.

There's a reason it's basically a shell company, and doesn't own any of the rights...

Yes, but there are cases where the veil can be pierced and the scoundrels can't hide from the law. This may very well be such a case.

It could happen... (5, Informative)

Local ID10T (790134) | more than 3 years ago | (#36160054)

There's a reason it's basically a shell company, and doesn't own any of the rights...

Piercing the Corporate Veil

A court may pierce through the veil of liability protection if the corporation does not follow proper corporate formalities, if it is undercapitalized, or if it can be shown that it is a sham that was set up to defraud.

patentdead corepirate nazi life0cide ending? (-1, Troll)

Anonymous Coward | more than 3 years ago | (#36159172)

not soon enough for most of us. how many 1000 babys going up in smoke again today? how many 1000's of just folks to be killed or displaced again today? hard to put $$ on that. the cost of constant deception, to our spirit? paying to have ourselves constantly spied on & lied to by freaky self chosen neogod depopulationers? the biblically styled fatal distraction holycost is all encompassing, & never ends while we're still alive, unless we cut them/ourselves off at the wmd. good luck with that, as it's not even a topic anywhere we get to see, although in real life it's happening everywhere as our walking dead weapons peddlers are being uncontracted. you can call this weather if it makes you feel any better. no? read the teepeeleaks etchings.

so, once one lie is 'infactated', the rest becomes just more errant fatal history.

disarm. tell the truth. the sky is not ours to toy with after all?

  you call this 'weather'? what with real history racing up to correct
itself, while the chosen one's holycostal life0cider mediots continually
attempt to rewrite it, fortunately, there's still only one version of the
truth, & it's usually not a long story, or a confusing multiple choice
fear raising event.

wouldn't this be a great time to investigate the genuine native elders social & political leadership initiative, which includes genuine history as put forth in the teepeeleaks etchings. the natives still have no words in their language to describe the events following their 'discovery' by us, way back when. they do advise that it's happening again.

who has all the weapons? who is doing MOST of the damage? what are the motives? are our intentions & will as the ones who are supposed to be being represented honestly & accurately, being met? we have no reference to there being ANY public approval for the current mayhem & madness pr firm regime style self chosen neogod rulership we've allowed to develop around us, so we wouldn't have to stop having fun, & doing things that have nothing to do with having to defend from the smoke&mirrors domestic frenetics, of the unproven genocides. rockets exploding in syria fired from Libya? yikes?

  the zeus weather weapon is still being used indiscriminately against the population, our rulers' minions are fleeing under fire.

the whore of babylon has been rescued by the native elders. she has the papers of challenge authored by the hymenical council, & is cooperating wholeheartedly with the disarmament mandate.
disarm. thank you.

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Re:patentdead corepirate nazi life0cide ending? (1)

mug funky (910186) | more than 3 years ago | (#36160580)

why did you stop updating www.timecube.com?

Outstanding (0)

Anonymous Coward | more than 3 years ago | (#36159238)

I really hope they go out of business and every poor person that was exploited by them get every penny back. I am all for copyrights, but good lord, this company is the worst.

Entitlement (0)

Etrahkad (1399575) | more than 3 years ago | (#36159262)

Just because you have the money to get people to suck your dick doesn't make prostitution legal.

Re:Entitlement (0)

Anonymous Coward | more than 3 years ago | (#36160170)

In what backwater swamp do you live in?
Prostitution is a normal job with full health care, pension, insurance and taxes over here. Which pays extremely well (1000€ a day.)

(Still doesn't make it good if someone has no choice but to fuck disgusting people, but it's just as far from illegal. But I'd do it with normal people if I were a hot chick.)

So it's a really bad analogy.

Re:Entitlement (1)

mug funky (910186) | more than 3 years ago | (#36160588)

strippers make more cash and don't have to fuck disgusting people...

Re:Entitlement (0)

Anonymous Coward | more than 3 years ago | (#36163054)

They also possess some "skillset" beyond laying on their back, or bobbing their head.

They sued me for 540,000$ (-1, Troll)

amazingeek (2169890) | more than 3 years ago | (#36159286)

Really a hope for me. I actually never did download anything that this sucking bloody firms protects. Here I explain on my blog [thoughts.com]

It was close (-1, Troll)

amazinggeek (2169916) | more than 3 years ago | (#36159382)

My close friend [thoughts.com] was hit by lawsuit, and paid 5,000$ for a settlement. Next time could be me. Scary....

Re:It was close (0)

Anonymous Coward | more than 3 years ago | (#36159430)

Goatse

Re:It was close (0)

Anonymous Coward | more than 3 years ago | (#36159460)

the fuck is a goatse?

it's some dude pulling his arse open.

Re:It was close (0)

TheRaven64 (641858) | more than 3 years ago | (#36159616)

the fuck is a goatse?

The picture was originally hosted at http://goatse.cx/hello.jpg [goatse.cx] , although I think it was taken down a few years ago (no, I'm not going to check). It is commonly referred to as goatse, after the domain name.

Re:It was close (2)

TheRaven64 (641858) | more than 3 years ago | (#36159630)

WTF Slashdot? I intentionally didn't make that a link, in case it is still working, and you go and make it one automatically? That's great. Can't make the comments system work without misplaced click handlers causing focus to jump everywhere, but you can auto-link goatse URLs. Great set of priorities you've got there...

Re:It was close (-1, Troll)

asshole345534 (2170068) | more than 3 years ago | (#36159682)

Testing: http://goatse.ru/ [goatse.ru] Yep, works, thanks for the tip, will make my trolling a bit faster

Re:It was close (1)

TubeSteak (669689) | more than 3 years ago | (#36161920)

If you post with "Plain Old Text" set as your default, it auto-links anything that looks like a URL.
FYI - AFAIK, Slashdot doesn't censor links, it just lets people with mod points push them to -1

Re:It was close (1)

Fjandr (66656) | more than 3 years ago | (#36159926)

If you hadn't posted anonymously, there would be demands for you to hand in your /. card.

To the Batmobile (TM) (1)

cadience (770683) | more than 3 years ago | (#36159404)

Where do a send a check to help defray costs?

Re:To the Batmobile (TM) (0)

amazinggeek (2169916) | more than 3 years ago | (#36159462)

Right here [thoughts.com]

God, if you exist, (3, Funny)

martas (1439879) | more than 3 years ago | (#36159424)

PLEASE help them win this counterclaim! Seriously dude, I know you like a hands-off approach to parenting, but in this case we could really use your help...

Represented by ... (3, Interesting)

overshoot (39700) | more than 3 years ago | (#36159478)

Brownstein Hyatt -- apparently a firm that does a lot of business with the gaming industry. The thought of big Italian lawyers in pinstriped suits comes to mind, but to be honest my first thought was of an obscure single practitioner in California and my second was of the enormous firm of Morrison Foerstner. [mofo.com] And yes, if you follow the link, that really is what the firm call themselves. With some justice.

Re:Represented by ... (1)

sconeu (64226) | more than 3 years ago | (#36159492)

The MoFos represented Novell in the SCO suit.

Re:Represented by ... (1)

wes33 (698200) | more than 3 years ago | (#36159670)

The MoFos represented Novell in the SCO suit.

And between them and Boise and Co dragged
it out for about 7 years and perhaps 40
million dollars of legal fees

Re:Represented by ... (1)

Alex Belits (437) | more than 3 years ago | (#36159862)

Boise

Boies. Boise is the capital of Idaho that no one cares about, Bose is a company that makes shitty consumer audio products, Boies is a ridiculously expensive lawyer that has a tendency to jumps into every high-profile lawsuit and mess it up.

Re:Represented by ... (1)

Mister Transistor (259842) | more than 3 years ago | (#36162584)

I know you're right, but dude, you sound like one of those stupid Bing commercials! Read your post in a monotone and see what I mean :)

Re:Represented by ... (1)

Opportunist (166417) | more than 3 years ago | (#36159762)

Talk 'bout a fitting company name.

They sued me for 540,000$ (-1, Troll)

madgeekstrikes (2169984) | more than 3 years ago | (#36159496)

Really a hope for me. I actually never did download anything that this sucking bloody firms protects. Here I explain on my blog [thoughts.com]

Righthaven? (1)

Anonymous Coward | more than 3 years ago | (#36159528)

Is this a new campaign land in the Dragonlance universe?

Next up - Lodsys (1)

PolarIced (119874) | more than 3 years ago | (#36159584)

Now if the lawyers would go after the frivolous claims made by Lodsys to shake down the iOS developers . . .

It would be a good week.

As much as I'd like this to succeed... can it? (1)

_0xd0ad (1974778) | more than 3 years ago | (#36159642)

Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that's not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, ... Righthaven's copyright infringement lawsuits amount to unfair and deceptive trade practices under Colorado law

That's well and good, but is it actually codified in law anywhere? Because as much as I'd love to see copyright trolls like Righthaven go away, their business model sort of hinges on being legally "right" and not breaking the law, at least not the letter of the law.

Accusing them of the opposite seems like a long shot.

They're all about finding and exploiting loopholes in copyright law, and unfortunately, finding and exploiting loopholes in the law isn't patently illegal.

Re:As much as I'd like this to succeed... can it? (5, Informative)

jonbryce (703250) | more than 3 years ago | (#36159720)

Claiming damages for copyright infringement in respect of material for which you do not own the copyright falls very definitely on the other side of the law. Righthaven have no more right to collect damages for this than you or I do.

Re:As much as I'd like this to succeed... can it? (1)

_0xd0ad (1974778) | more than 3 years ago | (#36160620)

material for which you do not own the copyright ... Righthaven have no more right to collect damages for this than you or I do

If you're authorized by the copyright holder, you're pretty much free to do anything they can do, if I'm not mistaken.

Re:As much as I'd like this to succeed... can it? (5, Informative)

Anonymous Coward | more than 3 years ago | (#36162134)

material for which you do not own the copyright ... Righthaven have no more right to collect damages for this than you or I do

If you're authorized by the copyright holder, you're pretty much free to do anything they can do, if I'm not mistaken.

Wrong. When dealing with copyright, you cannot transfer only the ability to sue. You can only transfer that in conjunction with one of the other exclusivity rights in Section 106 of the 1976 Copyright Act. You need to have some other interest in the copyright other than the right to sue. Silvers v. Sony Pictures Entertainment, Inc. makes that clear for the 9th Circuit (there has been some confusion on this and disagreement in other federal courts).

To quote 402 F.3d 881 on 883:

May an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself, institute an action for infringement? After analyzing the 1976 Copyright Act and its history, as well as the scant, although persuasive, precedent that is available in analogous situations, we answer that question “no.” Accordingly, we reverse the ruling of the district court, which allowed this action by the assignee to proceed.

and 884:

Accordingly, our starting point is the statute.

Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright:

The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.

17 U.S.C. 501(b) (emphasis added). The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.” See 4 Business and Commercial Litigation in Federal Courts, at 1062, 65.3(a)(4) (Robert L. Haig ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”).

Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. 106. The right to sue for an accrued claim for infringement is not an exclusive right under 106. Section 201(d) refers to exclusive rights and provides:

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a copyright, including any subdivision*885 of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

17 U.S.C. 201(d). Exclusive rights in a copyright may be transferred and owned separately, but 201(d) creates no exclusive rights other than those listed in 106, nor does it create an exception to 501(b).

Re:As much as I'd like this to succeed... can it? (0)

Anonymous Coward | more than 3 years ago | (#36165284)

How long until the RIAA lobby gets this overturned...

sigh.

Re:As much as I'd like this to succeed... can it? (0)

Anonymous Coward | more than 3 years ago | (#36169954)

Not too soon. The Supreme Court of the United States refused to hear the appeal from that particular case. However, they might in the future hear a different one.

Re:As much as I'd like this to succeed... can it? (3, Interesting)

AK Marc (707885) | more than 3 years ago | (#36162520)

The AC is right, but long winded. The short answer is the Judge should accept the case in question, look at the law, and issue a summary judgment.

Righthaven has the right to sue, however since they have no right to the copyright itself, there is no manner in which they could have had a loss. As such, the judge should dismiss the case as if it did succeed on merits, the loss is provably zero.

Righthaven hopes that the statutory minimums will let them claim that as a loss, however, the standard legal processes are in place until after the judgment of liability is made, and the case would fail before that point without regard to any statutory minimums.

Re:As much as I'd like this to succeed... can it? (1)

jfengel (409917) | more than 3 years ago | (#36167876)

Does this apply to other areas, or just to copyright?

Are there other areas in which you can transfer the right to sue? You can sue for a debt; can you transfer the right to sue for the debt without transferring the debt itself? What about the right to sue for damages, in which case no debt has been created yet but one would be if the judgment made one?

To a non-lawyer's eye it sounds like "potential debt" and "debt" would be treated similarly in the eyes of the law, but I know that they're not the same.

Re:As much as I'd like this to succeed... can it? (1)

AK Marc (707885) | more than 3 years ago | (#36169802)

You can pay someone to collect a debt for you, or you can sell the debt itself, but no, you can't just sell the right to sue and nothing else. There is no "right to sue" and you have to actually transfer a loss to them for them to be able to sue, or be actively employing them. And nobody wants to employ someone like Righthaven because their illegal actions will reflect on the company that employs them, and the legal liability for counter suits like this will often include the parent company as well.

Re:As much as I'd like this to succeed... can it? (1)

jfengel (409917) | more than 3 years ago | (#36170140)

As I understand Righthaven's business model, they do acquire the copyrights to the articles over which they're suing. At least in theory, that's a valid model, but they seem to be going out of bounds as well.

For example, one lawsuit dismissed was decided as fair use. The extract was 8 sentences. I'm not in a position to judge if that really was a valid derivative work, but it sounds to me like there should be many clearer cases they could be litigating without getting themselves in legal trouble over iffy and frivolous ones.

Re:As much as I'd like this to succeed... can it? (1)

AK Marc (707885) | more than 3 years ago | (#36170992)

That was the point of the disclosure of the contract where they gained the right to sue, but not the rights to the articles in question (they wouldn't be able to print them all up in a book of articles). They may have different contracts with different people, but the most recent I saw released they essentially bought the right to sue, but not the right to print the articles themselves.

Re:As much as I'd like this to succeed... can it? (1)

jfengel (409917) | more than 3 years ago | (#36173838)

Interesting. Thanks.

Re:As much as I'd like this to succeed... can it? (0)

Anonymous Coward | more than 3 years ago | (#36161572)

Claiming damages for copyright infringement in respect of material for which you do not own the copyright falls very definitely on the other side of the law. Righthaven have no more right to collect damages for this than you or I do.

So what does this mean for "orphaned" books? I can publish them at will, because if there's no rightsholder known, no one can file infringement suits?

Re:As much as I'd like this to succeed... can it? (1)

RobbieThe1st (1977364) | more than 3 years ago | (#36162264)

If some publishing company doesn't own the distribution rights, then possibly. But most orphaned works /do/ have a publisher with some rights, even if new contracts with the actual copyright owner cannot be found, and that company might sue you.
Alternately, if the copyright owner ever reappears, he or she might sue you.

Re:As much as I'd like this to succeed... can it? (1)

AK Marc (707885) | more than 3 years ago | (#36162548)

If they are orphaned, then someone owns the copyright until they enter Public Domain. The person who owns the rights might not even know they own the rights, but that doesn't prevent them from being the rightful owner. In the case of truly orphaned works, printing and distributing them is illegal, but it is not something anyone can prosecute until the work is "unorphaned" (in that the rightful owner would have to present themselves and prove ownership, thus rendering the work in question most certainly not orphaned.

And orphaned work is not something like the Peter Pan Disney movie where the work is not in print, but the owner of the copyright is well known. Many people consider anything not in print which they couldn't get new no matter how much money they offered as orphaned, but that's not the manner in which I'm using the word in order to be clear that a work with a known copyright holder who chooses to not distribute the work is not orphaned.

Re:As much as I'd like this to succeed... can it? (3, Informative)

Arancaytar (966377) | more than 3 years ago | (#36159732)

That's what the concepts of bad faith and abuse of process are for. Exploiting the letter of the law to deceive and harm people via the court system isn't legal.

Re:As much as I'd like this to succeed... can it? (1)

_0xd0ad (1974778) | more than 3 years ago | (#36160650)

I'm sorry if my faith in the legal system is slightly less than ideal, but the Supreme Court just ruled on a 89% count that the police can break down your door and search your house if they smelled marijuana and heard noises that might mean you were destroying evidence.

Bad faith? Bah.

Re:As much as I'd like this to succeed... can it? (1)

Opportunist (166417) | more than 3 years ago | (#36159802)

If everything fails there's still good ol' torch'n pitchfork jurisdiction.

I'm really wondering when the first person realizes "Hey. They ruined my life and I didn't do anything to deserve it. Let's go and make the crime match the verdict" (insert loading sound of automatic weapon).

Re:As much as I'd like this to succeed... can it? (1)

drinkypoo (153816) | more than 3 years ago | (#36161054)

There seems to be little incentive to do such a thing unless already sentenced to prison. And unless you're loaded with cash they're not going to wait for you to turn yourself in thereafter.

Re:As much as I'd like this to succeed... can it? (0)

Anonymous Coward | more than 3 years ago | (#36161228)

I might have my history wrong, but wasn't the last violent revolution here sparked by a tax increase? You can never tell what will spark the public's fury until it's furious.

Counterclaim (0)

Anonymous Coward | more than 3 years ago | (#36159680)

Wasn't this tried once with the RIAA?

Re:Counterclaim (1)

Fjandr (66656) | more than 3 years ago | (#36159948)

There are a number of much bigger fish on the other side of Righthaven. The money balance is the difference.

Criminal charges as well (2)

Fujisawa Sensei (207127) | more than 3 years ago | (#36159844)

There need to be criminal charges filed against this asshole as well. But not before they bankrupt his ass legal expenses and judgments for his civil crimes. That way we wont be able to get anything buy a public defender for the criminal case and the civil attorneys will have done most of the research for the criminal prosecutor.

And I hope his lawyers are named as accomplices in both cases, so they can get bankrupted themselves; followed by disbarment by a federal judge, then end up in prison with him.

Keeping this assholes like these in prison would be a much better use of tax payer dollars than doing the same for a few pot smokers.

Takedown notices (1)

wiredlogic (135348) | more than 3 years ago | (#36160478)

Takedown notices aren't mandatory. The DMCA doesn't revoke preexisting means of resolving infringement. It is perfectly acceptable to sue without prior notice.

Re:Takedown notices (1)

Anonymous Coward | more than 3 years ago | (#36160776)

Yes but in general courts should not be the first resort, you should make some attempt to resolve the issue outside of court unless there are strong mitigating circumstances. If you don't do this expect to be called on it, and it's usually not looked favorably on to abuse the court system like that.

Re:Takedown notices (3, Insightful)

AK Marc (707885) | more than 3 years ago | (#36162574)

It is perfectly acceptable to sue without prior notice.

You are confusing legal with acceptable. If you don't like your neighbor and there is a tree growing over the property line that you want cut down and you know he would like to keep, if you sue and the judge asks you if you even spoke with the neighbor regarding the issue, it's expected that the judge would dismiss the case without prejudice before hearing any testimony. He doesn't care who is right, if you haven't tried reasonable steps to resolve the issue, then he won't hear it. If you then talk to your neighbor and the issue isn't resolved and it comes back in front of him, then he'll hear it.

Or, in your terms, it's perfectly acceptable for the judge to dismiss all lawsuits presented before him that were filed without prior notice.

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