Judge Reveals Secret Righthaven Copyright Contract

Hugh Pickens writes "Judge Roger Hunt has unsealed the confidential agreement between Righthaven and the Las Vegas Review-Journal that has allowed Righthaven to sue over more than 250 charities, impoverished hobby bloggers, reporters, and the newspaper's own sources, for $150,000 each in damages and forfeiture of the sites' domain names, and the contents of the agreement could end up being ruinous for Righthaven's campaign of copyright lawsuits. The problem is that Stephens Media, the company that owns the Las Vegas Review-Journal, didn't actually assign any of the rights related to copyright to Righthaven except the right to sue — and that has been found in Silvers vs. Sony Pictures to be illegal under case law. In other words, none of the important things that come with a copyright — such as the right to make copies of a work, or distribute it, or make 'derivative works' — were handed off to Righthaven. Only the right to sue was given, and that makes the copyright transfer bogus, argue lawyers for the Democratic Underground, which is being sued for one of its website users posting the first four paragraphs of a 34 paragraph story."

Comments

Can this judge reverse all previous cases? (IANAL)

[mfarah]

If the summary is true, could all the aggravated parties become part of the same suit, or parts of a class action suit or something?

What I'm asking is: what are the required steps now to undo Righthaven's damages?

Why was the contract unsealed?

[mfarah]

"Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement [...]"

Not that I'm complaining, but... what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

Re:Why was the contract unsealed?

[Anonymous Coward]

what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

Well, let's see now. Perhaps he...

RTFA!

Re:Why was the contract unsealed?

[Anonymous Coward]

"Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement [...]"

Not that I'm complaining, but... what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

righthaven has filed tons of cases in this guys court. The judge believes they are using his courtroom as their business office/money making scheme. You don't wanna piss off the judge.

Re:Why was the contract unsealed?

[Gaygirlie]

"Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement [...]"

Not that I'm complaining, but... what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

The whole point of trying to run a business with the sole purpose of making income by suing people is probably quite angering to judges. After all, courts are not meant to be used for business, they're meant for solving actual real problems.

Re:Why was the contract unsealed?

[ciaran.mchale]

"Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement [...]"

Not that I'm complaining, but... what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

You can find the answer to your question in the final two paragraphs of the first link in the /. summary. I'd like to quote those two paragraphs for your convenience. But then, according to the thrust of the article, I might be sued for copyright infringement.

Re:Why was the contract unsealed?

[Haedrian]

After all, courts are not meant to be used for business, they're meant for solving actual real problems.

You're not from around these parts are you?

Re:Why was the contract unsealed?

[scotts13]

You don't wanna piss off the judge.

My grandfather was a police sergeant; at a very early age, the one piece of advice he gave me was "Never piss off a judge" I didn't understand then, but I sure do now. In this case, I see no real reason to make the agreement public other than to embarrass Righthaven. Pissed indeed...

Re:Why was the contract unsealed?

[arth1]

The whole point of trying to run a business with the sole purpose of making income by suing people is probably quite angering to judges. After all, courts are not meant to be used for business

Indeed, judges wants judges and lawyers to have monopoly on making money on lawsuits.

I have no problems with barring others from using the judicial system as a source of good income, but I do have an issue with how the golden business of lawyers makes a farce out of the blindness of the law by selling out to the highest bidder.
How about... The sides in a court case are allowed to pitch in as much money as they want, but half of it will go to your opponent, to allow him to buy exactly as good legal advice as you do.

Re:Why was the contract unsealed?

[Runaway1956]

I know that you're a very busy man, and don't have time to RTFA. Just for you:

“There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here.”

Re:Why was the contract unsealed?

[Anonymous Coward]

Well.... you really should RTFA, then you could contribute to the conversation instead of... well, I don't need to insult you. :->

The relevant paragraph is very clear (hope we all don't get sued) :

"Hunt also shows how peeved he is at Righthaven’s litigation behavior. (The company truly seems to have a knack for angering judges.) Judge Hunt criticizes how Righthaven has attacked opposing counsel, writing: “There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here.” "

Re:Why was the contract unsealed?

[Anonymous Coward]

You're not from around these parts are you?

Dunno 'bout the rating or classification stuff hereabouts,

but this was my first good laugh of the day.

Re:Why was the contract unsealed?

[countertrolling]

It should be made public because it is a public matter. Why are you shilling for Righthaven?

Re:Why was the contract unsealed?

[Anonymous Coward]

You can find the answer to your question in the final two paragraphs of the first link in the /. summary.

No you can't. He obviously read it, since he quoted it. You can take a reasonable guess, but the article does not specifically say what angered the judge.

Re:Why was the contract unsealed?

[frozentier]

Indeed, judges wants judges and lawyers to have monopoly on making money on lawsuits.

Judges and lawyers can make plenty of money off legitimate lawsuits. They did it long before you could sue someone just because you were too stupid to not put a boiling hot cup of coffee between your legs while driving.

Re:Why was the contract unsealed?

[91degrees]

I see no real reason to make the agreement public other than to embarrass Righthaven.

The default in a public trial is that everything is made public. It should only be kept private if there's a compelling reason.

Re:Why was the contract unsealed?

[DarkVader]

How about... The sides in a court case are allowed to pitch in as much money as they want, but half of it will go to your opponent, to allow him to buy exactly as good legal advice as you do.

I think you may have just hit upon a solution to the whole issue of tort reform.

It's absolutely brilliant. All parties to a dispute would be going in with exactly equal footing for legal representation, no matter how much either side was willing or able to spend on legal fees. It could result in an opening of access to the courts for the poor, and at the same time put a serious smackdown on SLAPP suits.

All tort "reform" to this point has concentrated on reducing the size of awards, which isn't always a good thing. This would just put the man on the street on an equal legal footing with the largest corporation.

Now, all we need to do is come up with about $100 million to buy some senators, and it'll be passed.

Re:Why was the contract unsealed?

[UnknowingFool]

The whole point of trying to run a business with the sole purpose of making income by suing people is probably quite angering to judges. After all, courts are not meant to be used for business, they're meant for solving actual real problems.

No, what has angered judges in the Righthaven cases has been the conduct of Righthaven. Specifically in the Colorado case, the Judge did not like the Righthaven method of suing first then asking questions later. Righthaven sued all the defendants without notifying them of possible copyright material or giving them a chance to remove the material. That did not sit well with the judge. Righthaven apparently angered the judge by then asking for more time which he denied explaining: " . . . the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability." In other words, courts are to resolve legal disputes when no settlement can be reached by the parties. By suing first Righthaven was abusing the court system. It's the conduct of Righthaven not the intent.

Re:Why was the contract unsealed?

[v1]

There was one quote from the judge that basically said the judge felt the plaintiffs proceeded with litigation while knowing that neither the facts nor the law were on their side. THAT will land you squarely in "frivolous lawsuit land" and piss off the judge real quick.

Basically, cavalierly wasting the court and judge's time is a very bad legal strategy.

Re:Why was the contract unsealed?

[stevelinton]

I've thought about this idea before. It's a nice idea, but big corporations would just employ in-house advisers and lawyers and claim that they were spending nothing on advice for the case, just doing the equivalent of representing themselves.

Re:Why was the contract unsealed?

[Tharsman]

Courts should force the sueing party to pay all legal expense in the case the case is lost, they decide to withdraw the lawsuit or a settlement is reached.

Re:Why was the contract unsealed?

[Sique]

One of the cases mostly misunderstood by the general public used as a bad example. Well done!

Because the coffee got served in a cardboard cup, there was a limit set how hot it can be served - to prevent exactly the skin burns the old lady was suffering. The restaurant in question was deliberately serving the coffee hotter, and the plaintiff was able to prove that the higher temperatures were used by directive of the upper management. Because of the higher temperature they could serve often reheated coffee and thus save money. The verdict was estimating how much money McDonald's was saving because of overheating the coffee and calculated the penalty from that.

Re:Why was the contract unsealed?

[geminidomino]

[The Judge said] " . . . the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

Looks like someone was cranky because he didn't get his RIAA care package that month...

Re:Why was the contract unsealed?

[Anonymous Coward]

Interesting idea. I wonder if this can be extended to reasonably deal with companies that have full time employed lawyers; it certainly sounds like a way to get avoid companies being able to just throw money at the problem. There may be some challenges around cases where a financially weak party has the more expensive case (and now gets the cost doubled); but overall I like it.

Re:Why was the contract unsealed?

[Intron]

"Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement [...]"

Not that I'm complaining, but... what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

The whole point of trying to run a business with the sole purpose of making income by suing people is probably quite angering to judges. After all, courts are not meant to be used for business, they're meant for solving actual real problems.

At least not when the judge isn't getting a cut.
http://www.pbs.org/wnet/tavissmiley/voices/2011/02/post-24.html

Re:Why was the contract unsealed?

[Intron]

Would you ever sue a large company if that were the law? It would be too great a risk.

Re:Why was the contract unsealed?

[jbengt]

Just because you were too stupid to not put a boiling hot cup of coffee between your legs while driving.

That is a gross oversimplification of the case.

Importantly, the fact that the driver bears some of the responsibility does not absolve McDonalds from their share of the liability.

McDonalds knew that they were selling coffee too hot to drink, they knew (or reasonably should have known) that it was hot enough to give third degree burns in less than a second, and they had over 700 previous complaints of burns due to their coffee, some including litigation.

McDonalds knew that the paper cups they were using were flimsy and relied on the lid being on to retain strength. They were providing cream and sugar separately and they knew that the customer had to remove the lid to add them themselves. They were selling coffee at the drive-in where it would be reasonable to assume that drivers would be dealing with the cups of very hot coffee in awkward circumstances and bumpy roads and that some drivers would not have cup holders.

The plaintiff originally only asked for her medical bills (5 figures) to be paid; McDonalds rejected that and decided to go to trial instead.

The jury awarded a much larger amount, but that award was substantially reduced by the courts.

Re:Why was the contract unsealed?

[Antisyzygy]

Then why did she deserve anything beyond medical bills and a small settlement (like a few thousand)? Either way, if you put coffee there its your own damn fault for spilling it on yourself. She could have put it in a cup holder or drove more carefully. Coffee is hot, you risk burning yourself when you put it between your legs, you knowingly take that risk. You are an idiot if you blame someone else for putting hot things between your legs regardless of how hot they made it. Even espresso from any espresso place would cause significant discomfort and possibly first degree burns if you spilled it on yourself just after purchasing it. I chipped my tooth one time eating a sausage because I accidentally bit the fork. Maybe I should sue the sausage company for not making their sausages transparent so I could see the fork. Their penalty for making opaque sausages should all go to me because I am the only one in the world that has ever ate sausage.

Re:Why was the contract unsealed?

[gonzo67]

She received the damages because McDonald's was found to have been purposefully negligent. That is they knew prior to this incident that the coffee was too hot (and had similar complaints/claims/lawsuits in the past), yet determined that the cost savings to them was less than the potential costs of medical bills (because the coffee was too hot to drink when initially given to you) than having to throw out and remake the coffee more frequently. THAT is what cost them, as the jury wished to send a message to the company that their profit margins mean less than the potential to injure.

The woman was parked (not driving), and was trying to remove the lid to add creamer and sugar when it spilled. If the coffee had been served at the LEGAL temp, no burns would have been caused, and if any had, McD's would have not been liable. The victim initially only asked for her medical bills to be paid, but was told to go away by McD's....which meant she had to sue to get recompense. And, McD's attitude cost them the large sum of money as a result.

Re:Why was the contract unsealed?

[NecroPuppy]

Initially, that's all she asked for.

She wanted $20k to cover past and future medical bills. $10,500 for what she'd already incurred, $2500 for future costs, and $5000 for loss of income. The other 2k, I'm guessing, covers pain and suffering.

McDonalds refused to pay out more than $800.

So it went to court. There, it came out that McDs was serving the coffee at 180-190 degrees F. Which is -way- hotter than it needs to be. That causes third degree burns in just a handful of seconds.

McDs had hundreds of complaints about the coffee being too hot, for years.

The punitive fine of $2.7 million was set by the jury based off of "two days coffee profit" for McDonalds.

Yes, the judge reduced it to $640k (total), and it was eventually settled for less than that. (Sealed, but reported as "under 600k". That tells me somewhere in the neighborhood of 550-575k, otherwise they would have reported a smaller number.)

Re:Why was the contract unsealed?

[DarkVader]

Done right, you could give them a serious disincentive to have an in-house legal department.

"Oh, you're using your in-house counsel? No problem. We'll just take the annual budget of that department, and you can give that much to the other side." - Judge GoodGuy

Never gonna happen with Congress bought and paid for by the corporations, though.

Re:Why was the contract unsealed?

[mbkennel]

That would work. If the company could also convince the court that all of these in-house advisers and lawyers really were working from $0. And any judge with some knowledge of the real world (and isn't corrupt) would know that is an extraordinary claim requiring extraordinary evidence.

"Yes sir, I am so pro-smoking that I will devote my time just to fight those evil do-gooders, just like me great great great granpappy on his plantation!"

Re:Why was the contract unsealed?

[arth1]

All very true, but "drinking temperature" is a very slippery slope. The recommended serving temperature by coffee connoisseurs is 92 C. That's far higher than what this coffee was. If anything, I find coffee served by US fast food places undrinkable because it's merely luke warm and not hot.

I think that anyone buying hot coffee should not assume anything about the temperature, except that it's hot.
And likewise, those who serve it shouldn't make assumptions either, but follow the recommendations of the food industry. In this case, the coffee board recommends a serving temperature of 92 C. Yes, that scalding hot. Much lower, and the fumes won't be part of the coffee experience.

Re:Why was the contract unsealed?

[arth1]

McDs was serving the coffee at 180-190 degrees F. Which is -way- hotter than it needs to be

Actually, that's too cool. 195-200F is the proper serving temperature, because if much cooler, you won't get the aromatic fumes that's part of the experience. You inhale air with the coffee to cool it down, and get a massive rush of fumes. Once it gets so cold that you can actually sip it, it's too cold, and becomes a beverage, not coffee.

Of course, the way Americans drink coffee is "as weak as and cold as piss", so if it's sold as such, sure, it probably needs to be colder. But without qualifying, I think one should not assume that "hot coffee" isn't scalding hot.

Re:Why was the contract unsealed?

[stevelinton]

Cute, but still impractical. "What department" Mr X is just a former lawyer who now works for us as a copyright administrator. He's in the Country & Western department"

Re:Why was the contract unsealed?

[stevelinton]

But then do you have to pay them half the cost of your time to defend yourself?

Re:Why was the contract unsealed?

[gbjbaanb]

just take his salary and bonuses and expenses and stock options and health insurance and company car and suchlike and say that's what they're spending as a minimum. Best add up all the lawyer's salaries unless they can prove they have no input whatsoever on the case.

Re:Why was the contract unsealed?

[AK Marc]

McDonalds served the coffee at or below the temperature recommended by a standards organization unrelated to McDonalds. McDonalds had warnings on it. The old lady didn't "spill" it. She squeezed it between her legs, crushing the cup. That would have happened regardless of the temperature of the contents. She was reckless with the coffee served in an adequate container at the recommended temperature.

Re:Why was the contract unsealed?

[AK Marc]

If the company could also convince the court that all of these in-house advisers and lawyers really were working from $0.

That's a great claim in court. The next step would be to subpoena their IRS records, and if it shows any income from the corporation in question, then all the lawyers and CxOs get thrown in jail for 5 years for contempt. OF course, they could pay the fine. Since they were proven to lie about who did what and who was paid what, they give up gross income for the corporation for one month (the average of the highest 12 month period in the last 10 years). I'd be interested in seeing if corporations pay up 8% of their revenue or let all their management and legal staff go to jail for perjury/income tax evasion.

Re:Why was the contract unsealed?

[gknoy]

If hot coffee is meant to be scalding hot, how do you drink it without damaging your mouth? I'm genuinely curious, because I don't find the feeling of a scalded palate or tongue a very desirable prospect.

Re:Why was the contract unsealed?

[gmhowell]

I wanna know why he's shilling for abusive judges.

Re:Why was the contract unsealed?

[gmhowell]

'Legal' temperature at which one can serve coffee? I'd like to see this statute.

Re:Why was the contract unsealed?

[gmhowell]

But then do you have to pay them half the cost of your time to defend yourself?

No, but it can be used to offset the amount that the corporation must pay you.

Re:Why was the contract unsealed?

[vgerclover]

What I find incredible is that people actually think that it is a good idea to mix Hot coffee/Messy hamburgers and driving cars.

Re:Why was the contract unsealed?

[arth1]

If hot coffee is meant to be scalding hot, how do you drink it without damaging your mouth? I'm genuinely curious, because I don't find the feeling of a scalded palate or tongue a very desirable prospect.

I think you missed this sentence in the post you replied to:
You inhale air with the coffee to cool it down.

Coffee cups used to be bone china, because thicker cups would crack because of the heat. Same reason for the small handle.
Tthe cups themselves were pretty small too; you would refill them often, so you wouldn't have to endure luke warm coffee.

There's a big difference in drip coffee makers in the US and Europe - in Europe the heaters usually keep the coffee scalding hot. Which has the unfortunate side effect that it generally becomes undrinkable after an hour, but then again, who would want that old coffee? Once it loses the smell of freshly brewed coffee, it's not worth drinking.

Re:Why was the contract unsealed?

[sjames]

And then they will be nailed up on purgery or contempt. Those lawyers aren't there because they like the snack machine, they're being paid. Meanwhile, they're not drawing their significant salaries because their suits go so well with the plants in the lobby.

Re:Why was the contract unsealed?

[rtb61]

More importantly if you are going to do that, then your damages claim must be realistic. In this case in can be readily calculated as it was a free to access story published online with the only revenue being actual add revenue earned as a result of people viewing that particular page. The damages claim would then have to calculated upon what more add revenue would have been earned for that free to access page had the defendant web site not published a portion of that story.

Now if web site value is based upon number of page views and add revenue, then claims for damages for copying 4 paragraphs of one page, should not be the complete web site plus $150,000 without any substantiation of actual losses incurred.

The judge is obviously infuriated at being used as part of an extortion racket, where the claim simply blackmail to force the defendant to settle out of court for a lesser sum.

Re:Why was the contract unsealed?

[GWRedDragon]

Importantly, the fact that the driver bears some of the responsibility does not absolve McDonalds from their share of the liability.

Only because this case happened in New Mexico, which is a comparative negligence state. In other jurisdictions (such as where I live), contributory negligence is considered a complete defense.

Re:Why was the contract unsealed?

[Anonymous Coward]

Court IS business. It's all about contract and extorting money.

Re:Why was the contract unsealed?

[bioster]

Ok, think it through. How many coffees is that restaurant going to sell over the course of a year? Let's assume that they only sell 100 coffees a day over 360 days a year, for 36,000 coffees. Over a 5 year period that's 180k coffees served. What are the odds that someone is going to spill a coffee on themselves immediately after being handed the coffee, over those 5 years? Well, I'd say it's pretty much guaranteed. At some point the drive through person is going to hand it to someone and something is going to slip, and fresh from the pot coffee is going to spill all over someone. Or some similar accident will happen.

Now, we've established that people WILL spill the coffee on themselves. Ok, but bad things happen all the time, right? People WILL crash cars into trees. Well, the people who make the cars are under an obligation to take steps to make crashing into trees safer, even though you're not supposed to drive your car into a tree. Similarly since we know that sooner or later someone is going to spill coffee on themselves, then the restaurant making the coffee should take reasonable steps to limit the damage, right?

1. McDonalds served it's coffee hotter than was meant to be drunk immediately, with the intention that the coffee would cool to drinkable temperatures by the time you got to the office.

2. McDonalds had been warned in the past that it's coffee was too hot, and told to reduce the temperature that it was being served at.

3. It kept serving the too-hot coffee despite being explicitly warned not to, and despite the fact that sooner or later someone would spill the too-hot coffee on themselves.

4. She sued for medical bill coverage only. She got 80% of her medical bills covered because she was found 20% liable. The court then also decided* to apply penalties to McDonalds in excess of these bills in order to convince McDonalds that it should follow the law. Because otherwise from McDonalds perspective it should keep operating in an unsafe manner because it makes more money that way (ie. paying out medical bills for burns is less money than the extra they make serving too-hot coffee).

So basically this case wasn't anywhere near as simple as the "lol, dumb bitch spilled coffee on herself and she sued for millions" that a lot of people seem to think it was. It actually makes a lot of sense, and I think it's a good example of justice arriving at the correct result even though the results are a bit counter intuitive if you don't look very closely.

Re:Why was the contract unsealed?

[Antisyzygy]

Justice? If you don't want coffee that is too hot don't buy it at McDonalds. Why should the government dictate how how coffee can be? Give me a break. Its not like they were selling time bombs disguised as sandwiches, they were selling something with an expectation its hot. Its still a case of dumb bitch spilled coffee on herself to me. Didn't she get all the penalty money?

Re:Why was the contract unsealed?

[Kamiza Ikioi]

"Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement [...]"

Not that I'm complaining, but... what did Righthaven do to anger the judge? Were their lawyers being dicks? Was the contract itself what angered the judge? Truly, I'd like to know.

Righthaven responded to the Judge's request for documents by faxing Goatse to him.

Re:Why was the contract unsealed?

[bioster]

There is a difference between "hot" and "dangerously hot". If I go to a store and buy coffee, I expect it to be hot... not dangerously hot.

Let's put it another way. If I walk into a store and buy coffee, I expect to be able to drink it. I wouldn't be overly surprised if after spilling it on myself, I went "wow, that's hot!" but I don't expect to have to go to the hospital. It's coffee. Coffee is supposed to be safe. Yeah, if I spill hot coffee on myself I expect to hop around a little and my skin might be tender for a day or so, but that's very different from having to go to the hospital and get $20k worth of medical care.

If you don't want coffee that is too hot don't buy it at McDonalds

Really? That's your argument? That people should know when coffee is too hot and shouldn't accidentally spill it?

So, does McDonald's advertise it's coffee as "dangerously hot!" or label it with "handle with care"? How am I supposed to know that when I pick up a coffee from McDonald's that I better treat it with extra-special care to make sure I never spill it? You know, as opposed to plenty of other coffee shops which sell their coffee at a temperature that will only scald you a bit?

Why should the government dictate how how coffee can be?

You do know governments have a ton of rules about pretty much all aspects of food preparation?

Didn't she get all the penalty money?

You're still not quite getting that it wasn't about her. She sued for coverage of her medical bills. Here, from the wikipedia entry on the subject:

Other documents obtained from McDonald's showed that from 1982 to 1992 the company had received more than 700 reports of people burned by McDonald's coffee to varying degrees of severity, and had settled claims arising from scalding injuries for more than $500,000.

Basically what happened was she was trying to recoup her medical bills and the court awarded her most of that. Then the court looked at McDonald's history and decided that they just weren't getting the hint and wouldn't change their (apparently dangerous) policy of serving extra hot coffee. So they slapped them with some punitive damages to make them take notice. Yeah, I think that money went to her, but the point wasn't to GIVE her money the point was to PENALIZE McDonald's to attempt to give them incentive to serve safe food.

And btw, I think the actual amount she got was more along the lines of $600k. Not millions.

Re:Why was the contract unsealed?

[Ol Olsoc]

How about both sides have to use the same lawyer? It would be awesome to se a lawyer arguing with himself - sort of like Gollum fighting with himself in LOTR

Re:Why was the contract unsealed?

[MarkvW]

Wait! So if my neighbor pours toxic sludge all over my backyard, I have to fund his legal defense? Good luck with that one!

If...

[WillyWanker]

If the Review-Journal was something more than a mouthpiece for the GOP maybe they'd be able to actually sell papers and wouldn't need to resort to illegal lawsuits to stay afloat. I lived in Vegas for 2 years and this rag wasn't even good enough to line the litter box.

Hey Yosemite Sherm, maybe if you made even the slightest attempt at being neutral in your NEWS SECTIONS people might actually want to read your swill of a paper.

Re:If...

[Anonymous Coward]

Hey Yosemite Sherm, maybe if you made even the slightest attempt at being neutral in your NEWS SECTIONS people might actually want to read your swill of a paper.

This is exactly how I feel about the huffington post

Fair and balanced

[Anonymous Coward]

"allowed Righthaven to sue over more than 250 charities, impoverished hobby bloggers, reporters, and the newspaper's own sources"

I'm sure there's no bias here, they must have been careful to only sue the impoverished hobby bloggers instead of the ones who are making their mortgage payments.

Re:Fair and balanced

[morgan_greywolf]

I'm sure there's no bias here, they must have been careful to only sue the impoverished hobby bloggers instead of the ones who are making their mortgage payments.

Many of the people sued by Righthaven are/were actually Area 51 bloggers posting various sections of long-outdated articles of the Las Vegas Review-Journal covering events and happenings at the Nevada Test Site and the Groom Lake facility itself.

I suspect the vast majority of them haven't made dime.

Re:Fair and balanced

[shumacher]

Is anyone making their mortgage payments in Las Vegas?

Re:Fair and balanced

[Anonymous Coward]

the word impoverished may be be used as a verb in this instance.

Re:Fair and balanced

[gbjbaanb]

They sued Arstechnica over an image they used, Ars will tell you of the legalities Righthaven got wrong.

Re:Can this judge reverse all previous cases? (IAN

[clang_jangle]

If the summary is true...

Oh, come on. TFS bases its conclusions on the concept of "illegal under case law" ("there a legal precedent against it, therefore it's 'illegal'"). what do you think? :)

Does this undo any precedents already set?

[Quick Reply]

Does this undo any precedents already set in this case that assumes that they did have full rights to the copyright, or do they still stand for any future cases like this?

Those Who Settled Now Able to Sue?

[Fieryphoenix]

If this is accurate and such a partial assignment is invalid, does this leave Righthaven open to lawsuits for fraudulent representation by those who were threatened?

pounding sand

[bzipitidoo]

Sounds like Righthaven is very, very wrong. So wrong that they might have to pay the defendents' legal costs. From my limited understanding of the legal system, only exceptionally unwarranted cases, cases with no legitimate basis that were only brought to scare, harrass, and damage other parties, are subject to such sanctions. Except they don't have the assets to pay those costs. Strikes me as a sneaky way to shield the real prosecutors from such an outcome. Set up a shell company to do the dirty work and to fold like a house of cards if it backfires. But it looks like that's not going to work. The judge is not going to be fooled by this cute corporate trickery to evade responsiblity, and will rope the real prosecutors into the cases.

If the outcome is that the newspapers have to pay for the damage their sock puppet corporation caused, will that be enough to deter others from ever again trying such a heinous scheme? I doubt it. For instance, MS wasn't punished for the mess SCO made. These newspapers will conclude that Righthaven wasn't circumspect enough, and may well try again with another organization that is less obviously their sock puppet, same as SCO was a real separate party that began with no MS affiliation or support.

Re:pounding sand

[Runaway1956]

You will, of course, remember that SCO was much more independent than the turkeys in this article. In fact, SCO was a going concern in it's heyday, started downhill slowly, reached the edge of a cliff, and plummeted to the depths where the real slime lives. MS may have contributed to SCO, but that wasn't until SCO had already squandered many fortunes in pursuit of their version of the Holy Grail.

Re:pounding sand

[bill_mcgonigle]

The judge is not going to be fooled by this cute corporate trickery to evade responsiblity, and will rope the real prosecutors into the cases.

Do you think any real individuals will be held to account in the end? I doubt it - corporations were designed to make this kind of skullduggerous behavior acceptable.

Re:pounding sand

[jonbryce]

If the newspaper sued on their own account, they would probably win most of these cases, certainly in the ones where people have copied the entire article without attribution, the defendant is very clearly in the wrong.

Re:pounding sand

[Anonymous Coward]

The document in question would provide a link from the shell company to the parent company showing that they knew/had intent to do exactly what they did so the parent company could then become liable.

Re:pounding sand

[wvmarle]

My guess is that Righthaven was set up not just to protect the news papers that supply it with material to sue about from this kind of backfire. It's a nice extra.

It's more like an RIAA-type construction, where the company is a vehicle to absorb and distract public anger. After all when there are copyright suits regarding music sharing, it's the RIAA that takes the brunt of the anger. Even here on Slashdot. While in that case it's generally not even the RIAA themselves suing, instead their members, the record companies themselves are the ones initiating the prosecution. RIAA may help, they may lobby for laws helping their case (which is part of their charter of course), and they're a convenient vehicle to take public anger on those suits.

The actual right holders, music companies or in this case news publishers, are not mentioned much. They don't get all the negative feed-back, the calls for boycott. Nor the artists whose work is subject of the law suits get complaints (they are often considered "good guys" even for being robbed of the last few pennies the record companies may have for them).

This kind of constructions suck. I'm all for copyrights, but not in the current form. People should have the right to try to make a profit from their creations, and also to keep control of what happens to those creations for some period of time. Likewise these publishers surely have the right to protect their work - thought surely they also should go about it in a civilised manner. Like sending a formal notice to web sites they deem infringing their rights (that will likely solve the vast majority of cases). Like allowing "fair use" - e.g. snippets of articles with attribution and possibly link to the original. And if they find a web site is copying their articles verbatim without attribution, and the site is not answering to their notices, then it's definitely time for the publisher and rights holder to sue. That's simply their good right.

Copyrights and patents have been invented for a good cause, giving people more incentive to create and invent. And in many fields this surely has been the case. Hard to say what would have happened without patents and copyrights, but I'm sure it's been an incentive for many people or companies to go ahead and put that investment in, knowing that if any good comes out they would be able to profit from it.

I hope Righthaven gets shut down for this kind of behaviour, on whatever grounds. Is it for "sue first, ask later", is it for "only right to sue, no further interest", whatever, it's bad behaviour and should be stopped.

And Who is Stevens?

[Anonymous Coward]

And who is Stevens Media to have such rights
under control in the first place?

Re:And Who is Stevens?

[DustyShadow]

what??

Re:And Who is Stevens?

[Anonymous Coward]

Stephens Media, the company that owns the Las Vegas Review-Journal,

Are you retarded?

Re:Can this judge reverse all previous cases? (IAN

[DustyShadow]

how do you prove the contract is the same in all cases?

Re:Can this judge reverse all previous cases? (IAN

[gr8_phk]

I thought the first thing one should do in a copyright case (as defendant) is have the plaintiff prove that they have the right to sue. That can not be given to them in a sealed document. If defendant can't see that document, there should be no case since that is the basis for the case. IANAL, but this seem pretty straight forward to me. It also makes sense that assigning the right to sue isn't enough, because that company has nothing to lose should you infringe - they haven't been harmed.

Interesting

[mysidia]

Only the right to sue was given, and that makes the copyright transfer bogus, argue lawyers for the Democratic Underground, which is being sued for one of its website users posting the first four paragraphs of a 34 paragraph story."

So they are suggesting that under Federal copyright law, the 'right to sue for claims of infringement due to X' cannot be assigned without also assigning an infringed right ?

I wonder what this says about associations such as the **AA which sue people for infringement of their members' copyright works, but the **AA itself doesn't own any of the copyright protected rights to the works....

Re:Interesting

[pjt33]

The RIAA, at least, doesn't sue: it's the individual records companies who do that.

Re:Interesting

[jbengt]

As I understand the agreement (I only read part of it and IANAL, so caveat emptor) the copyright is assigned, but only after the infringement has occurred, meaning that Righthaven has no standing to sue. Also, the actual right to copy, make derivative works, and publish are suppopsed to be retained by the Las Vegas Journal Review, making the copyright "transfer" questionable.

My guess on the BSA or the *AAs, is that if and when they sue on the behalf of copyright holders, the actual copyright holder's name is used as the plaintiff in court.

That's a lot

[CruelKnave]

I thought more than 250 was a lot, but over more than 250? Now that's really a lot!

Re:That's a lot

[WrongSizeGlass]

I thought more than 250 was a lot, but over more than 250? Now that's really a lot!

Hmm, I guess they meant screw over more than 250.

Forfeiture domain names

[Anonymous Coward]

Forfeiture domain names? Are they serious? Do the really think they get to steal someone's domain name for posting part of an article? (Or even a whole article, or a hundred whole articles, I don't see what basis they have for trying to take the domain names)

Right to sue

[currently_awake]

if the Las Vegas Review-Journal has sold the right to sue, does that mean they can't sue for copyright infringement?

Re:Right to sue

[Overzeetop]

Probably only if the right was exclusive, and even then it would depend on wording. If the actual transfer was deemed unlawful, then the right would still revert back to the holder.

Re:Right to sue

[DarkVader]

Not if the contract is legally void. The judge might include losing the right to sue over past articles as part of a punitive judgement, though.

Workaround

[tepples]

It also makes sense that assigning the right to sue isn't enough, because that company has nothing to lose should you infringe - they haven't been harmed.

The workaround is to sell Righthaven a bundle of A. the exclusive right to sublicense a given set of articles to a given set of sites during a period of a few years, and B. the right to sue the same sites. That way, Righthaven is harmed by infringement of copyright in those articles.

Re:Workaround

[UnknowingFool]

While that sounds like it could work, judges don't like it when you try to work around the law and Righthaven may have to prove actual harm and not theoretical harm. If Righthaven never actually sublicenses any work then even if they can prove infringement, they can't prove actual harm for damages. In cases where plaintiffs have to prove harm, the harm must be tangible and certain enough to calculate damages.

If someone totals my van, I can get damages for the value of the van. I also sue for the loss of business due to my delivery business. However, if I haven't started such a business that portion will be thrown out. If I've started a business and have no customers, that is also thrown out. The only way I can get damages for lost business if I had regular customers or can prove with certainty that I would have had a customer had it not been for the vehicle's destruction. "I was to start delivering for Bill on Tuesday but since the van was destroyed on Monday, he went with a competitor."

Re:Workaround

[jbengt]

The issue (or one of the issues) seems to be that the copyright is only assigned to Righthaven after the infringement takes place, and the letter of the law does not allow a party to sue for damages unless they had a a copyright interest at the time of the infringement. Also, though the agreement assigns the "copyright", the wording appears to have the LV Journal retain all actual substantial rights except for suing, and gives no actual right to copy, make derivative works, or distribute to Righthaven - that calls into question whether the copyright is actually assigned. Another complicating factor may be that the agreement allows the LV Review Journal to have the copyright reassigned back to them after a time period, and, just about any time they (reasonably) please during that time period - that seems to make it less of an assignment and more of a loan.
IANAL, YMMV, etc.

Re:Workaround

[DustyShadow]

No no no. A copyright owner may assign the right to sue for past infringement if the assignor also assigns the exclusive right that was infringed. The problem with righthaven and the plaintiff in the silvers case is that the assignee/plaintiff was not assigned one of the exclusive rights.

Re:Workaround

[jonbryce]

The question is, if you had licenced the material in question properly, would Righthaven have got any money out of it? The answer is no, so Righthaven has no capacity to sue.

"it's heyday" ???

[Anonymous Coward]

Should be "its heyday".

charities ?

[anonymous9991]

I thought copyright didn't apply to charities in most cases

Re:Can this judge reverse all previous cases? (IAN

[green1]

That part is easy. Subpoena the contract.

Or ASCAP, BMI, SESAC

[pavon]

As pjt33 pointed out, all of the lawsuits related to online filesharing have been filed by the actual recording companies / movie studios (which do hold copyright), not the by the RIAA / MPAA. Considering how slashdot reports the cases it is an easy mistake to make.

But you do have a good point. What about ASCAP and BMI who do regularly sue bars and other venues that play music without paying royalties? They do not require copyright assignment.

Re:Or ASCAP, BMI, SESAC

[Lloyd_Bryant]

But you do have a good point. What about ASCAP and BMI who do regularly sue bars and other venues that play music without paying royalties? They do not require copyright assignment.

Because they are not concerned with copyright infringement. A public performance of a song is *not* copyright infringement.

Under copyright law, you do not have to negotiate an agreement for royalties in order to use a work in a "public performance". Instead, the law specifies a "statutory royalty" that is due whenever a work is used in a public performance, with the rate of this royalty being set by the government (the Copyright Royalty Board). You may, if you wish, try to negotiate with them for a contractual royalty rate different from the statutory rate, but unless you have done so, you are obligated to pay the statutory rates.

ASCAP and BMI are just agents responsible for collecting the portion of those statutory royalties owed to the songwriters/publishers of songs used in public performances. They aren't suing because you infringed copyright (you didn't) - they are suing because in using the work in a public performance you've incurred statutory royalties, which they are (in theory) authorized to collect and fairly distribute it.

(The portion of the statutory royalties due to the artists/labels is collected by an organization called Sound Exchange).

In summary - to sue over copyright infringement, you need to be the holder of the rights to the work in question. But to sue over the statutory royalties for a public performance, you only need to be the agent authorized to collect those royalties.

Re:Or ASCAP, BMI, SESAC

[jbengt]

What about ASCAP and BMI who do regularly sue bars and other venues that play music without paying royalties? They do not require copyright assignment.

Are you sure that ASCAP and BMI are actually the named plaintiffs in those cases?

Re:Or ASCAP, BMI, SESAC

[Kirijini]

Under copyright law, you do not have to negotiate an agreement for royalties in order to use a work in a "public performance". Instead, the law specifies a "statutory royalty" that is due whenever a work is used in a public performance, with the rate of this royalty being set by the government (the Copyright Royalty Board).

This is inaccurate.* Public performance of a musical work is an exclusive right awarded to the owners of the musical work's copyright. ASCAP and BMI are collective rights organizations, to whom the musical work copyright owners assign licenses. ASCAP and BMI get royalties from bars and any other place where music is performed (radio, tv, concert halls, restaurants, etc.) and then distribute that money to the owners of the musical works copyright.

What you're describing is the digital performance right, which is completely different. First of all, it only applies to sound recordings, which have a completely different copyright than musical works. The "authors" of a musical work are songwriters or composers; the "author" of a sound recording is a musician or "recording artist." Second, it only applies to performances of the sound recording over the internet (or other ways of digitally sending/performing a sound recording), not all public performances of sound recordings. A bar that has a sound system can play any sound recording it wants without paying the copyright owner of that sound recording - but it would have to pay for a blanket license from ASCAP and/or BMI for the public performance of the musical work.

*I do understand your confusion, though - musical works do have a compulsory license - however, it's for the mechanical reproduction of the musical work. See 17 USC 115. The limits on sound recording rights (i.e., no public performance right) and the compulsory license for digital performance rights are in 17 USC 114.

Re:Or ASCAP, BMI, SESAC

[Kirijini]

What about ASCAP and BMI who do regularly sue bars and other venues that play music without paying royalties?

ASCAP and BMI are a completely different of entity than the RIAA, or Righthaven.

The RIAA is a trade group for record companies. It performs certain functions for the record companies that would be inefficient for them to do individually - namely, lobby congress & the US trade representative, and public education campaigns about copyright law. ASCAP and BMI are not trade associations for music publishers - that's the NMPA (National Music Publishers Association).

Righthaven, apparently, is a shell company that only acquired a "right" to sue for infringement - no other rights were acquired/licensed at all. As TFA and others have stated, this is so obviously legally invalid that its surprising they actually thought it would work.

ASCAP and BMI acquire actual rights from copyright owners - namely, the public performance right. Owners of musical works (typically either a publisher or a composer/songwriter) assign to ASCAP or BMI the nonexclusive right to perform their work publicly. ASCAP and BMI gather up a whole bunch of such public performance rights, then sublicense all of those rights (a "blanket license", i.e., permission to perform any musical work in ASCAP or BMI's repertoire) to places where music might be performed - bars, restuarants, radio and tv stations, etc. Those places pay a single annual fee; all such fees are pooled by ASCAP/BMI and then distributed to the owners of musical works in proportion to how often the musical works were performed (this is usually an estimate).

ASCAP is a nonprofit, member-owned collective rights group for music publishers and writers (so, it's maybe a little bit like a trade group); BMI is a for profit collective rights group owned by NAB (National Association of Broadcasters) - so it's actually owned by a trade group of musical work *users*, rather than authors/owners.

Or BSA

[pavon]

The Business Software Alliance is another that regularly threatens and sues people on behalf of their members, and who does not require copyright reassignment.

Not the only judge they've ticked off

[Fnord666]

Apparently Judge Hunt isn't the only one who is relatively fed up with them. According to an article written by joemullin on paidcontent.org, Judge John Kane slammed RH's business model, writing:

"[W]hether or not this case settles is not my primary concern. Although Plaintiffâ(TM)s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff's wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

Since Judge Kane is presiding over all of RH's cases in Colorado, that probably does not bode well for them either.

Re:Not the only judge they've ticked off

[oracleguy01]

It is very refreshing to read this. Maybe all hope is not lost if the court system is finally wising up to this behavior.

Car analogy

[colinrichardday]

Correcting apostrophe errors on Slashdot is, in the words of Martin Sheen in Apocalypse Now, like handing out speeding tickets at the Indy 500.

Re:Car analogy

[Anonymous Coward]

error's

FTFY

Re:Car analogy

[cbiltcliffe]

Correcting apo'strophe error's on 'Slashdot i's, in the word's of Martin 'Sheen in Apocalyp'se Now, like handing out 'speeding ticket's at the Indy 500.

If you're going to do it, do it right.

Re:Can this judge reverse all previous cases? (IAN

[Anonymous Coward]

Those giant judgments in copyright cases are not to recuperate lost profits, they are statutory. They are meant to punish, not to recuperate any losses. Of course, if they can prove any damages the infringer is also responsible for that as well.

Statutory damages

[tepples]

Righthaven may have to prove actual harm and not theoretical harm.

Not if copyright in the work is registered. Copyright law provides a minimum $750 in statutory damages. Is Disney damaged if I, say, make and sell copies of the film Song of the South, which Disney has steadfastly refused to distribute on VHS in the United States or on DVD, Blu-ray, or paid download anywhere in the world?

Re:Statutory damages

[UnknowingFool]

Is Disney damaged if I, say, make and sell copies of the film Song of the South, which Disney has steadfastly refused to distribute on VHS in the United States or on DVD, Blu-ray, or paid download anywhere in the world?

Your Disney example is not analogous to the situation you posited. Righthaven is not the owner it is merely a sublicensee. If Disney assigned ownership of rights (which is the whole point of this article), then they have standing to sue and get statutory damages. Even then they must first prove infringement. In the cases Righthaven have sued, it's not clear that there was infringement because the defendants could claim fair use. Their usage of the copyrighted material was minor (selected sections not the whole work), non-commercial, and/or a criticism of the selected work. Normally this is worked out if the plaintiff had first contacted the defendants which they didn't.

Re:Statutory damages

[Anonymous Coward]

Can Righthaven release the work themselves? If they cannot, then they do not have standing to sue over ownership. They don't own it.

Re:Statutory damages

[AK Marc]

If there was provably no harm, then you can't sue. Even if there are statutory damages. How can that be? Because first you have to win the suit before damages are awarded. To sue, you must have had some loss. If you can prove, as the defendant, that the plaintiff could have incurred no loss, then the case will not be won by the plaintiff, even if the plaintiff would have collected at least $750 had they won. The ability to be awarded statutory damages if you win doesn't prove damage was done.

The point of statutory damages is that if you (as the plaintiff) can't prove what the damages were, you can point to the statute. That's separate and unrelated to whether damages are owed.

Damages for the first week

[tepples]

the letter of the law does not allow a party to sue for damages unless they had a a copyright interest at the time of the infringement.

Then Righthaven could revise its future standard form contracts to make it look like a license clearinghouse. The Journal could make this exclusive license to Righthaven, and Righthaven could send a PGP-signed takedown request the same day. Then it would sue a week later on the basis that the infringing copy was available on the web for that one week.

Another complicating factor may be that the agreement allows the LV Review Journal to have the copyright reassigned back to them after a time period

I was under the impression that time-limited exclusive licenses were standard practice elsewhere in the entertainment industry.

and, just about any time they (reasonably) please during that time period

So you claim the deal is invalid because the licensee can terminate it without an Early Termination Fee. I don't follow the reasoning. As I understand it, Righthaven could solve all the problems the judge found by rephrasing the deal as a sublicensable exclusive license.

Re:Damages for the first week

[jbengt]

Then Righthaven could revise its future standard form contracts to make it look like a license clearinghouse. The Journal could make this exclusive license to Righthaven, and Righthaven could send a PGP-signed takedown request the same day. Then it would sue a week later on the basis that the infringing copy was available on the web for that one week.

Yes, they probably could change the way they contract for this business to avoid the particular problem, but I doubt they could do it the way you are suggesting.

I was under the impression that time-limited exclusive licenses were standard practice elsewhere in the entertainment industry.

They may be standard practice in licensing arrangements, but licenses are not transfer of copyrights.

So you claim the deal is invalid because the licensee can terminate it without an Early Termination Fee. I don't follow the reasoning. As I understand it, Righthaven could solve all the problems the judge found by rephrasing the deal as a sublicensable exclusive license.

I did not intend to claim anything, the defendant is making the claims. And the judge ruled that Righthaven cannot sue for copyright infringement if they don't own the copyright, so, if that is upheld, an license would not be enough, exclusive or not.

Public Rights

[b4upoo]

This is a very good reason for all contracts to be open to public inspection. Courts cost the tax payers large sums of money. If all of the suits are reversed the expense incurred by the public will be severe.
                        It is an interesting concept that a business or an individual might be able to sell the right to sue for another parties losses. For example what if a private investor were to contract with me to get all benefits from any injuries I might sustain in a traffic accident in exchange for a lump sum in hand? The possibilities seem sinister and endless.

Re:Public Rights

[Required Snark]

This is already happening for high paid executives

The practice of financing executive compensation using corporate-owned life insurance policies remain controversial. On the one hand, observers in the insurance industry note that "businesses enjoy tax-deferred growth of the inside buildup of the [life insurance] policy’s cash value, tax-free withdrawals and loans, and income tax-free death benefits to [corporate] beneficiaries." On the other hand, critics frowned upon the use of "janitor's insurance" to collect tax-free death benefits from insurance policies covering retirees and current and former non-key employees that companies rely on as informal pension funds for company executives. To thwart the abuse and reduce the attractiveness of corporate-owned life insurance policies, changes in tax treatment of corporate-owned insurance life insurance policies are under consideration for non-key personnel. These changes would repeal "the exception from the pro rata interest expense disallowance rule for [life insurance] contracts covering employees, officers or directors, other than 20% owners of a business that is the owner or beneficiary of the contracts."

http://en.wikipedia.org/wiki/Executive_pay#United_States

So hugh corporations take out life insurance policies to fund the retirement pay of high level executive, and then when the execs die the companies get the money back tax free. And they also get to deduct the life insurance payments from their taxes. When they don't pay taxes, guess who foots the bills? Just another legal way of stealing money.

Ex Post Facto Copyright

[Nom du Keyboard]

What has always really bothered me about these cases is that RightsHaven didn't even own the right to sue when the infringement first occurred. They only got the rights afterwards and then claimed that the infringement that never infringed them when it had initially occurred was actionable to them. How judges let them get away with this ex post facto claim is totally beyond me.

Re:Ex Post Facto Copyright

[wvmarle]

It wouldn't be the first time that rights have been traded, and that after the trade the new rights holder sues for infringement that started long before the transfer of rights.

There have been examples of just that on Slashdot before, related to the music industry. Sorry too lazy to look for references.

Re:Ex Post Facto Copyright

[91degrees]

But it's certainly a bizarre position to take.

Righthaven bought the rights where both seller and buyer were fully aware that they had already been infringed - this is why Righthaven bought them and the publisher sold them after all. Righthaven have no interest in exploiting the articles commercially. Yet still they're claiming the infringement is causing them a loss.

Re:Can this judge reverse all previous cases? (IAN

[DustyShadow]

No. The plaintiff must choose either actual or statutory damages. Can't get both.

Exclusive licenses and grounds to sue

[tepples]

And the judge ruled that Righthaven cannot sue for copyright infringement if they don't own the copyright, so, if that is upheld, an license would not be enough, exclusive or not.

If an exclusive licensee lacks grounds to sue, then please explain Atari v. Philips. Atari, the U.S. exclusive licensee of Namco's Pac-Man game, successfully sued Philips for making the main character of Munchkin look and move too much like Pac-Man.

Re:Exclusive licenses and grounds to sue

[jbengt]

Plaintiff registered its works in the United States in May and November 1980

Standing can be fixed

[tepples]

Can Righthaven release the work themselves?

It's an attorney's job to figure out how to fix this lack of standing. So even if Righthaven can't make and distribute copies itself under this version of its standard contract with clients, it probably can under the next version of the contract. Atari v. Philips shows that an exclusive licensee has standing to sue.

Re:Standing can be fixed

[UnknowingFool]

When defendants bring this up to the judges, the Judges might not be happy. They are already seem a bit peeved with Righthaven.

Cannibalization

[tepples]

Disney could claim that it was harmed because infringing copies of Song of the South compete in the market with lawfully made copies of its newer works.

Re:Cannibalization

[AK Marc]

Righthaven did not have copyright authorization to print and distribute the works. Thus, even if somehow technically violating a copyright of Righthaven, Righthaven did not and could not have suffered a loss. Statutory or actual damages will never be considered if they can't win the suit. And you have to have had some loss.

Copyright tried statutory damages because it was so hard to determine losses. However, at this point it isn't working as intended. It would be a better scheme to return to actual damages only, but to allow some multiplier (say, 10x) if it can be proven that there was some actual loss that can't be counted.

But that's veering away from this case. It is provable in court that Righthaven could not have suffered any loss. Without damages, you can't sue to recover damages (even if you could have recovered statutory damages). Someone that copies a Disney something, even if it hadn't been released since the first theatrical run, can't prove in court that Disney suffered no damage. So the Disney comparison is irrelevant to the court case. It may be morally equal, but because of the strict burden of proof, Disney will likely win every time.

Re:Cannibalization

[tepples]

Righthaven did not have copyright authorization to print and distribute the works.

As I've been saying in several other comments, Righthaven could easily fix this in the next revision of its contract. The new version of the contract would explicitly give Righthaven the exclusive right to display the Journal's stories on sites X, Y, and Z.

Re:Cannibalization

[AK Marc]

Which has no bearing on the case in question. And would have worked much better if they hadn't already sued without cause. When it comes up after the contract you mentioned, it's quite possible that showing that they didn't ever profit from the copyrights they were assigned would be sufficient to demonstrate they didn't incur any loss. So just a contract change wouldn't be enough. They'd have to actually make something from it now (before, they only would to have needed to show they were intending to make something from it). Though that's not a tried and true defense for the rounds after your hypothetical contract adjustment. It would still be valid, as you (as the defendant) need only prove that they did not lose anything to get the suit dismissed. Changing the contract with no other changes will not affect that at this point.

I think you misunderstand "sealed"

[LrdDimwit]

Sealed means that the document is not released to the public. All court documents are ordinarily released to the public, as a matter of public policy. But secrets that you don't want revealed can be placed under seal, in which case they are either kept out of the public record completely, or redacted.

Both sides (plaintiff and defendant) and the judge in any suit ordinarily see the sealed documents. They're just not allowed to talk publically about what's in them, and the public doesn't get to see them.

For REALLY sensitive information, you can get a protective order, so that only certain people on one side are allowed to see the information - a protective order might allow an attorney to see the document, but not the attorney's client. In a case where one company sued a competitor for industrial espionage, for example, a company would not want to disclose to its competitors the information it's trying to keep secret. Yet it can't sue without revealing that information.

In this case, yes, the plaintiff does have to prove they have the right to sue. And they wanted to keep that document under seal - they didn't want the public to see it. Of course, the defendant gets to see it (for the reasons you outline). Justice requires that you be informed of the nature of the charges against you.