Monthly Archives: July 2011

Making Sense of “Fair Use”

Neil Netanel, a professor at UCLA Law School and my former colleague when I was with Fulbright & Jaworski, has written an excellent study of the evolution of how courts apply the fair use doctrine entitled Making Sense of Fair Use, forthcoming in the Lewis & Clark Law Review (v.15, No.3) and available here.

As Prof. Netanel describes, commentators have long complained about the seemingly ad-hoc and arbitrary outcomes of copyright infringement cases in which defendants adopt a “fair use” defense.  After reviewing several prominent law review articles that survey the case law in an attempt to determine a predictable pattern in fair use cases, Prof. Netanel conducts his own study and finds that the fair use landscape is less arbitrary than other scholars have suggested.

Prof. Netanel begins by defining the two dominate fair use analysis paradigms: “market-centered” and “transformative use.”

“The market-centered paradigm treats fair use as an anomalous exception to the copyright owner’s exclusive rights, applicable only in cases of irremediable market failure.  It owes its origin to Professor Wendy Gordon’s highly influential law review article, published in 1982, Fair Use as Market Failure: A Structural Analysis of the Betamax Case and Its Predecessors, in which Gordon argued that fair use should be available only when the defendant meets the heavy burden of proving both that high transaction costs pose an insurmountable obstacle to copyright licensing and that the use serves an identifiable public benefit that would outweigh any harm caused to the copyright owner by granting fair use.”  This interpretation of fair use was adopted by the Supreme Court in Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

“The transformative use paradigm … was set out by Judge Pierre Leval in his law review article, Toward a Fair Use Standard, published in 1990, and adopted by the Supreme Court in 1994 in Campbell v. Acuff-Rose [510 U.S. 569 (1994)].  Under this paradigm, the key question in fair use analysis is whether the defendant’s use is ‘transformative,’ not whether the defendant might have obtained a license or the copyright owner would have reasonably consented to the use.  The transformative use paradigm views fair use as integral to copyright’s purpose of promoting widespread dissemination of creative expression, not a disfavored exception to copyright holders’ exclusive rights.”

Rather than finding that courts arbitrarily apply fair use analysis, as previous studies have suggested, Prof. Netanel finds that “[since] 2005, the transformative use paradigm has come to dominate fair use case law and the market-centered paradigm has largely receded into the pages of history.  Today, the key question for judicial determination of fair use is not whether the copyright holder would have reasonably consented to the use, but whether the defendant used the copyrighted work for a different expressive purpose from that which the work was created.”

Minnesota Judge Finds $1.5mm Jury Award Unconstitutional in File-Sharing Case

For the third time, Chief Judge Davis of the District of Minnesota federal court has reduced a jury’s award of statutory damages against Jammie Thomas-Rasset.  In October, 2007 the first jury awarded plaintiff record label Capital Records $222,000 based on Thomas-Rasset’s illegal sharing of 24 songs ($9,250 / song).  Judge Davis awarded a new trial because he believed he had given improper jury instructions.

In June, 2009, a second jury awarded $1,920,000 for illegally sharing the same 24 songs ($80,000 / song).  Judge Davis remitted the jury’s award down to $2,250 / song (or $54,000), but Capital Records rejected the remittitur and a third trial was held on the issue of damages.

Finally, in November, 2010, a third jury awarded $1,500,000 ($62,500 / song).  This time, realizing remittitur was not a viable option to ending the litigation, Judge Davis has held that the jury’s award violates Thomas-Rasset’s constitutional due process rights.  Specifically, Judge Davis held that “an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.”

Judge Davis wisely avoids the faulty logic of Judge Gertner’s similar due process analysis in Sony BMG Music Entertainment v. Tenenbaum, 721 F. Supp.2d 85 (D. Mass. 2010).  In reducing the jury’s award of $675,000 ($22,500 for each of the 30 songs at issue) to $2,250, Judge Gertner based her award on Judge Davis’ remitted award in Thomas-Rasset v.2.  She analyzed the constitutionality of the jury’s verdict under the Supreme Court’s BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) (“Gore”) standard, which provides a three factor test to determine whether an award of punitive damages is constitutional.  The myriad flaws in her decision are for another post.

Judge Davis wisely adopts the Supreme Court’s standard in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67 (1919) (“Williams”), in which the Court established a three factor test to determine the constitutionality of statutory damages.  What is fascinating about Judge Davis’ opinion is that it appears that the jury’s verdict satisfies each of the Williams factors, and yet he still finds the award unconstitutional.

For example, the first factor is the public interest.  Here, Judge Davis concludes “There is a significant public interest in vindicating copyright.”  The second factor is the opportunities to commit the offense.  Here again, Judge Davis concludes “It is clear that there are ‘numberless opportunities for committing the offense’ of illegally downloading and distributing sound recordings online.”  Judge Davis continues, “The third Williams factor [is] ‘the need for securing uniform adherence to established passenger rates.’ The need for deterrence also exists in this case.”  So, all three Williams factors point towards plaintiff Capital Records.

Judge Davis, however, begins the final section of his opinion by stating:

“To protect the public’s interest in enforceable copyrights, to attempt to compensate Plaintiffs, and to deter future copyright infringement, Thomas-Rasset must pay a statutory damages award. Plaintiffs have pointed out that Thomas-Rasset acted willfully, failed to take responsibility, and contributed to the great harm to the recording industry inflicted by online piracy in general. These facts can sustain the jury’s conclusion that a substantial penalty is warranted. However, they cannot justify a $1.5 million verdict in this case.”

In other words, Judge Davis’ entire constitutional due process analysis appears to boil down to, “I personally think this is too high an award.”  There is no further legal support to his position.  In fact, later in the opinion he states “The Court accords deference to the jury’s verdict. Yet an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award against an individual consumer, of limited means, acting with no attempt to profit, is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

But the jury’s verdict is quite clearly not obviously unreasonable.  As noted above, the three juries in this case awarded damages of $9,250, $80,000, and $62,500 per song.  The jury in Tenenbaum awarded $22,500 per song.  While that range is pretty wide, the juries have awarded between 4 and 35 times as much as both Judge Davis and Judge Gertner find “obviously unreasonable.”

Congress created the statutory damages scheme of the Copyright Act to allow juries to determine awards within a range, which all three juries did in the Thomas-Rasset case.  I’m confident that the 8th Circuit will reverse the inevitable appeal.

Judge Davis’ opinion is below:
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George Clinton Looks to Tear the Roof Off Seattle Law Firm

Why must I feel like that
Why must I chase the cat
Nothin’ but the dog in me
George Clinton, Atomic Dog © 1982

George Clinton has filed a lawsuit against Seattle law firm Hendricks and Lewis (“H&L”) and named partner Oscar Lewis alleging legal malpractice in H&L’s representation of Clinton.  The alleged facts are somewhat tortured (as is, unfortunately, most things in Clinton’s legal life), but the charges against H&L and Lewis are extremely serious.

According to the complaint, Clinton came to know Lewis and H&L during his 2003-05 litigation against Nene Montes, Clinton’s former manager, seeking the return of certain masters Clinton recorded as Funkadelic.  Clinton was introduced to Lewis and H&L because they had handled a RICO action on behalf of Jimi Hendrix’ estate regarding Hendrix’ masters.  According to the complaint, as part of their representation of Clinton, Lewis and H&L received a report from a forensic document expert who determined that the two assignments on which Montes was basing his claim of ownership of Clinton’s Funkadelic masters were fabrications.  Clinton won his case against Montes.

Fast forward to 2007 when H&L and Lewis file suit against Universal on behalf of Clinton on a breach of contract claim.  Here is where things get interesting.  Attached to the complaint, which Clinton himself did not verify, were the two assignments at issue in the Montes case that Clinton’s forensic document expert had determined were forged.  According to the complaint, H&L and Lewis had actual knowledge that these purported assignments were fake–based on their involvement in the Montes suit–but included them as true and correct copies nonetheless.  The complaint then alleges that prior to his deposition “… ATTORNEY LEWIS instructed and directed MR. CLINTON to testify under oath that he had, in fact, signed the October 17, 1980 Agreement upon which the complaint was based.”  At his deposition, Clinton answered that he did not sign the document, which his forensic document expert had determined was fake.  On the day before trial, Lewis and H&L file an emergency motion to withdraw from the case, which is granted.  Clinton lost the case at the district court level, but the 9th Circuit reversed and remanded back to the district court, where the case is still pending.

Attorney malpractice cases are always tricky, but if the allegations in his complaint are true, Lewis and H&L could be in trouble.

The complaint is below
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Drop It Like It’s Hot[file]

When the pimp’s in tha crib ma
Drop it like it’s hot
Snoop Dogg, Drop It Like It’s Hot © 2004

Judge Adalberto Jordan of the Southern District of Florida has dismissed plaintiff Disney’s direct infringement claims against defendant Hotfile Corp. and its owner Anton Titov.  Disney and a group of motion picture studios sued Hotfile and Titov alleging that Hotfile’s lockerbox service directly infringed the studio’s films and induced infringement (secondary infringement) of same.  In dismissing the claim of direct infringement, Judge Jordan found that Disney had failed to plead facts sufficient to show that Hotfile or Titov had engaged in the kind of violitional conduct that was required.

I wonder, however, if this dismissal will survive an inevitable appeal.   Judge Jordan relies on Religious Technology Center v. Netcom On-Line Communication Services, 907 F. Supp. 1361 (N.D. Cal. 1995) (Netcom) and its progeny in reaching his decision.  For example, he cites Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Cartoon Network) for the proposition that “a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.” 

Cartoon Network, however, is easily distinguishable.  In that case, Cablevision’s remote DVR system responded to commands from a Cablevision subscriber to create a single, unique copy of a TV program for later playback by that particular subscriber.  As Judge Jordan notes in his opinion “A visitor to can upload electronic files to the website. That information is then stored on Hotfile’s servers, on which Hotfile can save and host millions of files. The visitor, in turn, receives a unique link that begins with—say, The Hotfile servers then make five more copies of the uploaded files, and each copy receives a unique link.” (emphasis added)  The Hotfile visitor didn’t make 5 extra copies.  Hotfile made those 5 extra copies, presumably to make the file more widely available for download.  I don’t think the logic of Netcom and Cablevision supports a holding that Hotfile’s decision to make 5 additional copies after the visitor has uploaded a single copy isn’t exactly the kind of violitional conduct required to support a claim of direct infringement necessary to survive a motion to dismiss at the pleading stage.

Hotfile’s Motion to Dismiss is below
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Disney’s Response is below
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Judge Jordan’s Order is below
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Will Barbie Have to Sell Her Dreamhouse?

In the “wow, litigation is expensive” category, Mattel is objecting to a Discovery Master’s determination that Mattel should pay MGA Entertainment $108,000,000 in legal fees in connection with the long-running litigation over Mattel’s Barbie dolls and MGA’s Bratz dolls.  By way of background,  Mattel sued MGA over its Bratz line of dolls, claiming that Carter Bryant, who had been an employee of Mattel before joining MGA, had developed the Bratz concept while he was a Mattel employee.  In the initial trial, a jury found that MGA’s popular Bratz dolls infringed Mattel’s famous Barbie dolls and awarded Mattel $100 million.   After finding that the district court judge erred in finding that as a matter of law the employment agreement between Mattel and Carter Bryan gave Mattel ownership of the Bratz brand, the 9th Circuit Court of Appeals reversed the initial $100 million verdict and ordered a retrial.  On retrial, the new jury found that the Bratz line did not infringe on Mattel’s copyright and awarded MGA nearly $88.5 million in damages against Mattel, saying that the toymaker willfully and maliciously appropriated MGA’s trade secrets.   MGA then sought to recover its attorneys’ fees, which it claimed were $162,000,000.  Yes, you read that correctly.  One Hundred and Sixty Two Million Dollars.

A Discovery Master heard arguments regarding the issue and found that MGA should recover $108,000,000.  In case you’re wondering how someone runs up $108,000,000 in legal fees, Mattel’s Objections to the Discovery Master Report and Recommendation re Application for Attorneys’ Fees, which is produced below, is document number 10,678 on the docket report.

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Don’t Mess with Tony Stark

We are the G, O-D’s
And we came to rock, the spot
Like Ironman Starks
Ghostface Killah, Daytona 500 from the album Ironman © 1996

Its been a tough week at Sony Music Entertainment (“SME”).  First, they get sued by famed TV show theme music composer Jack Urbont.  Then they get sued by a former University of North Carolina – Chapel Hill student (where I got my JD and PhD) Anthony Stokes.

In the first case, Urbont, who composed such TV show theme songs as Guiding Light, One Life to Live, and General Hospital, composed the theme music to the original 1966 cartoon series The Marvel Super Heros segment featuring the character Iron Man (the Iron Man Theme).  In his complaint, Urbont claims that Dennis Coles p/k/a Ghostface Killah used samples from the Iron Man Theme on his 2000 release Supreme Clientele.  Ghostface is apparently a big fan of Iron Man, even having one of his songs appearing in the 2008 eponymously named movie.

One question is why Urbont waited so long to sue.  After all, under § 507(b) of the Copyright Act, no civil action for copyright infringement can be maintained unless it is commenced within three years “after the claim accrued.”  In his complaint, Urbont notes that he “is over 80 years old and would not normally encounter the Defendants’ rap music in the ordinary course of his dealings in the music industry or otherwise.”

Another interesting side note is the presence of Richard Busch of Nashville-based King & Ballow on Urbont’s legal team.  Busch has made quite a name for himself in the entertainment business recently, including a significant win at the 9th Circuit regarding the manner in which Universal was calculating rapper Eminem’s royalties for digital sales.

Urbont’s Complaint is below
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In the second case, Anthony Stokes in 2004 while a student at UNC wrote and recorded and registered his song Where Are You Now.  That same year John Legend came and performed at UNC.  After the concert Stokes approached Legend during an autograph signing session.  Stokes gave Legend a demo CD containing Where Are You Now and, according to Stokes, Legend agreed to listen to it.  Stokes alleges that Legend’s song Maxine’s Interlude on his 2006 album Once Again copies Stokes’ Where Are You Now.

Stokes Complaint is below:
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Nevada Company is Gone with the Wind

A.V.E.L.A., the Nevada company that recently lost an unfair competition case brought by the estate of Bob Marley (read about it here) is back in the news.  The 8th Circuit has largely affirmed an Eastern District of Michigan award of summary judgment to Warner Bros. over A.V.E.L.A.’s use of characters from Gone with the Wind, Wizard of Oz, and the cartoon characters Tom and Jerry.  While not directly related to music, the decision is an interesting analysis of the scope of copyright protection in movie and cartoon characters.

When Warner Bros. originally released Gone with the Wind and Wizard of Oz back in 1939 [amazing to think both movies were released in the same year] it produced and distributed a great deal of printed marketing collateral to promote the movies; e.g., movie posters.  It failed, however, to include the proper copyright notice on these printed materials.  Because these materials were distributed in 1939 the question of whether they are entitled to copyright protection is governed by the 1909 version of the act.  In that version, failure to include the required notice forfeited any copyright in the work, which fell into the public domain.  The 8th Circuit concluded that Warner Bros. had no copyright in the promotional materials in question and held that A.V.E.L.A. could reproduce and distribute copies of those materials on any media (i.e., as posters, on t-shirts, etc.) so long as such reproductions were of the original public domain works.

What A.V.E.L.A. actually did–and for which the 8th Circuit affirmed the district court’s permanent injunction–was to take elements fr0m various of these promotional materials and place them within a new image.  For example, A.V.E.L.A. took the image of Judy Garland as Dorothy Gale as displayed in the Warner Bros. promotional materials–which the 8th Circuit considered in the public domain–and added her famous line from the movie “There’s no place like home.”  [The phrase itself is also in the public domain, because the book on which the movie is based–The Wonderful Wizard of Oz by Frank Baum was first published in 1900–thus having entered the public domain in 1956.]  The the Court concluded:

“Even if we assume that each composite work is composed entirely of faithful extracts from public domain materials, the new arrangement of the extracts in the composite work is a new increment of expression that evokes the film character in a way the individual items of public domain material did not. For example, the printed phrase “There is no place like home” from the book The Wizard of Oz and a publicity material image of Judy Garland as Dorothy, viewed side by side in uncombined form, are still two separate works, one literary and one a picture of an actor in costume. In contrast, a T-shirt printed with the phrase “There’s no place like home” along with the same image of Judy Garland as Dorothy is a new single work that evokes the film character of Dorothy much more strongly than the two separate works.  Because “the increments of expression added [to the public domain materials] by the films are protectable,” one making a new work from public domain materials infringes “if he copies these protectable increments.” (citation omitted). Like the juxtaposition of an image and a phrase, a composite work combining two or more separate public-domain images (such as Judy Garland as Dorothy combined with an image of the Emerald City) also adds a new increment of expression of the film character that was not present in the separate images. Accordingly, products combining extracts from the public domain materials in a new arrangement infringe the copyright in the corresponding film.”

The 8th Circuit’s Opinion is below
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A.V.E.L.A.’s opening appeal brief is below
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Warner Bros. responsive brief is below
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How I Could Just Infringe a Band?

Heres an example
Just a little sample
How I could just kill a man
Cypress Hill, How I Could Just Kill a Man © 1991

A quick note about the dangers of sampling.  Sony Music Entertainment has apparently settled an infringement claim brought by Drive-In Music.  In its suit, Drive-In Music claims that its copyrighted song Come on In by The Music Machine was sampled by the band Cypress Hill in their 1991 hit song How I Could Just Kill a Man.  The terms of the settlement were not announced.

The original song by The Music Machine is here:

Cypress Hill’s song is here:

The First Amended Complaint is here:
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Timbaland Owes No Apology to Norwegian Demoscener

It’s too late to apologize, it’s too late
I said it’s too late to apologize, it’s too late
Timbaland, Apologize (featuring OneRepublic), Shock Value © 2007

This is one of those cases that only the Copyright Act can produce.  Built definition upon definition, the outcome is not nearly as interesting as the interplay of the various chapters of the Act and the importance of the definitions in §101.

Glenn Rune Gallefoss, a citizen and resident of Norway (“Gallefoss”) wrote and recorded Acid Jazzed Evening (“AJE”) in 2002, which he based on an arrangement created in 2000 on a different kind of computer by Janne Suni (“Suni”), also of Finland, and from whom Gallefoss secured permission.  Gallefoss first authorized publication of AJE in an Australian “disk magazine” called Vandalism News in 2002, where it was made available for downloading and copying, with Gallefoss’ knowledge and approval.  In  2007, Gallefoss transferred his rights to the sound recording to Kernal Records.  Kernal filed suit against Mosley (a.k.a. Timbaland) for allegedly copying AJE into Nelly Furtado’s 2006 song Do It.

The key issue before the court was whether Gallefoss making AEJ available on the Internet for download in 2002 made AEJ a “United States work” for which copyright registration had to be secured before Kernal could bring suit.  Let’s take each subpart in turn.

First, the court had to consider whether making AEJ available on the Internet constituted “publication.”  “Publication” is defined in the Copyright Act as the “distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.  The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. …”  17 U.S.C. § 101.  The court concluded that by posting AJE online where it could be downloaded and copied, Gallefoss was distributing or offering to distribute his work to the public, thereby satisfying the definition of “publication.”

Next, the court had to determine whether publication on the Internet made AEJ a “United States work” such that registration was required before suit could be brought.  Under § 411(a), no suit for copyright infringement of a “United States work” may be initiated until the work has been registered with the Copyright Office.  To determine whether AEJ was a “United States work” for purposes of § 411(a), the court looked at another definition in § 101, which provides that a work is a “United States work” only if  “(1) in the case of a published work, the work is first published … (C) simultaneously in the United States and a foreign nation that is not a treaty party.”  To determine whether the work was published in a foreign nation that is not a treaty party, the court looked at at the definition of “treaty party” in § 101, which is defined as “a country or intergovernmental organization other than the United States that is a party to an international agreement.”  Therefore, the court had to look at yet another definition in § 101, this one for “international agreement”, which, in relevant part, includes the Berne Convention.

[Sidebar—In 1989, the United States joined the Berne Convention, an international copyright treaty that among other things prohibits signatories from imposing copyright formalities as a condition to the protection of works of nationals of other member countries. To meet obligations of the Convention, the United States eliminated the registration requirement of § 411(a) for non-U.S. works.  Thus, if AJE is not a “United States work” under § 101 it is exempt from the registration requirement of § 411(a).]

The court ultimately concluded that publication of AEJ on the Internet constituted simultaneous publication all over the world, which meant that AJE qualifies as a “United States work” because it was published simultaneously in the United States and (necessarily) in foreign nations that are not parties to the Berne Convention (i.e., “treaty parties”).

One person has compared AEJ with Do It to demonstrate the similarity of the songs.  I’ll let you decide.


Or you can watch Nelly Furtado sing it herself.


The opinion is below
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For a more detailed discussion, see Mosley’s Motion for Summary Judgment and Kernal Records’ Response, both provided below.

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Righthaven Can’t Stand

“Once I never could hope to win
You starting down the road leaving me again
The threats you made were meant to cut me down
And if our love was just a circus you’d be a clown by now”
Elton John, I’m Still Standing, Too Low for Zero © 1983

The now infamous copyright troll Righthaven wishes it was still standing.  It appears, however, that Righthaven and Stevens Media, owner of the Las Vegas Review-Journal (“LVRJ”) forgot to read the Copyright Act before they put their plan of suing bloggers for infringement in motion.  Chief District Judge Roger Hunt of the District of Nevada, on the other hand, appears to be quite familiar with the Copyright Act’s standing requirements.

By way of background, Stevens Media entered into a Strategic Alliance Agreement (“SAA”) with Righthaven under which Stevens Media allegedly assigned its copyrights to articles appearing in the LVRJ t0 Righthaven, who would then bring suit against websites that copied portions of (or in some instances entire) LVRJ articles.  Under the terms of the SAA, Stevens Media’s “assignment” to Righthaven appeared to be only a (limited) right to bring copyright infringement suits.

For example, Sec. 7.2 of the SAA states: “Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.  To the extent that Righthaven’s maintenance of rights to pursue infringers of the Stephens Media Assigned Copyrights in any manner would be deemed to diminish Stephens Media’s right to Exploit the Stephens Media Assigned Copyrights, Righthaven hereby grants an exclusive license to Stephens Media to the greatest extent permitted by law so that Stephens Media shall have unfettered and exclusive ability to Exploit the Stephens Media Assigned Copyrights. . . .

The court concluded that this purported assignment was a sham because it failed to actually assign any of the exclusive copyrights Stevens Media may have held.  Under 17 U.S.C. § 501(b), only the legal or beneficial owner of one of the exclusive rights under § 106 of the Copyright Act is entitled, or has standing, to sue for infringement.  Because the right to sue is not one of the exclusive rights granted under § 106, the assignment of a bare right to sue is ineffectual and the purported assignment does not confer standing on the assignee.  As Judge Hunt concluded, “One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright.”

Judge Hunt’s characterization of Stevens Media and Righthaven’s legal arguments is, to say the least, harsh.  “Righthaven argues that the SAA’s provisions, which necessarily include Section 7.2, do not alter the unambiguous language of the Assignment or limit the rights it obtained from Stephens Media in the Assignment. This conclusion is flagrantly false—to the point that the claim is disingenuous, if not outright deceitful.” (emphasis added)

Following as this does on the heals of another significant legal loss, in which District Judge James Mahan (also of the District of Nevada) found that the wholesale copying of a 33-paragraph LVRJ article by an Oregonian non-profit was “fair use” under § 107, Stevens Media and Righthaven surely look like clowns.

The order is below
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