Righthaven Hit With Class Action Counterclaim 91
Hugh Pickens writes "Steve Green reports that one of the website operators accused of copyright infringement by Righthaven has retaliated, hitting the Las Vegas company with a class-action counterclaim, charging that defendants in all 57 Righthaven cases in Colorado 'are victims of extortion litigation by Righthaven, which has made such extortion litigation a part of its, if not its entire, business model.' The counterclaim says Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that's not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, among other things. The claim seeks an adjudication that Righthaven's copyright infringement lawsuits amount to unfair and deceptive trade practices under Colorado law, an injunction permanently enjoining Righthaven from continuing the alleged unfair and deceptive trade practices, an unspecified financial award to the class-action plaintiffs for damages as well as their costs and attorney's fees."
Re:Live by the sword... (Score:5, Informative)
I am pretty sure that one of the judges recently made a point in court about the way that the company was set up and how the actual backers of this company were liable and directly in control of the actions - making it less of a shell company than it would seem.
Re:One more thing they should have asked for (Score:5, Informative)
So still hypothetically speaking, on behalf of the entire executive staff of Sony Music Entertainment, EMI Group, Warner Music Group and Universal Music Group: does the disembowelment happen before/during the hanging, or before the quartering?
First, you hang them---but not fatally---they dangle painfully for a while.
Second, before they have expired from the hanging, you draw them---as in draw out their bowels and burn them before them.
Third, you quarter them---and let the pieces rot on the city gates pour encourager les autres
Sheesh, kids these days... don't they know anything?
Re:As much as I'd like this to succeed... can it? (Score:5, Informative)
Claiming damages for copyright infringement in respect of material for which you do not own the copyright falls very definitely on the other side of the law. Righthaven have no more right to collect damages for this than you or I do.
Re:As much as I'd like this to succeed... can it? (Score:4, Informative)
That's what the concepts of bad faith and abuse of process are for. Exploiting the letter of the law to deceive and harm people via the court system isn't legal.
It could happen... (Score:5, Informative)
There's a reason it's basically a shell company, and doesn't own any of the rights...
Piercing the Corporate Veil
A court may pierce through the veil of liability protection if the corporation does not follow proper corporate formalities, if it is undercapitalized, or if it can be shown that it is a sham that was set up to defraud.
Re:Live by the sword... (Score:5, Informative)
I think you should probably have a read of these two stories to get a better idea of the judge that is starting to crack the shits with Righthaven:
Righthaven Defies Court in Domain Name Ruling [slashdot.org]
and
Judge Reveals Secret Righthaven Copyright Contract [slashdot.org].
Re:As much as I'd like this to succeed... can it? (Score:5, Informative)
material for which you do not own the copyright ... Righthaven have no more right to collect damages for this than you or I do
If you're authorized by the copyright holder, you're pretty much free to do anything they can do, if I'm not mistaken.
Wrong. When dealing with copyright, you cannot transfer only the ability to sue. You can only transfer that in conjunction with one of the other exclusivity rights in Section 106 of the 1976 Copyright Act. You need to have some other interest in the copyright other than the right to sue. Silvers v. Sony Pictures Entertainment, Inc. makes that clear for the 9th Circuit (there has been some confusion on this and disagreement in other federal courts).
To quote 402 F.3d 881 on 883:
May an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself, institute an action for infringement? After analyzing the 1976 Copyright Act and its history, as well as the scant, although persuasive, precedent that is available in analogous situations, we answer that question “no.” Accordingly, we reverse the ruling of the district court, which allowed this action by the assignee to proceed.
and 884:
Accordingly, our starting point is the statute.
Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright:
The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.
17 U.S.C. 501(b) (emphasis added). The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.” See 4 Business and Commercial Litigation in Federal Courts, at 1062, 65.3(a)(4) (Robert L. Haig ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”).
Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. 106. The right to sue for an accrued claim for infringement is not an exclusive right under 106. Section 201(d) refers to exclusive rights and provides:
(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright, including any subdivision*885 of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and re
Re:One more thing they should have asked for (Score:4, Informative)
Note that the BAD GUYS wanted to kill all the lawyers in the Shakespear play as they had the nasty habit of trying to uphold the law.
That's clearly not the context of the quote. Yes, the bad guys say it, but it's in the middle of passage describing how awesome things will be once they're in charge in a white-fluffy clouds, puppy dogs, and no lawyers kind of way. The tone of the scene is humorous, but a world without lawyers is lumped in with a bunch of a other hyperbolically good things (seven halfpenny loaves for a penny, three-hooped pots with ten hoops, outlawing small beers, making all food free of charge). There is no sense of cunning plot behind the comment, as if killing the lawyers were some insidious plan; the scene is comic.
In short, the 'kill all the lawyers' comment in context is a utopian joke. A 'wouldn't it be nice, if it weren't impractical?' It is not a comment in the lawyers favor (anymore than the impracticality of making food free is a comment in favor of high food prices).
Re:One more thing they should have asked for (Score:4, Informative)
Nevada bar oath of office:
Rule 73. Attorney's oath. Upon being admitted, each applicant shall take and subscribe to the following oath:
I DO SOLEMNLY SWEAR, OR AFFIRM, THAT:
I will support the Constitution and government of the United States and of the State of Nevada;
I will maintain the respect due to courts of justice and judicial officers;
I will support, abide by and follow the Rules of Professional Conduct as are now or may hereafter be adopted by the Supreme Court; and
I will faithfully and honestly discharge the duties of an attorney at law to the best of my knowledge and ability.
Counsel are first and foremost officers of the court, not of their clients. Fighting for their client does not allow them to take actions that they know, or should know, do not comply with the law, or waste the court's time.