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Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

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SoylentGreen:

Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

Article from TechDirt

http://www.techdirt.com/articles/20110614/17302814695/judge-rules-that-righthaven-lawsuit-was-sham-threatens-sanctions.shtml

"Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."

Hope that Getty is taking note.

S.G.

Helpi:
"Hope that Getty is taking note."

The Getty standing issue was discussed on this board way back and appears to be quite different then what Righthaven was doing.

The problem with attacking Getty on standing is that Getty appears (from the standard contributor agreement I read and posted to way back) to be an exclusive licensee.  Hence, they have standing. Righthaven (from the article; I have not read the decision) purported to take an assignment of the right to sue not of any of the exclusive section 106 rights. The right to sue is not a distinct (section 106) right under the Copyright Act. The right to sue attaches to copyright owners (which includes exclusive licensees).

Put another way. Getty obtains exclusive licenses to exploit content (e.g., exclusive right to license my photo of X for web use for three years) and as a result has standing to sue to the extent someone interferes with their exclusive right to use the image for web use during the term of the exclusive license.

Righthaven appears to be in the business of bringing lawsuits on behalf of content owners presumably footing the cost and then taking a piece of the prize. If they want to do that they need to be in a different business. It's called a law firm and you need to be a licensed lawyer to do it and, in any event, the plaintiff would not be the law firm but the copyright owner.

"Gibson said the ruling left him pondering an interesting question: If Righthaven does not have "standing," or the right to file a lawsuit, then who does?"

The copyright owner, which I presume is Stephens Media. Not that interesting.

SoylentGreen:
Thanks for your contribution to this discussion.

As the West's industrial gears are slowly grinding to a halt and many of us are trying to find our way in a new economy, we're seeing more and more of these kind of money-making schemes.
I do think that this court finding is an important decision that reinforces what amounts to common sense: you cannot sue for IP damages if you do not own copyright to the content in question.  We're in agreement here.

I personally feel that Getty (and some others) do not own the copyrights to much of the content that they sell.  In such cases they're simply an "agent"  not an "excusive licensee".
That is why Getty recently urged their contributors to copyright their works (ie. Getty's not doing it, they expect the artist to do it).
Victims here are saying that Getty won't provide them with the copyright registration information to prove that they (Getty) own sole rights to such content and can successfully litigate over such issues.
It smells fishy to me.  So, Getty may well be in the same boat as Righthaven in many instances; it has no legal standing to sue over images that it simply doesn't own the copyright to.
If Getty actually owns copyright to their content, they certainly should be able to prove it to their extortion letter victims.

Again, this decision is a game-changer for a company (Righthaven) that was conceived as a copyright troll from day one.
Their business model is as dead as the dodo.

S.G.

Helpi:
"I personally feel that Getty (and some others) do not own the copyrights to much of the content that they sell. "

It's not a matter of what either of us feel. There must be a written agreement. That is a requirement of the Copyright Act to either assign section 106 rights or to enter into an exclusive license related to such rights. And if there is litigation you can discover the agreements as I must assume happened in the Righthaven case. The Judge read it and said this isn't an exclusive license this a (purported) assignment of the right to sue. Which doesn't work because 501(b) tells us who can sue: (1) legal owners and (2) beneficial owners (related to transfers in exchange for royalty payments.)

The standard Getty agreement that I saw grants Getty an exclusive license.

"That is why Getty recently urged their contributors to copyright their works (ie. Getty's not doing it, they expect the artist to do it)."

There could be a number of reasons, that is not one of them. Getty isn't without legal resources. They can read The Act the same way Oscar can. They are not setting up an "agency" to sue if I understand what you are trying to say because such a thing doesn't work. They are either an exclusive licensee or a non-exclusive licensee of the content. If the former, they have standing.

Helpi:
FYI, I found this googling:

http://tinyurl.com/5v5l35o

Obviously one would need to see the actual agreement used in any particular case. But if it's consistent with this Getty is not sitting in the same position as what I understand Righthaven to be doing from that article.

Here is some of the relevant language:

1.1 License Grant to Getty Images: You grant Getty Images a worldwide, exclusive right to market and sublicense the right to copy, reproduce,
display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to
Getty Images.

DING DING DING.  Exclusive License. Pretty broad one in fact.

Here we find a provision addressing issues related to Getty's right to sue:

1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to
proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the
exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual
property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your
cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or
that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any
settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it

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