Cases of Note-Copyright-To Exploit or Not to Exploit; That is the Question
Cases of Note-Copyright-To Exploit or Not to Exploit; That is the Question
Bruce Strauch 0 1 2
Bryan M. Carson 0 1 2
Jack Montgomery 0 1 2
0 Western Kentucky University , USA
1 Bruce Strauch , The Citadel
2 Column Editor: Laura N. Gasaway, Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law , Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193 , USA
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LEGAL ISSUES
Section Editors:
Cases of Note — Copyright – To Exploit or Not to
Exploit; That is the Question
RIGHTHAVEN LLC V. WAYNE HOEHN,
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT, 2013 U.S. App.
LEXIS 9413.
Righthaven was an LLC formed for the
purpose of suing bloggers for posting news
articles without authorization. After a targeted
blogger posted an article, the newspaper —
Las Vegas Review-Journal — would assign
copyright to Righthaven subject to rights of
reversion. Their Strategic Alliance Agreement
(SAA) really only assigned the right to sue.
And here we see the death gasp of the print
news industry. The paper could have hired the
lawyers to sue. But they must have wanted to
conceal their role.
And now we get an attempt at homespun
humor. The circuit judge tells the tale of ol’
Rail-splitter Abe Lincoln telling the tale of a
lawyer trying to establish a calf had five legs
by calling the tail a leg. But old Abe sagely
observed that calling a tail a leg does not make
it so. And thus the 9th Circuit sagely notes
that calling someone a copyright owner does
not make it so.
Wayne Hoehn and Thomas DiBiase are
our defendants in question with their cases
consolidated on appeal. The district court
found in each case that Righthaven lacked
standing to sue as it was not the owner of any
of the exclusive rights under copyright law. In
the Hoehn case, the judge found that fair use
was available as a defense in the alternative.
And whups! We find that Dibiase is a
practicing lawyer and was once an assistant
U.S. attorney. Not a good candidate for a quick
settlement shake-down. He runs a blog about
murders where no body is found.
And it’s fairly interesting. Check it out.
Stephens Media — owner of the
Review-Journal — entered into the SAA with
Righthaven reserving a strict veto right on
who was sued. Righthaven could not exploit
the copyright in the usual ways or participate
in copyright royalties. And after all was
settled with a suit, Righthaven was to reassign
copyright to Stephens.
Only the “legal or beneficial owner of an
exclusive right under a copyright” has standing
to sue. See 17 U.S.C. § 501(b); Silvers v. Sony
In law school I always used to think it
was so cool to put “en banc” in a citation. It
seemed to resound with the majesty of the law.
Section 106 lists the exclusive rights:
reproduce; do derivative works; sell, rent, lease,
lend copies. And Silvers addresses the very
issue we have here. The bare right to sue for
infringement does not confer standing.
Yes, some really super legal research on the
parts of Righthaven and Stephens’ in-house
counsel. But, hey, it’s Vegas. You can easily
see the screenplay for the movie version of this.
Righthaven points to the SAA language
“all copyright requisite to
have Righthaven
recognized as the copyright
owner of the Work for purposes
of Righthaven being able
to claim ownership as well
as the right to seek redress for past,
present, and future infringements
of the copyright … in and to the
Work.”
Now, shall we lean down
from the bench, sigh, and remind
Righthaven’s counsel of country
lawyer Abe and the five-legged
calf? Yes, let’s.
You have to look beyond the labels to the
substance and effect of the contract. Stephens
Media retained “the unfettered and exclusive
ability” to exploit the copyright. Righthaven
had no right to exploit.
And Righthaven continued to tap dance.
Righthaven was given full ownership under
the assignment, see? But then the SAA granted
Stephens an exclusive license. So they had
copyright? Right?
No. Even if they did, in granting the
exclusive license to Stephens, Righthaven no
longer had the exclusive rights. And only the
exclusive licensee can sue for infringement. 3
M. Nimmer & D. Nimmer, Nimmer on
Copyright § 12.02[C] (2012).
This whole thing was
so in the news there for a
while. But stop and think.
Is there any real
exploitation of Vegas-Journal news
articles possible after the
day’s issue becomes fish wrap?
So all this time and money were
squandered flailing at those pesky
bloggers of the new media who
are making life so gosh-darned
unpleasant for the stuffy, geriatric
old media.
Questions & Answers — Copyright
Column
QUESTION: The U.S. Supreme Court
decided Kirtsaeng v. John Wiley & Sons on
May 19, 2013, in favor of Kirtsaeng who
was sued for infringing Wiley’s copyrights
when he imported and sold in this country
foreign editions of Wiley’s textbooks sent
t (...truncated)