Category Archives: Copyright

9th Circuit Agrees Righthaven Lacks Standing to sue on Copyrights

Today the 9th Circuit upheld a California District Court determination that Righthaven failed to have standing to sue on copyrights it acquired.  Congrats go out to my good friends Marc Randazza and Jay DeVoy for their awesome job on this case.

The 9th Circuit determined the agreements assigning Righthaven LLC the bare right to sue for infringement of newspaper articles, without the transfer of any associated exclusive rights in the articles, did not confer standing to Righthaven to sue.

 Underlying facts:

 Plaintiff Righthaven LLC was founded, according to its charter, to identify copyright infringements on behalf of third parties, receive “limited, revocable assignment[s]” of those copyrights, and then sue the infringers.

 Righthaven was not the original owner of the copyrights in these articles. Stephens Media LLC, the company that owns the Las Vegas Review-Journal, held them at the time defendants posted the articles. After the alleged infringements occurred, but before Righthaven filed these suits, Stephens Media and Righthaven executed a copyright assignment agreement for each article. Each copyright assignment provided that, “subject to [Stephens Media’s] rights of reversion,” Stephens Media granted to Righthaven “all copyrights 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.”

 Righthaven and Stephens Media had previously entered into a Strategic Alliance Agreement (“SAA”), however, that controlled what Righthaven could do with any copyrights assigned to it. After assignment of a copyright, Righthaven was to search for instances of infringement. When Righthaven found an infringement, it could pursue the infringer, but that right was subject to Stephens Media’s veto.

 If Righthaven did not obtain a settlement or initiate litigation, it had to reassign the copyright to Stephens Media. Righthaven was required to split any recovery it received with Stephens Media.

The SAA also placed sharp limits on what Righthaven could do with any assigned copyright. Righthaven had no right to exploit the copyrights or participate in any royalties.

 Stephens Media retained “an exclusive license” to exploit the copyrights “for any lawful purpose whatsoever,” and to the extent that Righthaven’s pursuit of infringement would “in any manner” diminish Stephens Media’s right to exploit the assigned copyrights, Righthaven granted a license to Stephens Media “to the greatest extent permitted by law so that Stephens Media shall have unfettered and exclusive ability” to exploit its copyrights. Moreover, by providing Righthaven thirty days prior notice, Stephens Media could revert the ownership of any assigned copyright back to itself.

 After Righthaven filed suit against [the defendants], each defendant filed a motion to dismiss for lack of standing. Righthaven and Stephens Media subsequently executed a “Clarification and Amendment to Strategic Alliance Agreement.” The agreement purported to clarify that the parties’ intent in entering the SAA was to “convey all ownership rights in and to any identified Work to Righthaven through a Copyright Assignment so that Righthaven would be the rightful owner of the identified Work.”

Read the opinion here.

See related.


Used, abused and resold: “first sale” applies to works made abroad

~ By Sara Boyd (Student Blawg)

Overshadowed by arguments about same-sex marriage rights and affirmative action, the court handed down an opinion that has a global impact on copyright and consumerism. Although it is unlikely that any American will realize the ripple of change considering many didn’t know there was ever an argument about it.

 That issue was whether the “first sale” doctrine applied to foreign produced copies of American copyrighted materials. The scenario of Kirtsaeng v. Wiley goes like this: Mr. Kirtsaeng came to the United States from Thailand to study. In order to supplement his income while in school, he formulated a plan to have his family purchase international editions of textbooks in Thailand, ship them to him in the U.S. and resell them, at a profit, on Ebay. There is no argument about the legitimacy of the textbooks as they were not pirated. The problem which arose was whether the “first sale” doctrine should apply and thus the importation would have been legal. In the internet-centric, global world we live in, it is hard to believe that a product lawfully manufactured overseas would be subject to different laws than one produced here.

 Let’s begin by looking at the first sale doctrine. Briefly, Section 109(a) is the principle that once the owner of genuine copyrighted material distributes it, the buyer can treat the object as his/her own and freely sell, lease, or lend the work to another. There are, however, two more clauses of the Copyright Act that were pertinent to this case. First, Section 602 subsection (a) is the importation clause. In essence it says that you cannot import copyrighted material without the permission of the copyright holder. If you do not obtain that permission, it is infringement of their (the copyright holder’s) right to distribute their materials under section 106; which leads us to section 106 subsection (3). Pretty much this section just says the copyright holder has the exclusive right to distribute their work as they see fit. However, it is subject to sections 107 through 122. And low and behold would you believe it, the first sale doctrine is section 109. How circuitous! This seems like an exclusion to the importation clause. The main crux of this case was section 109(a)’s five little words: “lawfully made under this title” and how circuitous the Copyright Act really is. Does “lawfully made under this title” mean subject to the Copyright Act or made where the Copyright Act is applicable? The court chose the non-geographical interpretation and subsequent interdependency of the Copyright Act sections.

 Breyer favored an Occam’s razor approach to interpreting the key “five little words” in section 109(a) and thank goodness! Had the vote had swayed the other way you would have been an unwitting mule to copyright infringement having purchased that romantic teen vampire novel (given it was manufactured overseas) before boarding the plane heading home and subsequently “importing” it to the States. Had the vote swayed the other way, once you remembered that you are not a fifteen year old girl and thus the book was a bit age “inappropriate” you could never lawfully rid yourself of it without obtaining the oh-so humble authorization of the copyright holder. And really, who has time for that? Fifteen year old girls that’s who. Instead we shall continue our blissful ignorance that a doctrine we have all taken for granted applies to any good with an American copyright attached to it in the entire world. Doesn’t it just make you want to go out and buy foreign manufactured stuff just to exercise your rights as an American consumer?

 In the strangest and slightly disconcerting collection of dissenting Justices (Ginsburg, Kennedy and Scalia) ever, Ginsburg describes her belief that America is hesitant to move towards “international exhaustion.” The flaw in her argument is that so many people have operated as if this decision had always been the law. Breyer touches on this when he quotes the used book dealers saying “they have, ‘operat[ed]…for centuries’ under the assumption that the ‘first sale’ doctrine applies.” It isn’t just the used book dealers, it’s practically every American. Never have I once stopped to consider where my copy of “Twilight” was manufactured before I used it as camp fire kindling. The “world is flat” as Thomas Friedman reminded us in 2005 and now is no time to revert to the ostrich with its head in the sand, isolationist ideology.

Read the opinion here.


Go get your own (damn) camera!

I’m not sure why large media groups feel they can waltz up to a twitter feed and grab photographs that someone else has posted, and claim they have the right to unfettered use of that photo without the photographer’s permission. If the roles were reversed, and someone were to use a photograph posted on a news paper’s news feed or twitter feed, they would be banging down the doors for copyright infringement claim (absent any copyright defenses, mind you).

In this instance, when the 2010 devastating earthquake hit Haiti, the AFP news agency looked to Twitter and discovered a user’s “exclusive photos” of the disaster. AFP took those photos and shared them with photo service Getty. From there, the Washington Post then took the photos from Getty and published them on its website. Isn’t there a rule about double checking, or having two sources for the information you publish?

Well, it turned out, the “exclusive owner” of these “exclusive photos” didn’t have any right to them. Hence, Getty and the Post published the pics without permission and with an inappropriate attribution to the photographer.

Oops! Internship over.

Needless to say, the actual photographer sued for infringement. To which AFP, he Post and Getty argued, the posting of the image on Twitter gave a general license to anyone to use the image for their own needs. This is actually a very clever argument. On appeal, it could possibly hold up. Unlikely a though. The southern District of New York Federal District Court disagreed with the argument and found in favor of the photographer.

Read the opinion here