Economics

Copy Fight

A new front opens in the battle over online copyright infringement

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Since 2003, Clayton Cramer, an author and historian who has written numerous books on the right to keep and bear arms and the evolution of America's gun culture, has edited a website that is currently called The Armed Citizen. With the help of another contributor, David Burnett, Cramer uses the site as a repository for newspaper articles that document instances where firearms owners use their weapons in self-defense. Over the years, the pair had posted excerpts and complete text of approximately 4,700 articles, and in doing so, they created a unique and useful archive for researchers, activists, and people who simply enjoy feel-good tales of homeowners protecting themselves and their property from intruders and assailants by any means necessary.

In all that time, they say, they'd never received a single request from a copyright owner to remove an article. Last week, however, Cramer and Burnett were caught off-guard by a figure who aims to establish himself as the new sheriff in the lawless wilds of cyberspace. He was packing a .36 caliber copyright infringement lawsuit and he didn't bother with a warning shot. Instead, Cramer and Burnett only learned they were being sued after a reporter from the Las Vegas Sun contacted them about the case.

The man who brought the suit against The Armed Citizen is named Steve Gibson. He's the founder of a company called Righthaven. Righthaven's business model involves acquiring the copyrights for specific articles originally published by the Las Vegas Review-Journal, then filing lawsuits against website owners who have posted those articles without permission. In March, it filed its first lawsuit against a New Jersey company called MoneyReign.

Since then, it has filed at least 88 additional suits against bloggers, message-board operators, advocacy organizations, and various other websites. So far, all of the lawsuits have involved articles published by the Review-Journal, but in a phone interview, Gibson told me that Righthaven does have other clients. "It will become plainly evident who they are within the next 30 days," he exclaimed. Some of them, he added, produce content other than newspaper articles.

Cramer and Burnett are frustrated that Righthaven didn't give them an opportunity to remove the articles in question. "With our e-mail addresses right there on the front page [of our site], all it would have taken is an e-mail asking us to remove or alter the listing so as not to infringe," Burnett said in an email response to my questions. "By not contacting any of the websites with a takedown notice beforehand, they're showing they're interested in money, not resolution."

In a recent Wired.com article, Gibson was certainly candid about the money-making potential of his approach. "Media companies' assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues," he said.

But in my phone conversation with him, he also characterized his approach as the best way to discourage infringing activity. "There are these folks out there who say, 'Oh, they should send out a takedown letter.' But people have been sending takedown letters for over a decade now and it's had little or no effect on infringements. Infringements continue to grow."

His solution is to employ the deterrent of statutory damages. "Statutory damages are damages where you don't have to establish what your economic losses are," he told Las Vegas Sun journalist Jon Ralston in a video interview. "The Supreme Court has made it very clear that the statutory provision was put in the Copyright Act in order to create a deterrent, a punitive or penalty measure, because it's so easy to have copyright infringement."

To file an infringement suit in court, a copyright holder must first register the work in question with the U.S. Copyright Office. In addition, to qualify for statutory damages, the copyright holder must register the work within three months of publication of a work or prior to its infringement. In the case of The Armed Citizen, for example, the Las Vegas Review-Journal published an article entitled "Slain Store Clerk, 77, Mourned" in its print edition on May 17, 2010. Three days later, Burnett posted the article in its entirety on The Armed Citizen, minus the authors' names but including a link back to the Review-Journal. At some point, Righthaven discovered The Armed Citizen's post. It registered the article with the Copyright Office on July 6, 2010, thus meeting the requirement that will allow it to seek statutory damages if it can prove that Cramer and Burnett knew they were committing infringement.

While it costs at least $35 to register a work with the Copyright Office and another $350 or so to file a lawsuit, the potential pay-off can be huge. A single instance of willful infringement can yield statutory damages of $150,000.
So far, none of the lawsuits Righthaven has filed have gone to trial. According to Gibson, Righthaven has reached resolutions with around 30 defendants to date. Citing confidentiality requirements, Gibson refused to divulge any details regarding these settlements.

In the dozen or so complaints I read, all involved sites that had posted articles in their entirety. In some cases, Righthaven documented multiple allegedly infringing articles that defendants had posted. In others, it documented just one. For example, a pastor in Las Vegas posted a single op-ed from the Review-Journal on his blog. A woman in Boston, who maintained a blog purportedly written by her pet cat Artie, posted a single article about a fire at a nature sanctuary.

At Chillingeffects.org, a website that aims to protect Internet users from unwarranted legal threats, a FAQ advises that "the fair use doctrine, as currently interpreted by the courts, probably would not entitle you" to "copy an entire news article from a commercial news website and post the article on [your] site." In an Online Media Daily article that reported on several of Righthaven's earliest lawsuits, Sam Bayard, assistant director of the Citizen Media Law project, stated, "It's unlikely that there's any kind of fair use defense for simply posting an entire article, regardless of the motivation or beliefs about the law."

Facing the specter of imposing fines, and lacking strong arguments for fair use, an out of court settlement is the least nightmarish scenario for many of the individuals and mom-and-pop organizations Righthaven has sued to date. With six full-time employees and an annual budget of around $1 million, NORML, the pro-marijuana advocacy organization, is likely one of the larger entities that Righthaven has sued. In addition, in NORMAL's case, Righthaven was not eligible for statutory damages because it hadn't registered the article it accused NORML of infringing within three months of its publication at the Review-Journal.

Even so, NORML eventually decided it made more sense to propose a settlement than to sink time and money into what could end up being a lengthy and expensive defense. "The cost of paying attorneys is what firms like Righthaven rely on," Clayton Cramer charges. "The threat of having to spend thousands to tens of thousands of dollars on a defense pretty well guarantees that they can demand a settlement that is of similar scale—and get it."
Granted, Cramer wouldn't be facing the challenge of mounting a convincing fair use case for The Armed Citizen had he simply relied on excerpts and links to build the repository of information that existed there until last week. (In light of the lawsuit, he has temporarily shut down the site.) But there were legitimate reasons he chose to reproduce, as he describes it, "significant text" from articles. First and foremost was to ensure completeness. Newspaper articles eventually migrate to paid archives. Or get moved around during site reorganizations. Or are simply purged over time.

Having the articles all in one place also made it easier for researchers to use the archive while analyzing and categorizing thousands of incidents. And, finally, one suspects, posting complete or near-complete articles was simply easier than summarizing them all. The Armed Citizen was a part-time gig—had it required a lot of time or cost a lot of money to develop, it may not have developed at all. Were that the case, the world would have one less useful research resource, and the Las Vegas Review-Journal would still be yearning for the good old days when information was scarce and expensive.

Which is not say there's no place for copyright enforcement on the web. As a freelance writer, I have a predictable attachment to the old-fashioned idea that content creators should be able to largely call the shots on how their work is disseminated. And a strong desire to see those who unfairly appropriate the work of others get their just deserts. But if the sites Righthaven has sued to date represent the worst threats to the Review-Journal's ongoing viability, then the destructive force of copyright infringement has been overstated. And if there are more substantive threats out there, why not sue them? Surely they can't be any harder to find than a cat blogger from Boston who posted a single infringing article on her site.

Contributing Editor Greg Beato is a writer living in San Francisco. Read his Reason archive here.

UPDATE: David Burnett writes to clarify that it has not yet been established if Armed Citizen's usage of the article in question was an infringement or a fair use, and that his statement should not be taken as an unintentional admission of guilt.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

181 responses to “Copy Fight

  1. That image of me is mine. You will be hearing from me you filthy image thief.

  2. “… content creators should be able to largely call the shots on how their work is disseminated. And a strong desire to see those who unfairly appropriate the work of others get their just deserts.”

    I thought this was a libertarian web site.

    1. TO be fair, IP, like abortion, is one of those topics libertarians do not seem to agree upon. I was once an IP supporter.

      1. I’m in favor of reasonable IP.

        1. I’m in favor of property.

          1. I’m in favor of intellect.

            1. Re: Pro Libertate,

              I’m in favor of intellect.

              Intellect and non-IP are not mutually exclusive. It is clear from the above article that IP hobbles the pursuit of intellectal stimulation by blocking the disemination of information.

              1. I’m familiar with such arguments, but I think at least a weak IP regime is necessary to allow artists to reap the rewards of their work. If we just treat it all as fair game, the only thing an artist will be able to get paid for is the right to let one publisher be first.

                1. Re: Pro Libertate,

                  I’m familiar with such arguments, but I think at least a weak IP regime is necessary to allow artists to reap the rewards of their work.

                  With all due respect, PL, you’re begging the question. What makes you think that under non-IP artists cannot reap the fruits of their labor? You just assume that it is.

                  If we just treat it all as fair game, the only thing an artist will be able to get paid for is the right to let one publisher be first.

                  You’re just guessing it would be so, because you are still in an IP frame of reference. What would an entrepreneurial artist do in a free market with no IP is anybody’s guess, but such lack of prescience does not justify IP itself.

                  1. It’s not like IP protection has always existed. Prior to IP laws, artists had to find patrons of some sort or be independently wealthy. Mass market wasn’t really an option.

                    I recall a story about Charles Dickens, who kept getting denied the benefits of the large U.S. market due to the fact that the U.S. was a renown copyright pirate state during the 1800s. The only way he could make any money at all here was by granting first publication rights to a publisher.

                    In any event, this is all moot, as the Constitution establishes a IP-protection regime (though it doesn’t set out any details or mandate the protection).

                  2. What would an entrepreneurial artist do in a free market with no IP is anybody’s guess, but such lack of prescience does not justify IP itself.

                    We’ll figure out how it works, and whether there are any negative consequences, once we pass it. That sounds familiar.

                2. I don’t have a problem with IP. I have a problem with filing suits without even trying to resolve the problem first. I also have a problem with a system set up to make it so expensive to defend yourself in court that you have no realistic alternative except settlement. Even winning this case would still be losing, because the plaintiff doesn’t get dinged when he loses on a frivolous suit. (Theoretically, yes, a judge could sanction a plaintiff for a frivolous suit, but it doesn’t happen all that often.)

                  1. Agree completely. And judges failing to sanction attorneys regularly for frivolous, baseless litigation is a big problem with our entire system.

                  2. Because a losing Plaintiff does not have to pay a lawyer? Because the Plaintiff’s lawyer does not eat a huge loss of time and resources if he takes the case on contingency?

                    If you want to claim the law is stacked against IP infringement or that the Plaintiff should have the burden of proving a use is not fair, fine. But to cry it costs too much is fucking silly considering the Plaintiff is equally at risk eating a huge legal bill.

                    1. Frivolous being the key word, you betcha.

                    2. Imagine that your actions mean you owe someone $500. Someone demands $75,000, and uses the government to enforce that demand–but then offers to settle for $5000. Anyone that doesn’t see a problem with that needs to think about what happens if you owe some $10, and they demand a million–but they will settle for $100,000. See any problems yet?

                    3. The difference is that the plaintiff chooses whether to file suit or not. And because the plaintiff in this case doesn’t event TRY to avoid filing a lawsuit (it’s his business plan, by his own admission, to use the threat of a huge judgment to get quick small settlements), much of the expense is what he chose to do in his pursuit of quick riches without having to work.

                      Of course, in this case, the plaintiff is the lawyer.

              2. Exactly. Williams & Wilkins Company v. United States, 487 F. 2d 1345, 1354 (Court of Claims 1973):

                “In addition, the development of “fair use” has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection “To promote the Progress of Science and the useful Arts.” U.S.Const., art. 1, ? 8. The House committee which recommended the 1909 Act said that copyright was “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public.” H.R.Rep. No. 2222, 60th Cong., 2d Sess., p. 7. The Supreme Court has stated that “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.” Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954); United States v. Paramount Pictures, 334 U.S. 131, 158, 68 S.Ct. 915, 92 L.Ed. 1260 (1948).”

                1. One of the kinda sorta unanswered questions is how to deal with the tensions created between the First Amendment and the Copyright Clause. In theory, fair use doctrine should act as a safety valve, but the reality is that all sorts of protected speech is chilled by the fact that IP protection is now set at 11.

                  As a matter of constitutional interpretation, freedom of speech should trump the Copyright Clause (when they directly conflict) due to the First Amendment being a prohibition and the Copyright Clause being permissive.

                  1. Look at it too long and you might notice the copyright clause is a complete contradiction to free speech. To encourage, by proper premiums & Provisions, the advancement of useful knowledge and discoveries – would have been much better for this day and age. Automatically securing exclusive monopolies on ideas for a dynamic arbitrary amount of time is what we somehow ended up with.

                    1. There’s an argument that copyright and patent protection encourage the creation of speech that wouldn’t have occurred without the protection. However, the tension between the two clauses is much more serious than today’s courts seem to want to accept.

                    2. Look at it too long and you might notice the copyright clause is a complete contradiction to free speech.

                      This is a preposterous statement. Copyright does not prevent any ideas from being expressed, it merely restricts the use of a particular presentation technique for those ideas.

                      And the most contentious areas of IP, namely music and movie copying, have absolutely nothing to do with free speech.

                    3. It’s absurd if applied to everything that can be copyrightable, but it’s not absurd in every case. The idea/expression dichotomy usually helps to avoid the conflict, however.

                    4. So we’re free to speak so long as we are restricted? Is this sarcasm or is the idea so preposterous that you can’t see the contradiction?

                    5. If you’re talking to me, I think that giving people rights in a particular expression of an idea doesn’t prevent others from expressing the exact same idea in a different manner.

                    6. I think we could have a better economic model of compensation for resources not limited by scarcity without restricting verbatim speech.

                    7. I think the incentive-based system is a good one that doesn’t do that much to reduce speech rights. IP laws are grossly overreaching today, but that doesn’t make the whole concept bad. Just the current iteration.

        2. I agree. Their should be some protection for the development of ideas, but the current copyright laws are ludicrous, and they are completely gamed by Disney and other large media corporations.

          1. I think reducing the term to a reasonable length like 20 years would solve most of the problems with current copyright law. Another possibility is to charge an increasing schedule of fees at every 5-year interval after the copyright is registered, so that it would be unprofitable to maintain copyrights on works that are not generating revenue, and those works would enter the public domain.

            1. “No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power?whether it is called humanity, society, nation, state, or government?could act in a way of which he himself disapproves.” ?Ludwig von Mises, Human Action http://www.mises.org/humanaction/chap25sec1.asp

        3. What do you consider reasonable?

          If I take a picture of a freshly mown lawn (and sell it) should I pay a royalty to the guy who mowed the lawn?

          1. Does he own the picture? I think you do.

            1. There are some cases out there about taking pictures of buildings and other works that are protected. I think that’s what he’s getting at.

              I’d say shortening the duration to something sane would be a good start, as would removing most if not all of the criminal statutes and eliminating or sharply curtailing the application of statutory damages.

              I also think that obvious fair uses (e.g., parody) should be strictly protected, without forcing defendants into pointless litigation.

              1. A lot of people aren’t clear on what constitutes a parody, though. As I understand it that category only includes using the work to parody the work itself, or something closely related to the work such as the author or publisher, perhaps.

                It doesn’t include using a copyrighted song to make fun of something completely unrelated, which lots of people mistakenly think is covered by fair use.

                1. That’s the law–parody protected, satire isn’t (in effect)–but I think the distinction is a mistake. Either should be a fair use, provided that the parody/satire isn’t just a veneer for infringement.

          2. You also have to pay a royalty to the heirs of the guy who first thought of “mowing”.

            1. That’s patent, you fool!

    2. I’d say the issue is with the his business model and not the protection of the work of other people. If he were interested in protecting works he would do what everyone else does and ask for the removal of the content first.

      I agree that going straight to the courts seeking money indicates he isn’t interested in copyright laws beyond a means to generate income. He’s basically seeking government help in generating income. Rent seeking douche bag.

      1. See the Wired article about Gibson. It confirms that he sees law not as a profession, but a business.

        1. What else would you see it as? I would presume the vast majority of people enter their professions to make money.

          Lawyers, doctors (or any other professional) are not special due to the type of work they do. They may be special by nature of the way they perform their jobs, but that would apply to anybody.

          1. At the start of the 20th century, there were two licensed professions: lawyers and doctors. Both enjoyed certain special advantages based on an assumption that they were doing something more important than simply pursuing their own interests.

      2. If he were interested in protecting works he would do what everyone else does and ask for the removal of the content first.

        You have to admit he has a point about take-down notices being ineffective. If your car was stolen and a couple of days later you saw the thief driving around in it, would you consider it sufficient retribution if the thief gave you your car back after you asked nicely?

        1. Your analogy would work better if there was a “Fair Use” law that said that someone who needed a car could take yours for ten minutes to run down to the store, or for a day if he had to deliver important legal papers somewhere else, or for a week under some other set of ill-defined circumstances. That’s pretty much the state of “Fair Use” with respect to copyright: vague, and uncertain.

          I’m not even getting into the problem that once someone takes your car, you no longer have it. Unlike what happens if someone copies an article.

          1. You have to realize, Tulpa doesn’t understand all that new-fangled digital stuff. Explain it in terms of carbon-copies.

          2. This case is pretty far beyond the gray area of fair use. Wholesale cutting and pasting of an entire work for no other purpose than to allow your readers to not have to visit the copyright holder’s site.

            As for the car analogy, it can be tweaked to make it fit the nitpicky details you bring up. Perhaps you’re on vacation in another city and happen to see someone driving your car, etc. That way you have not been deprived of use of the car since you weren’t using it anyway.

            1. Uh, no. “[T]o allow your readers to not have to visit the copyright holder’s site” was NEVER the purpose. The purpose was to make sure that a scholarly resource remained available in case news stories moved, or were taken down. If we didn’t want anyone visiting their website, why would we have linked to it?

              1. You could have done that by saving the text to your private hard drive just in case it was later deleted by the original source. At some future date, if the original source became unavailable, you could make the full text available (assuming it hadn’t just been moved behind a paywall).

                1. Perhaps you’re on vacation in another city and happen to see someone driving your car, etc. That way you have not been deprived of use of the car since you weren’t using it anyway.

                  Liability issues, wear and tear on the vehicle, etc.

                  At some future date, if the original source became unavailable, you could make the full text available (assuming it hadn’t just been moved behind a paywall).

                  Nope, they can still sue. The bottom line is that the attempt to force business models based upon physical objects to apply to the digital world results in both diminished freedom and diminished availability of information. The fact that you see the difference between a stolen car and copied bits as a “nitpicky detail” seems to indicate that your problem is largely conceptual. As you’ve almost undoubtedly had a similar conversation on this board before, it appears that you are simply unwilling to learn. If I’m wrong, and this is not the case, I apologize and leave you with this: If I build a copy of your vehicle, have you been deprived of anything? (hint: if your reply involves a business model, you’re still missing the point)

                2. No, that’s still a violation of copyright law, in your “copyright law is my idol” approach.

            2. “This case is pretty far beyond the gray area of fair use. Wholesale cutting and pasting of an entire work for no other purpose than to allow your readers to not have to visit the copyright holder’s site.”

              No, it was for the primary purpose of making sure that the material would still be available if the original source moved or disappeared. And you have later in this thread admitted that you know that this was one of our objectives.

              If the goal was to get readers not to visit the original site, why would we have linked to it?

    3. What is unlibertarian about the quote?

  3. I would love to subscribe to a newspaper that publishes everything under a Creative-Commons Attribution Share-Alike license. Those of us who oppose this kind of litigious behavior need to encourage those who post things under the CCASA license.

    1. You think so? Let’s take a look at how plausible that is. Take a serious daily, like The Los Angeles Times, with actual reporters and editors and stuff, not just a subscriber to the wire services or an aggregator of stories produced by others.

      It’s hard to come by annual revenue figures, but profits in a good year at the Times run $100-200 million, and the annual revenue of its parent are about $1 billion, so we might be reasonably conservative and say gross operating costs are in the neighborhood of $200 to $300 million. The LAT has a daily circulation of 600,000 and Sunday circulation of 1,000,000, for an average of 740,000.

      Which works out to $270 to $400 per paper per customer per year. Of course, subscribers actually pay much less than that, and ad revenue makes up the rest (or doesn’t, as is the present case, which is why the paper is struggling).

      You can reasonably assume that publishing only on the Web will reduce some operating costs (paper, trucks) but on the other hand if your customers expect you to be Internet-fast (hours), instead of getting the story in dead-tree time (a few days), that bespeaks increased IT and editorial costs. Someone’s got to be on call at 3 AM to catch the story of the bomb blast in Moscow that absolutely must be on the Web at 6 AM when all the subscribers log in from their favorite Starbucks WiFi spot. Someone else has to be on call in case of DoS attacks and breakdowns in the subscriber ID system. Someone who’ll want a handsome salary.

      Then there is the issue that, as of now, the LAT can charge fees for access to its archives, or for extensive or convenient access to its stories. That’s a revenue stream your CC licensed source won’t have.

      It’s hard to know how it would settle out, but I’d be surprised if you could make a go of it with less than $400 per year per subscriber — because if you could, somebody already would’ve.

      So would you subscribe to your theoretical open-source daily at a price of $400 per year?

      1. Fair points, but creative commons licensing does not have to have a negative impact on revenue. It allows for various levels of restriction and can be tailored to the needs of the creator. It is just another tool for clarifying the issues.

      2. The LA Times, like the New York Times is using a business model for the 19th Century, not even the 2oth. Other media outlets are emerging. They tend to be more nich, more specialized. They are the future. Not the deat tree papers.

      3. Your analysis lost me right at one of the basic assumptions. A newspaper has to come up with a whole newspaper full of stories every day. They have a sort of built-in copyright protection since, by the time someone could rip off the day’s stories, its already old news.

        I don’t think they make much on reprints of articles. So, how is copyright protection going to help a newspaper make much money?

        1. They don’t make much on reprints. In the case against NORML, the article in question was $2.95. The article on which they registered copyright against was still available for free when they filed the suit–so the Review-Journal weren’t out ANY money from lost sales. (Maybe, just maybe, a few dollars from lost advertising revenue.) It’s strictly about the statutory damages and the chance to collect attorneys fees. I suppose that it is safer than breaking into buildings.

          1. Yep, it’s clearly rent seeking by a state granted monopoly. The intent is to stifle speech and commerce.

            It’s very discouraging that any so called libertatian is on the wrong side of this.

            Can’t wait to see their justification for a new Salt monopoly.

      4. Oh, I see. You’re assuming PIRS is talking about subscribing to an online version of the paper. He probably is. I was thinking of an old-fashioned print subscription, but to a newspaper that doesn’t bother with strong copyright protection.

        I still challenge your assumption that a paper like the Los Angeles Times makes any significant amount of money off of its archives. Like the Stones sang, “Who wants yesterday’s papers?”

  4. That picture screams, “I’m a flaming douche bag.”

    Here’s to him getting raped by a pack of wild camels.

    1. That’s the spirit.

      1. Some people just need a good camel raping.

        1. Is camel rape halal?

          1. Only if no webcam is present to record the coupling.

            1. And you have to be facing the qibla when the camel penetrates you.

    2. Here you go.

    3. Wild camels do the work that domesticated camels just won’t do. Get your hijab on. (not safe for work)

    4. He looks like an aged Robert Carradine

    5. You’re encouraging children to have sex with camels!

      TEH CHILRENS!!!1!

    6. You mean a pack of n*****s. Either way it would be his fault.

  5. In the dozen or so complaints I read, all involved sites that had posted articles in their entirety. In some cases, Righthaven documented multiple allegedly infringing articles that defendants had posted.

    If that is the case, I really do not have a problem with what he’s doing.

  6. Is this the same Steve Gibson that raped and murdered a girl in 1994? The only Steve Gibson I know of is the one that raped and murdered a girl in 1994. Is this the same Steve Gibson, the murdering rapist?

  7. I think that the problem here is the statutory damages provision.

    Basically by empowering people to claim damages without actual losses, you’re just about forcing the growth of an industry to file frivolous claims.

    An article posted by someone non-commercially on a cat blog nobody even sees probably did not cause any economic damage whatsoever to the plaintiff. Allowing them to collect damages anyway is an offense against justice.

    1. I think that the problem here is the statutory damages provision.

      Bingo. Statutory damages are, in my opinion, a violation of due process, because they negate a key element of due process – the requirement that the plaintiff prove damages in order to recover damages.

      My company got ass-raped for over $50,000 (and that much again in legal fees) in a class-action suit because one of our credit card machines wasn’t truncating the card numbers on recepits. Our statutory damages exposure for the handful of bad receipts was over $1,000,000.

      Actual harm: $0.00

      Money pocketed by donkey-fellating plaintiff attorney: $45,000.00

      Insult to injury: $5,000.00 “donation” to some charity because the donkey-fellating attorney’s kid has some kind of birth defect.

      1. Insult to injury: $5,000.00 “donation” to some charity because the donkey-fellating attorney’s kid has some kind of birth defect.

        wtf? Is that “creative sentencing” in action?

      2. On the other hand, I bet you never ever ever ever will let that happen again, even if it means obsessive insanely nitpicky testing of your machines.

        Which is the point. I’m not defending the practice, mind you. Just pointing out that what happened to you is exactly what the legislature intended to happen. And, at that, they set this vicious regime up because of the widely increasing fear among consumers — that is, your customers — of identity theft.

        I don’t have any good ideas, but it’s not quite right to totally blame the lawyer, any more than it’s right to blame the Second Amendment and the availability of a gun when someone gets murdered. Sure, the lawyer was bottom-feeding scum, a Saturday night special, but he was loaded and fired by the sturdy upstanding citizens of your polity who demanded that the legislature do something about the threat of having their CC numbers stolen.

        1. In this case, a far better solution is for the credit card industry PCI standards to prevail and for the merchant’s bank to enforce the rule of obfuscating full CC numbers. (You can’t have expiration dates on the receipt either.)

          Or, you know, wait for someone to actually be damaged for a lawsuit to be brought. Statutory damages are the thug’s solution.

        2. On the other hand, I bet you never ever ever ever will let that happen again, even if it means obsessive insanely nitpicky testing of your machines.

          Yes additional cost and resource wasting thans to the regulatory state.

          That’ll ge the economy moving again!

      3. Lots of attorneys were trolling on that FACTA/FRCA provision. Didn’t that get repealed or amended recently? I know there was a bill on the floor.

    2. I think the primary issue is defining fair use. By my reading, the Cat Blog is probably fair use…but, say, H&R posting an article in full may go beyond fair use as Reason is a commercial enterprise.

      Creative Commons is one way to help solve this as it gives a standard format that the creator can use to communicate how s/he defines fair use of their intellectual property.

      1. I think it goes beyond that, because Fair Use can only be claimed once you’re actually in court.

        The statutory damages would still create an incentive for plaintiffs to go with the law of averages and file large numbers of suits even in the absence of actual damages, in order to troll for settlements at some $ figure below the statutory damage level.

        You wouldn’t have to worry about proving Fair Use if incentives weren’t in place to sue for trivial and non-economic infringements.

        1. Fair enough, but with fair use better defined, that strategy would be a losing bet as trivial cases would be more obviously trivial and the threat perceived by the “offender” would be less likely to engender a “settle” response. Particularly if a “loser pays the legal fees” rule were in place.

          It is not an unsolvable problem…but I think both better communication via CC licenses and reform to the damages rules make sense.

          1. In reality the cost to the lawyer plantiff is negligible and the fear induced in the blog owner is extreme.

            In those cases a quick settlement of 1 or 2 thousand is likely.

            This legal mugging has happend in CA quite a bit with the ADA as the legal weapon of choice be used against mom and pop shops.

            1. Some lawyers have been disbarred in California–and at least one sent to jail for very similar activity.

        2. because Fair Use can only be claimed once you’re actually in court.

          Wikipedia marks screen caps as “fair use” with an explanation for why it’s fair. Or ya think those notes only get added after the IP owners have already complained?

          1. Wikipedia’s marks have zero legal significance other than to create a basis for arguing that any infringement isn’t willful (and thus not susceptible to criminal penalties).

            1. to create a basis for arguing that any infringement isn’t willful (and thus not susceptible to criminal penalties).

              Isn’t that legally significant?

              1. In the context of a civil suit, no.

        3. You could bar settlements, once a suit has been filed. That is, anything you file, you must litigate to a conclusion.

          Would that matter much from the POV of a defendant? If the settlement costs are close to the cost of fighting, then it’s a bit of a wash. I imagine most defendents are in painful indecision, not sure whether a settlement or fighting it out is the higher cost. (If they weren’t, that would mean the plaintiff had room to demand a higher settlement, and, assuming he’s experienced, he almost certainly would.)

          Would it matter from the POV of the plaintiff? I think it would, very much. There’s no way this one tiny firm, practically a one-man operation, could litigate 88 separate cases in one year, for example. So trolls would have to either severely restrict their targeting, filing only the number of suits they can competently litigate — say a dozen a year — which probably means they couldn’t stay in business, or they’d need to restrict themselves to big payoff cases, where large injuries could be proven. Which sounds like a useful change.

          The problem with allowing pre-trial settlement, just like the problem of plea-bargains, is that asymmetrical information puts huge amounts of power in the hands of the threatener — either the plaintiff in a civil case, or the DA in a criminal case — and there are no Constitutional protections at all when you’re negotiating a settlement out of Court. It’s a clear invitation to bullying.

          1. The problem is that settlement costs are NOT close to the cost of fighting. The cost of fighting such suits is high enough (unless you can find some foundation willing to help you) that it is almost always cheaper to settle. That’s the business model RightHaven is using: they probably won’t win anything but minor damages. The range of statutory penalty (except for certain circumstances not in play in most of these suits) is $750-$30,000. Most of these, if they went to trial, would be at the low end. But the cost of taking it trial would be tens of thousands of dollars. So the bullying continues.

            I see that their latest suit is against a former Mafia enforcer nicknamed “Tony the Animal.” The confidence that Gibson has in the ability to reform such a person is touching.

          2. We’re talking more copyright, but patent litigation costs are insane, and they’re generally uninsurable. Naturally, to help matters, the PTO grants patents over anything and everything like they were selling swampland in Florida.

    3. An article posted by someone non-commercially on a cat blog nobody even sees probably did not cause any economic damage whatsoever to the plaintiff.

      Of course it did — the plaintiff was not paid the proper licensing fees for their work.

      By your logic, if you go to a barber and get a haircut, and then walk out without paying, the barber has not suffered any economic losses either and is in no position to sue.

      1. Again correct. Licensing fees, however, depend upon the use being outside of fair use. I think the Cat Blog should count as fair use (in most cases) as it would be equivalent to me lending my copy of the NYT to my neighbors.

        1. Or perhaps it is more equivalent to me leaving my copy of the NYT in the gate area at the airport before I get on the plane…but still, it is fair use.

        2. If you lend out your copy of the NYT, then you don’t have access to it while your neighbors are using it. That’s not the case when you post something on the Internet.

          A closer analogy would be making photocopies of the NYT and placing them on your doorstep so that your neighbors could read them while you still maintain your own copy.

          1. You notice how few people actually photocopy the entire NYT and do that? Why? It isn’t copyright; it is that the convenience of buying another NYT doesn’t justify the cost or effort.

            Now, if the Review-Journal articles in question had been behind a paywall, and so they lost sales because of these infringements, they would have a strong argument. But the articles were available, for free. We linked to the articles on their website. They lost nothing.

            1. Ah, but people would have little reason to follow the link since you provided the full text. So, you were reducing the number of page views the newspaper site got.

              Now that damage might not have been significant, true, but that is not for you to decide. There are any number of ways you could have satisfied your goals of making the stories available to your visitors and preserving them for scholarly research *without* violating copyright laws. You could have asked for permission from the newspaper to post the articles, which they probably would have given (perhaps for a nominal fee) if the damage to web revenue is as insignificant as you suppose. Or, you could archive the full text in private storage inaccessible from the web so that if the link later went dead, you could provide the full text to scholars at their request.

              The point is, it doesn’t appear you even attempted to work around the demands of copyright laws and the legitimate rights of original sources — you just cut and pasted and assumed no one would ever catch you, and if they did it would just result in a take-down notice slap on the wrist. Well, you done miscalculated on that point, and now you’re going to pay for your sloppiness. Sorry, but that’s the way things have to work.

              1. “Well, you done miscalculated on that point, and now you’re going to pay for your sloppiness. Sorry, but that’s the way things have to work.”

                Except that the case law on this is not as simple as your “copyright law is my idol” approach claims. And no, things “don’t have to work” that way, unless your primary goal is not to protect copyright, but to enrich leeches.

  8. I predict diminishing returns in this thread.

      1. Cracker-ass, cracker!

      2. Hitler opposed copyright.

  9. Sounds like these guys are the copyright equivalent of patent trolls…

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  11. Insult to injury: $5,000.00 “donation” to some charity because the donkey-fellating attorney’s kid has some kind of birth defect.

    wtf? Is that “creative sentencing” in action?

    Nope. We settled, and that’s what the donkey-fellator wanted in the settlement.

    1. Oh, sry, having never been involved in a lawsuit…

      FUCKING SETTLEMENTS, how do they work?!

      1. like magnets

      2. The plaintiff, knowing full well that the defendant has done nothing wrong, gets a lawyer to extort a sum of money from the defendant that is equal to or less than what the defendant would have to pay another lawyer to prove his innocence in court.

        1. Better analogy in this case: where there is reason to wonder if the defendant did something wrong, but even if so, the damage done was trivial compared to the amount being sued for. Remember that the reason the suits demand $75,000 is that you can’t generallly file a diversity suit in federal court for less than $75,000. Filing a suit for the correct amount would be impossible under 28 USC 1322, unless there was evidence of an attempt to hide the identity of the owner of the blog.

    2. About those CC machines though…why are they even made in such a way that they can print the entire number on the receipt? Maybe you have a suit of your own, against the swiper mfger…not that you’d result to something so lame…

    3. If the loser was required to pay the winner’s attorney fees would you have fought to the bitter end?

  12. Ackerman and Klein are still the favourites, but I think we have a new contender in the First Annual H&R Backpfeifengesicht Contest.

    1. +1

      also, dude looks like my old boss.

      and he was such a cock.

  13. About those CC machines though…why are they even made in such a way that they can print the entire number on the receipt?

    It was a software problem. When the law was passed requiring truncation, the company we leased the machines from updated the software to truncate. A later upgrade undid that on some of our machines.

    The lease agreement (which predated me, I’m glad to say) immunized them against damages. So we had no case against them.

    FUCKING SETTLEMENTS, how do they work?!

    Its an agreement between the plaintiff and the defendant. The defendant pays the plaintiff, and the plaintiff dismisses its lawsuit.

  14. Drill Bay-Bee Drill!

  15. How long until the Las Vegas Review-Journal realizes there is cash involved, hires an inhouse team, and does this themselves?

  16. I would propose that if the instigator of a lawsuit loses that they must reimburse the defendant for the cost of their defense.

    However that will ever happen in the land where lawyers write laws for the sole purpose of creating work for lawyers.

    1. for some reason I thought that’s the way it worked. well that sucks.

      1. There are people who make a very good (and legal) living off of extorting settlements from parties that they know to be innocent, because they also know that settling is cheaper than proving innocence in a court of law.

        99% of lawyers give the rest a bad name.

        1. This really isn’t fair. I’ve talked to a lot of lawyers so far. I haven’t talked to one who thinks what RightHaven is doing qualifies as ethical, especially the filing without a demand letter, and registering a copyright in order to have a basis for a huge lawsuit–rather than registering a copyright and demanding a takedown.

          I’m sure Gibson will make himself a pretty penny doing what he does. There’s a reason that lawyers are held below used car salesmen in the public sentiment.

          1. I kind of hope that they make the error of tangling with some well-heeled plaintiff or out-of-work attorney who has the resources and the wherewithal to turn this around on them. I’d raise equitable defenses of copyright misuse and unclean hands, based on their using copyright law not to vindicate their ownership rights but to monetize content.

            1. There are quite a number of problems here–but who has deep enough pockets to take him on? If there were organizations devoted to gun rights in the U.S., they would see the damage done to a useful research tool, and there might be a chance. But there are none.

          2. I haven’t talked to one who thinks what RightHaven is doing qualifies as ethical

            I’ve heard lawyers say a lot of things, and I’ve learned over time not to believe a filthy word that can’t be backed up by a third party that is not also a lawyer.

          3. I’m not a lawyer, but I assume there’s some set time period that a lawsuit will be filed after if the take-down notice is ignored. Let’s say 48 hours just to have a number to work with.

            So you’re telling me that, if a website has an unauthorized copy of an entire copyrighted work up for months, that’s not grounds for a lawsuit, but if they have it up for an additional 72 hours after the take-down notice then it is grounds for a lawsuit? That seems bizarre to me.

            1. The difficulty here is that Fair Use is astonishingly vague, and one could genuinely believe that you were within Fair Use. It’s not like there’s a fixed number of words or percentage that makes it Fair Use and beyond that, it isn’t. Fair Use depends on the commercial vs. noncommercial use; the extent to which it causes actual damages to the copyright holder; and the extent to which the use made benefits a public purpose. There are decisions that have upheld the copying of an entire article as Fair Use, because of those other circumstances.

              A clear, precise definition of Fair Use would help a whole bunch.

              1. The reason fair use can’t be fairly or precisely defined is that it’s a defense that’s, essentially, justified in terms of public policy: holding people liable for copyright infringement when their use of a copyrighted work is furthering rather than compromising the goals of copyright law is silly. But the question of whether someone’s particular use of a particular copyrighted work is actually furthering rather than compromising the goals of copyright law is an inherently subjective inquiry into the specific context of the use. So you unavoidably end up with a muddle. Seeking clarity and precision here is Sisyphean.

              2. There are decisions that have upheld the copying of an entire article as Fair Use, because of those other circumstances.

                I would imagine those other circumstances must have been pretty damn compelling in such cases. It took me roughly two minutes to figure out ways to satisfy your goals of preserving material for scholarly research while respecting copyright law without any questionable invocations of fair use. I simply don’t see why you would play Russian roulette with your site in that manner, just assuming that it would be considered fair use when that doctrine is as vague as you seem to know.

                1. “I would imagine those other circumstances must have been pretty damn compelling in such cases.”

                  The government was being sued because researchers had made copies of an entire articles out of a journal.

                  I now know how incredibly sloppy and vague Fair Use doctrine is. There are plenty of websites out there that have the full text of law review articles on them, and because they have done for scholarly and educational purposes, no one is bothering them. Indeed, in almost seven years of doing this, not a single news organization ever expressed any upset or concern about this. My guess is that this is because most news organizations recognize that the economic value of old news is near zero, and because we were linking to their copy, and attributing from where it came.

                  So tell me: how do I preserve these news articles that in many cases disappear after a few weeks, so that other researchers studying these problems can see them? The Review-Journal, to their credit, tends to keep stuff around. Many news organizations do not, and even services such as Nexis don’t have a lot of the news stories that we preserved.

    2. Much of the rest of the world has just such a “loser pays” civil liability system. The U.S. is a comparative rarity in that, here, each party bears his own litigation costs.

    3. I would propose that if the instigator of a lawsuit loses that they must reimburse the defendant for the cost of their defense.

      That would have some negative consequences too. A poor person, or even a middle-class person, would be insane to sue a giant corporation even if they had a legitimate gripe. Not only would they have to pay their own legal fees out of pocket (as no lawyers would work on contingency in such a system), but they would risk being utterly ruined financially if they lost the case.

      I’ll take our system where only clearly frivolous lawsuits have the “loser pays” provision.

      1. Good point. Seems it could be handled with a cap on the “costs” claim to avoid the stacking the costs deck, but as we know there will always be those that game the system no matter what rule is written.

      2. as no lawyers would work on contingency in such a system

        That 1% that is given a bad name by the other 99% would.

        1. Clever!

    4. How about a simple change in the law that has statuatory and punitve damages awards going to a general fund instead of the plantiff?

      That would eliminate the incentive for scum-bag shake downs.

  17. I would propose that if the instigator of a lawsuit loses that they must reimburse the defendant for the cost of their defense.

    Known as the “English Rule”. I would wholeheartedly support this. In fact, I write it into every contract that I can.

  18. One change to copyright law that makes sense to me is to make nonprofit organizations ineligible for copyrights. They get the special privilege of not having to pay taxes, so it’s fair to disallow them the privilege of copyrights. This would also have the effect of neutering the biggest copyright abuser in the US, which is the Church of Scientology.

    1. I seem to recall that the U.S. government can’t generally copyright its works.

      1. Correct, but some state governments can, and of course the federal govt can always get around that by hiring a government contractor to create the work (and thus hold the copyright) with the feds getting a license to use the work.

  19. Real libertarians support intellectual property rights. The people who maintain the Armed Citizen website knowingly violate copyrights by posting entire articles (with the authors’ names removed, no less). If they were truly acting as a clearinghouse for information, they would have posted articles only after obtaining permission, or they would have posted links with brief summaries of the linked articles. Those actions would fulfill the clearinghouse mission without violating copyrights. I will have no pity for them if they get hammered with a big fine.

    1. Also

      Real libertarians support all state enforced monopolies.

      Real libertarians support paid speech not free speech.

      Real libertarians support state sanctioned association not freedom of associtation

      Real libertarians support anything the state tells them to.

    2. You might want to read about Fair Use as applied to noncommercial purposes. Copyright has never been viewed in U.S. law as equivalent to a property right. How many other property rights expire after a fixed number of years?

      1. How can The Armed Citizen claim “noncommercial purpose” when it has advertising on the website?

        1. The advertising (most of which is clearly just donations by businesses) covers server costs, and that’s about it. We’re talking trivial sums. A $100 in revenue in a quarter is rare.

  20. If the site is an archive, can they claim status as a library? I believe that the copyright rules for libraries are different than for the ordinary Joe.

    1. Actually, no. But noncommercial purposes that advance public interests enjoy a much broader Fair Use than commercial purposes. See Los Angeles Times v. Free Republic LLC (C.D.Cal. 2000) for a commercial purpose example, and that’s a major part of why Free Republic lost.

  21. “Remember that the reason the suits demand $75,000 is that you can’t generallly file a diversity suit in federal court for less than $75,000.”

    Given copyright law comes from a federal statute, how is this a “diversity” case? Isn’t this an issue over which federal courts have exclusive jurisdiction REGARDLESS of the amount in controversy?

    1. Parties are in different states, with no connection to Nevada.

      1. Doesn’t matter. Federal courts have subject matter jurisdiction over matters arising under federal law, and matters where there is a diversity of citizenship between the parties. Since copyright claims arise under federal law, there’s no need to inquire into whether the parties are diverse.

        1. “(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between?
          (1) citizens of different States; ”

          Perhaps I’m missing something here–but why so much energy in these complaints arguing jurisdiction, if it isn’t required? Or are you saying that diversity doesn’t matter, as long as general or specific jurisdiction applies?

          1. I think even if the amount in controversy was say $40,000 it wouldn’t make a difference. A federal district court is a federal district court. And they have EXCLUSIVE jurisdiction over matters involving federal law. State civil courts cannot adjudicate federal civil claims.

            1. I’m not disagreeing. If the amount in controversy was $40,000, unless there was an explicit statement in the code allowing otherwise, such a suit couldn’t be filed in federal court. There’s a reason that professional photographers were asking Congress to create a federal small claims copyright court several years ago.

              The problem was that actual damages on photographic copyright violations are usually pretty small. (In many cases, inadvertant, I am going to guess.) If the photograph’s copyright is registered (and most are not), it would take at least three such violations to reach the $75,000 limit, because the statutory damages range is $750-$30,000 per violation. (To get to the $150,000 per violation level you have do things that demonstrate something a lot worse–like hiding who you are, such as fake domain registration information.)

  22. Gibson speculates in copyright; buys ‘rights’ for a few cents, schemes to make big dollars. A business model that produces nothing of value, may he dry up and blow away…

  23. “Righthaven’s business model involves acquiring the copyrights for specific articles originally published by the Las Vegas Review-Journal, then filing lawsuits against website owners who have posted those articles without permission.”

    In principle I am usually sympathetic to Intellectual Property rights, but having as your organization’s purpose to acquire copyrights for the sole purpose of bringing suit seems an utter and total corruption of the purpose of IP rights

  24. Some creators want you to post their works on your website. To paraphrase Cory Doctorow – When obscurity is the issue, why would you worry about piracy.

    Self-interest motivations do flip at some level of notoriety, of course.

  25. If I were going to sue people over copyrights (which I’m not), I think I would sue NORML (because they are most likely stoned-out pacifists) than The Armed Citizen (because they might have guns and get pissed off easily). Of course, that’s just me.

    1. RightHaven is now suing a former Mafia enforcer known as “Tony the Animal” for copyright infringement. Why, gun owners are choir boys with halos over our heads compared to that.

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  29. I think it’s pretty sad that a libertarian magazine posts an article like this that highlights a clear case of injustice and libertarian rights violation and never even implies that copyright law is unlibertarian, unjustified, and the cause of this; to the contrary the author says “Which is not say there’s no place for copyright enforcement on the web. As a freelance writer, I have a predictable attachment to the old-fashioned idea that content creators should be able to largely call the shots on how their work is disseminated.”

    As I noted in an article published today, “The Death Throes of Pro-IP Libertarianism,” libertarians, now that they are opening their eyes to look at IP, have in fact resoundingly rejected IP and recognized that it just another terrible state law. Reason is behind the curve here.

    1. There’s a case for IP, but it is based on pragmatic arguments that it benefits economic and cultural development. The Philadelphia Convention and ratification debates concerning “monopolies” were arguments about copyright and patent. There’s no question that both provide substantial benefits to a society–but the courts have long recognized that IP is not a right in the same as property rights, and that public interest will often take precedence over the copyright holder’s economic interests. See NXIVM Corp. v. Ross Institute, 364 F. 3d 471 (2nd Cir. 2004)

      1. If this is the argument, then it’s problematic for lack of principle and other reasons (methodological as well as moral problems with intersubjectively comparing and adding up utility) — but anyway, you would think the burden of proof is on those who make this argument. You have to show that there IS a net benefit. It’s never shown. There is no proof. IP advocates never even try to show it, they just assume it. They ignore studies that contradict them–and they basically all contradict them. They are not sincere at all. If they were they would be ANTI-IP for utilitarian reasons.

        SEe http://mises.org/daily/4018#ref4 and http://mises.org/daily/4018#ref3

        1. From a legal standpoint, the Constitution explicitly provides for Congress to pass copyright and patent laws. Congress has authority to repeal those laws if it wishes–but patent law in particular played a big part in why the U.S. was a center of invention in the 19th and 20th centuries.

          I admit, without patent law, the cotton gin would never have been perfected, and slavery, which was already dying in 1789, would probably have evaporated away in a couple of generations.

          1. There is no evidence that supports your contention that patent law helped or was necessary for the innovation of the US at any time. This is just assertion.

            1. Gee, you don’t think that the U.S. was the first country to adopt a policy that copyright and patent was available to all parties, without having it be a special favor, might have something to do with why the U.S. was at the center of technological innovation? We know why Eli Whitney invented (actually, perfected) the cotton gin: the expectation of getting rich from it. He didn’t, because it was harder to win patent suits than it should have been, but his goals were obvious. By comparison, English inventors of the same period were noticeably less productive, at least partly because many major inventions were not allowed patents there.

              If you want to argue that patent and copyright aren’t libertarian, there’s a certain merit to that argument. But to assert that the major inventions that made the U.S. stand out in this period were not the result of patent law is ideologically pure, and pretty well isolated from history.

    2. Are you purporting to be the goddam Libertarian Pope or something, Mr Kinsella? I don’t see where you have the authority to call anyone unlibertarian.

        1. The difficulty here is the notion of what copyright does. Tulpa clearly sees copyright as the equivalent of laws against theft; Kinsella sees copyright as an unwarranted privilege granted by the government.

          There’s no question from reading the history of copyright laws that they are a privilege granted by the government–and like many privileges, the original purposes aren’t widely understood. The goal wasn’t to protect copyright holders analogous to laws against theft; it was to encourage creation of ideas and expressions that the government saw as valuable. The benefit to the copyright holder was NOT the primary objective of copyright law; it was the benefit to the society as a whole. There comes a point where those benefits have to give a little before other societal goals–and since copyright is a privilege, not a right, Tulpa should back off his bogus analogies. If someone brought in a machine that scanned Tulpa’s 1987 Corvette, made a copy, and you drove off in the copy, Tulpa wouldn’t have a natural rights claim that he had been the victim of theft, even if he had paid a pile of money for his car–and the copier paid nothing at all.

          1. Clayton, this is from before, but if you’re still tuned in, I may have the answer about jurisdiction, though sometimes a little knowledge is worse than none.

            Federal courts have jurisdiction over copyright infringement claims, but arguing who actually owns the copyright can often be an issue of contract, which would often turn on state law and interpretation. This is pointed out in 339 F.2d 823, T.B. Harms Co. v. Eliscu. Judge Friendly makes the distinction between which claims rightfully “arise[] under” the Copyright Act and which ones don’t. The Copyright Act in this case is the 1909 one, but I still think the case is good law.

            http://www.lawnix.com/cases/harms-eliscu.html

            Hope I’m right, as I just re-read it quickly, and I hope that helps.

  30. Whoa. I just read the comments again, and while at first I thought Clayton was just a generally interested and thoughtful guy, he now appears to be an interested party in the case.

    So…the above comment was in no way legal advice, it was to add to the conversation. I can’t stress that enough.

    Peace,
    ‘Ole Casey

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  34. Congress has authority to repeal those laws if it wishes–but patent law in particular played a big part in why the U.S. was a center of invention in the 19th and 20th centuries.ECONOMICS

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