March 31, 2005

9th Cir.: Only Copyright Holders May Sue For Infringement

Last week, the Ninth Circuit Court of Appeals announced its en banc decision in Silvers v. Sony Pictures Entertainment. They held that only copyright holders may sue for infringement, and that infringement claims cannot be assigned to others.

In this case, Silvers wrote The Other Woman, a TV movie screenplay, as a work-for-hire while employed by Frank & Bob Films. As with all works-for-hire, copyright vested in the employer, not the employee; Silvers never owned the copyright or any of the bundle of exclusive rights that comprise it. About three years after the TV movie aired, Sony released Stepmom, which Silvers claims infringes the copyright in her screenplay. (You can compare a plot summary of The Other Woman with a plot summary of Stepmom for a sense of the merits of the infringement claim, which, though interesting, are irrelevant here.)

Frank & Bob Films assigned its infringement claim against Sony to Silvers. Put plainly, this means that Frank & Bob had a right to sue Sony (known as “standing”) and tried to transfer that standing to Silvers. The question was whether copyright holders can assign their claims without assigning any part of the copyright itself.

The court held that copyright holders may not assign their claims to third parties. Judge Graber, writing for the majority, held that section 501(b) of the Copyright Act barred Silvers’ claim. It reads, in pertinent part:

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.

The court held that only the rights enumerated in section 106 (the exclusive rights to copy the work, perform the work publicly, and so on) can be “an exclusive right under a copyright” under section 501(b). Because Silvers owned none of these exclusive rights and no other part of the Copyright Act granted her standing to sue, the court said, Silvers’ claim was rightly dismissed by the district court for lack of standing.

I think section 501(b) is pretty clear. Only those who own the copyright at the time the infringement takes place should be able to sue; Silvers did not own the copyright at the time the infringement took place; therefore, Silvers may not sue. Congress could have included language permitting the assignment of claims and chose not to do so. (Expressio unius est exclusio alterius — a canon referenced recently on this blog.)

There’s a good reason for this, too. Intellectual property, unlike other kinds of property, is merely a right to exclude — a right to sue for infringement. It includes no positive right to do anything. Look, for example, at blocking patents or at derivative copyrighted works; in both cases, the right to practice the patent or publish the work is not necessarily secured by the patent or copyright itself. All that is granted is the right to sue for infringement. Because the right to sue is the essence of the property, the right to sue cannot be separated from the property. It’s analogous to the reason we don’t allow transfers of trademark rights without transferring the accompanying goodwill — one just doesn’t exist without the other, so they shouldn’t be able to be owned separately.

ASCAP Gets Podcasting

I reported here that ASCAP’s website purported to offer podcasting licenses when the licenses offered didn’t actually cover podcasting, likely due to a misunderstanding of the technology. I looked again today, and ASCAP has removed all references to “pod-casting” from its web licensing page.

Way to go, ASCAP.

March 30, 2005

Links to Orphan Works Comments

The Copyright Office page linking to the comments in its Orphan Works NOI proceeding is pretty poorly formatted; the column containing the names of commenters and the column containing the links to comments don’t line up, so it’s hard to find the comment you’re looking for.

So, I fixed the list. Here are links to all of the comments posted on the Copyright Office site.


Orphan Works Comments Posted

The Copyright Office has posted the comments it received in its Orphan Works NOI proceeding here. The page lists 716 unique comments submitted.

March 29, 2005 on CNN’s “Inside Politics”

This blog’s coverage of the Grokster oral argument was featured briefly on CNN’s Inside Politics today. Jackson’s Junction has a video clip of the segment.

Plagiarist Trapped

This seems like a funny, if perhaps unnecessarily mean, way to trap a plagiarist. Then again, perhaps it’s not too mean; academic plagiarists, like those who deface library materials, have their own deep, deep section of hell.

Reports from Grokster Argument

Reports are beginning to roll in from attendees at this morning’s Supreme Court oral argument in Grokster:

More to come. I’m optimistic. It sounds like even if they end up taking out the defendants, they won’t decimate technological innovation at the same time.

March 28, 2005

Orphan Works Deadline Passed

The deadline for submitting comments to the Copyright Office regarding orphan works passed last Friday. The comments aren’t yet posted on the Copyright Office website on the proceeding, but rumor has it there were well over 400 comments submitted. I’ve seen a few of the comments that were submitted by public interest groups, and there should be plenty of material to fill reply comments (which are due May 9th).

A Quiz

I’ve never before posted a quiz on this blog, but this one seemed germane:

You are “Inclusio unius est exclusio alterius”! You presume that the legislature chooses words very carefully when it drafts statutes. Because they could have used a different word, but didn’t, the word not chosen was deliberately excluded. You assume a lot based, not just on what’s in front of you, but on what isn’t. You have great faith in others’ ability to know exactly what they want. Probably too much.

Which Canon of Statutory Construction are You?
brought to you by Quizilla

March 26, 2005

SCO Copies GrokLaw

SCO has posted scanned legal documents on its website that it took from GrokLaw, a website antagonistic to SCO’s legal claims. Posts on Groklaw and Slashdot accuse SCO of hypocrisy in light of its copyright maximalist stance.

But not even SCO claims that scanning a document gives the scanner any rights in the scanned file. “Sweat of the brow” has been rejected as a justification for copyrightability for years — there’s simply no modicum of originality. This limitation is a Good Thing, since, among other things, it enables access to freely-reproducible copies of public domain content.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

Creative Commons License
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