Ruling Imagination: Law and Creativity » Legal News

In loving memory of an American classic

pfriedman — Fri, 27 Jan 2012 19:15:23 +0000

Kota Ezawa, Slide 2006

This American Life tells the story of a “patent troll.”

pfriedman — Mon, 25 Jul 2011 18:08:07 +0000

NPR reporter Laura Sydell and This American Life producer/Planet Money co-host Alex Blumberg tell the story of Intellectual Ventures, which is accused of being the largest of the “patent trolls,” a derogatory term in Silicon Valley for companies that amass huge troves of patents and make money by threatening lawsuits:

Interview with me on News of the World scandal and its US implications

pfriedman — Fri, 15 Jul 2011 12:07:16 +0000

Charon QC, a UK lawyer (“after a fashion” – his words), interviewed me yesterday about the News of the World scandal and its potential legal and political implications for Murdoch in the U.S.

It may be old fashioned to say so, but what Righthaven is doing is Champerty.

pfriedman — Thu, 23 Jun 2011 16:16:08 +0000

There is a lot being written about Righthaven’s most recent loss in its campaign to enforce the copyrights in newspaper articles it purportedly purchased the right to enforce. I’ve pasted in a copy of the decision, Righthaven, LLC v. Hoehn, below. What seems most significant about the decision to me is the judge’s finding that Righthaven does not have legal “standing” to pursue the copyright infringement claim for the unlicensed use of an entire Las Vegas Review Journal article. I’ve previously written about this problem with Righthaven’s “business” model.

The problem is that Righthaven does not actually buy the copyright to the articles it subsequently claims infringement of. Rather, it only buys the right to sue for infringement if infringement occurs. The copyright owner retains all the other rights that go along with the copyright. Thus, in Hoehn, as Judge Philip M. Pro explains, the agreements between Stephens Media, the owner of the Las Vegas Review Journal, and Righthaven “deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.”

In his treatise on copyright, William Patry states that a plaintiff in a copyright lawsuit “must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce. To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale of a right to sue to someone with no interest in the alleged wrong being sued on for a percentage of the amount recovered. As the Second Circuit Court of Appeals has explained, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).
Right Haven, LLC v Hoehn (D Nevada 2011)

Is a man’s home his castle? Apparently not in Indiana.

pfriedman — Sat, 14 May 2011 18:27:38 +0000

Here’s a breathtakingly broad decision: The Indiana Supreme Court, in Barnes v. State (pdf), ruled 2 days ago that “there is no right to reasonably resist unlawful entry by police officers” into your home. As NWI.com explains the decision:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Justice Robert D. Rucker, in dissent, relied on the formerly well-founded belief that one’s home is one’s castle:

In Miller v. United States, 357 U.S. 301, 313-14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!”

Id. at 307. The same is no less true today and applies equally to forces of the State.