tag:blogger.com,1999:blog-12505562.post1941077322273542955..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: The Death of DivisibilityWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-12505562.post-71776324479559801592008-08-31T17:01:00.000-04:002008-08-31T17:01:00.000-04:00Let me elaborate further on the point. Basically, ...Let me elaborate further on the point. Basically, the Ninth Circuit held that a co-owner can never grant an exclusive license to others, because a co-owner does not held the exclusive right of the whole work. The same logic leads to the conclusion that a co-owner itself does not have standing to sue. <BR/><BR/>Of course, we know that a co-owner has the standing to sue the whole world -- except other co-owners. This is because the co-owner has the exclusive rights to his portion of the copyright -- whatever that is -- say 1%. For the same reason, a co-owner can assign the exclusive rights of its portion of the copyright. <BR/><BR/>There is nothing to prevent multiple co-owners suing the same defendant multiple times. Whether a defendant wants to join other co-owners to prevent successive suits is the sole responsibility of the defendant.<BR/><BR/>Ninth Circuit's decision was a simple logical error. It confused the "exclusiveness" in two different contexts:<BR/><BR/>1) exclusive control of the whole work (which a co-owner does not have);<BR/><BR/>2) exclusive right to a sub-division of the copyright.Copyright Law and Copyright Litigation Bloghttps://www.blogger.com/profile/10687389061872562179noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-10462301278719775812008-08-30T18:31:00.000-04:002008-08-30T18:31:00.000-04:00The Ninth Circuit started with the conclusion: "a ...The Ninth Circuit started with the conclusion: "a co-owner of the copyright could not grant an exclusive right in the karaoke-use interest of the nine referenced copyrights". But it never made any convincing proof.<BR/><BR/>Defendants' argument was actually that they might have obtained licenses from the co-owners, therefore plaintiff could not plead under rule 11 that defendants did not have a license from a co-owner. But, license is an affirmative defense and defendants have the burden of proof.<BR/><BR/>Following Ninth Circuit's reasoning, even a co-owner itself can never sue anyone for infringement, because a co-owner does not own the exclusive rights of the whole work.Copyright Law and Copyright Litigation Bloghttps://www.blogger.com/profile/10687389061872562179noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-75237041019548432182008-04-02T19:33:00.000-04:002008-04-02T19:33:00.000-04:00I absolutely agree that a non-exclusive licensee c...I absolutely agree that a non-exclusive licensee can't sue and certainly can't assign a right to sue to another; indeed, unless permitted by the owner of exclusive rights, a non-exclusive licensee can't assign its rights either, which are really only an agreement not to sue. But an exclusive licensee who assigns its divisible rights doesn't have standing to sue for infringement of those rights either unless it has retained a beneficial interest.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-51555332227704012552008-04-02T19:19:00.000-04:002008-04-02T19:19:00.000-04:00I agree with Mitch Z. that "it's very difficult to...I agree with Mitch Z. that "it's very difficult to see why TVT ... should be able to sue, but its assignee should not." But the problem is that TVT, a co-owner of the copyright, would NOT have standing to sue. Under 501(b), only the legal or beneficial owner of an EXCLUSIVE right can sue; and TVT by itself does not own an exclusive right; it does not have standing to sue unless its other co-owners join in. It doesn't matter whether the defendants are formal licensees of another co-owner or not; if the other co-owners are not willing to join in the suit as co-plaintiffs, then the defendants are effectively licensees by default of the non-suing co-owners. I think the court got the result right, despite some unfortunate dicta.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-35317079459779257222008-03-05T16:27:00.000-05:002008-03-05T16:27:00.000-05:00The court seems to be withholding judgment on whet...The court seems to be withholding judgment on whether karaoke rights are an appropriate division (without indicating the basis of its possible hesitation). Assuming that is a fair division, it's very difficult to see why TVT (originally a nonexclusive owner of karaoke rights among others) should be able to sue, but its assignee should not. <BR/><BR/>Is the central problem the court's confusion or collapsing of license and assignment? E.g.: "Since<BR/>TVT’s assignment was admittedly non-exclusive [well, no], TVT succeeded only in transferring what it could under 17 U.S.C.<BR/>§ 201(d), a non-exclusive license ...." As assignment doesn't transfer a license.<BR/><BR/>Calling a fractional license "exclusive" when other co-owners can confer the same kinds of license may involve a play on words. But if TVT has effected an assignment, then it stands in TVT's shoes and should have the same standing.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-75380847723095422832008-02-29T13:49:00.000-05:002008-02-29T13:49:00.000-05:00Hi Anon, I agree that plaintiff could not sue othe...Hi Anon, I agree that plaintiff could not sue other licensees of co-authors.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-78940414263719916112008-02-29T13:38:00.000-05:002008-02-29T13:38:00.000-05:00Either I don't get it, or perhaps this decision is...Either I don't get it, or perhaps this decision isn't as ill reasoned as is being described. I think that the court is dead wrong in saying that Sybersound did not have standing. Clearly it did. Moreover, to the extent that the holding can be construed to read that TVT could not break out karaoke use as a discrete interest and grant Sybersound an exclusive license in everything that it had regarding that interest, it is also wrong. But all that gets Sybersound is the right to stand in TVT's shoes as a co-owner of TVT's interest (meaning that TVT can no longer license karaoke to anyone). But I think that the court is correct that Sybersound cannot, by virtue of its license from TVT, claim that it is the sole (i.e., exclusive) party that can license karaoke uses as against licenses (however characterized) issued by the other co-publishers. That would, indeed, mean that they's sold the other publisher's "horses."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-43503776645425306692008-02-29T10:58:00.000-05:002008-02-29T10:58:00.000-05:00Agreed, Kevin, hence the breathless title of the p...Agreed, Kevin, hence the breathless title of the post.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-11908969615105748362008-02-29T10:49:00.000-05:002008-02-29T10:49:00.000-05:00This decision seems much broader and therefore wor...This decision seems much broader and therefore worse that Blige. In the latter, the result was more defensible based on the court's reasoning that the "retroactive" transfer destroyed the co-owners' "accrued right" to sue for damages.<BR/><BR/>Here, the court seems to be saying flat out that, retro or not, a co-owner cannot effectively transfer a partial interest. Yikes!<BR/><BR/>Kevin ParksAnonymousnoreply@blogger.com