Anonymous
Guest
|
 Posted: Wed May 10, 2006 2:09 pm Post subject: Blackmask Status Report |
 |
|
Readers of public-domain Palm ebooks may have noticed that Blackmask.com is currently no longer accessible. In relation to what the prior entry on this blog covered, you may surmise the worst.
As it happens, David Moynihan of Blackmask.com has been in touch with David Rothman of the TeleRead blog, and Rothman relays the following information from Moynihan:
| Quote: | They [Conde Nast] sent a DMCA Takedown Notice,
We’ve issued a counter-notice,
The ISP has deemed said counter valid, and oh yeah, the LOC [Library of Congress copyright office] just approved the transfer of all Doc and Shadow titles (with reservations).
It unfortunately takes 10 days from receipt of counter notice until my two sites can be back up. |
A lot of people seem to be taking this as some sort of happy indication that Moynihan has won, his site will be back in ten days, and all will again be right with the world. However, there are some additional factors of which people should be aware.
First of all, the 10-day waiting period does not mean that Blackmask.com will automatically be back at the end of those ten days. The purpose behind the 10-day delay after a counter-notice is to give the copyright-holder (in this case, Condé Nast) time to respond to the counter-notice. They might very well seek (and receive) a restraining order against Blackmask.com, in which case it might not be up again until the court case is decided.
Secondly, the details of the affair are pretty hazy anyway. I have not yet been able to find anything explaining what Olympia Press, a renowned early publisher of erotic literature, had to do with adversely possessed book registrations; if anyone can point me to such material I would find it very interesting to read. Nonetheless, it is important not to assign too much significance to this announcement. In his original post in the matter, Moynihan says he "took a shot for recordation of transfer of copyright via operation of law: Adverse Possession under section 205 of the U.S. Copyright Code." This is all very well and good—except for the fact that it doesn't necessarily mean anything. The copyright office is not in the business of deciding who owns what; it's in the business of recording what people send it, that's all. Adjucating property disputes is a matter for the courts.
Furthermore, all that Section 205 says is that, more or less, "Copyrights can be transferred, here's how." It doesn't go into what circumstances are necessary for the transfer of copyright; furthermore, Section 201(e) of the Copyright Code says very clearly:
| Quote: | | (e) INVOLUNTARY TRANSFER. — When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11 [bankruptcy]. |
In other words, "If the owner didn't sign off, the transfer doesn't happen." As a friend put it, it might very well be that those "reservations" the copyright office mentioned amount to, "provided that you win your court case."
I'm not a lawyer, of course, and there's a great deal about this that I don't know. But as I said in my prior entry, it seems highly unlikely that Moynihan will be able to obtain those copyrights without a court battle, in which he will have to make a darned good case that he should be entitled to those rights by Adverse Possession. It goes against the grain of the way copyright is permitted to be selectively enforced, while trademark must be enforced or be lost.
At any rate, I hope as much as anyone that Blackmask will be back soon, and that the court case will go favorably for Moynihan. After all, rooting for the underdog is the national pastime. But on the other hand, Condé Nast does legally own those copyrights, regardless of whether or not they choose to make what we would consider the best use of them. Their legal position is very solid, and they have a lot of money. I hope I'm wrong, but as far as I can see Moynihan still has about a snowball's chance. |
|
FAQ
Search
Memberlist
Usergroups
Calendar
Register
Profile
Chat
Log in to check your private messages
Log in
