Getty/Picscout: The WORST COPYRIGHT INFRINGERS EVER CREATEDMany of us are aware of what Getty’s ‘Picscout ‘ is and also the basic premise of how it works.
http://www.lesphotographes.com/2011/05/29/picscout-protects-image-copyright-the-first-digital-fingerprints-for-photography/---
I feel that Picscout violates one of the five ‘pillars’ of copyright (17 – USC - 106) as follows:
The very first condition:
1) To reproduce the work in copies or phonorecordsThat is, only the copyright owner has the exclusive right to reproduce copies of a work. A violation of any of the exclusive rights of the copyright holder is a “copyright infringement”.
Picscout downloads images from the Internet en masse. It is indiscriminate; many of these images are formally copyrighted by other parties.
Because Picscout downloads the images and stores them on a retrieval system (hard disk) in order to process them, they are in fact making illegal copies of copyrighted materials on a regular basis.
Traffic logs of Websites visited by Picscout will clearly show IP addresses associated with them, the dates/times and which images were downloaded.
Some may say that their own Web browser does the same thing every day, and what of Google cataloging images? These are covered by “fair use”, DMCA provisions, and the fact that a link to an image outside of one’s own site is not an infringement.
I don’t think that Picscout is covered by these exceptions.
Picscout’s actions can be assumed to be willful, as no effort is made to discriminate between images owned by Getty and images owned by other parties (…”acted in reckless disregard of those rights” Brown v. McCormick 87 F.Supp.2d 467, 482 [D.Md.2000]). All images are downloaded intentionally by Picscout.
Indeed, I think that this is also why the copyright trolls pursue even “orphaned files” (that exist on a server, but don’t appear on a website) as copyright infringements. One need only make an electronic copy to be an infringer.
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Clearly, Picscout downloads copyrighted images for use in a business that employs them as part of a revenue stream for Getty images and other independent clients.
Whether or not money is made from a particular image that has been downloaded is irrelevant.
Copyright law has been broken, and damages can be sought under section 17 USC – 504, along with legal fees and other costs under section 17 USC – 505.
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This would apply to copyright images only. However, consider a situation where an image (or many images) that were copyrighted in “bulk” were downloaded by Picscout.
Could Getty argue that the copyright registration was invalid because the images were registered in bulk? Perhaps. But then they would be “on the record” saying that this method is invalid.
This is the very same method that they use to register most of their own images.
I’m quite sure that Picscout has copied the entire collection of Corbis and Masterfile images several times over.
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If an entity were to win on the basis of this in court, then every copyrighted image that Picscout downloaded in the preceding three years was technically a copyright infringement.
Furthermore, any future downloads of copyrighted material by Picscout is technically a copyright infringement.
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Getty has a huge investment in Picscout, and they make a lot of revenue from “infringements”, so they would fight back vigorously. Or, they’d pay a settlement to avoid making a court precedent that others could use against them. But, I do feel that a large company could take this on (that’s why Getty doesn’t often harass such companies). Or, perhaps it could be part of a large “class action”.
Now, no attorney is going to log onto the Web and say "Yes! Do this.". They're very careful about anything speculative. But think about it.
Just my thoughts.
S.G.
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