ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: scraggy on July 21, 2012, 12:15:14 PM
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As those of you who have read my story know, I have received copies of around 100 settlement demand letters sent here in Israel by Marot Images ( Getty’s representative here ) .
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/class-action-suit-filed-against-getty-images-master-delegate-in-israel/
Approximately, 5% of the images involved the "Dorling Kindersley" or "National Geographic" collections.
Getty’s website gives full copyright credit to these two collections (see links below) , but the two collections continue to sell the same rights managed licenses themselves.
This would seem to suggest that Getty only owns a NON EXCLUSIVE license. Marot Images is therefore sending settlement demand letters for images to which even Getty does not own the exclusive license (and neither therefore right to sue).
I wonder if the situation is similar in the USA.
How many people in the USA have paid Getty a settlement for images from these two collections? Oscar may have a statistical sample of letters on which to base an estimate? If it is a statistically significant number, is this a possible class action suit? Are there other collections similar in nature to these two?
Here in Israel, a letter recipient signed an agreement to pay Marot Image around $1000 for using this image - Title: Jewish Honey Cake with some slices removed
http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&assetType=image&p=75375175
Credit is given to "Dorling Kindersley" (DK books).
But the same image is still sold by DK books (at a much lower cost – which is also interesting!) at this link:
http://www.dkimages.com/discover/DKIMAGES/Discover/Home/Food-and-Drink/Desserts-and-Confections/Cakes/Jewish-Honey-Cake/Jewish-Honey-Cake-1.html
If these two companies both sell the same image rights, then neither has an exclusive license.
I actually wrote to DK books about the image, and received this reply
DK Images owns the image and copyright but the image is distributed as well as through us, via Getty Images.
Either DK Images or Getty can sell this image. Exclusive and non-exclusive licenses are available for this image.
DK Images does not currently have an exclusive license with any third party on this image.
Hope this is clear
thanks
Paul Turner.
Dorling Kindersley is part of the Penguin Group.
The Penguin group belongs to Pearson plc and is considered the largest education company and the largest book publisher in the world.
By the way, Marot Image sued the woman above for violating their copyright. I attended the first court hearing. The judge got it all right! The defense lawyer didn’t have to say a word! The judge knew that there was no way for Marot Images to own the exclusive license! The case will continue on October 10.
Regarding National Geographic, I was personally sued by Marot Image in a Tel Aviv court for using this image:
http://www.gettyimages.com/detail/photo/church-of-the-holy-sepulchre-old-city-high-res-stock-photography/57504480
But the exact same image is still sold by National Geographic - Picture Id:976105
http://www.nationalgeographicstock.com/comp/IR10/114/976105.jpg
In my case, I spoke to the photographer, who insisted that he had never given an exclusive license to anyone!
The case against me was dropped.
If you use this link - http://www.nationalgeographicstock.com, you can price the image on NG - Picture Id:976105
My main question: Is Getty also sending demand letters in the USA for the two collections mentioned above? If so, wouldn’t this be outright fraud?
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Yes it would, Ian, you're absolutely right. I like your suggestion to vet the data we do have to see if it involves any of the images they don't have a right to enforce.
The class action would probably have the most solid foundation if the plaintiffs were the folks who already settled and paid on these fraudulent claims. The catch-22 of the situation is that these people have already proved to be timid by settling with Getty and probably signed non-disclosure agreements. This would make them hesitant to come forth and go on the offensive against Getty.
The second group that could bring the class action are the folks who have not settled but are being harassed and pressured by Getty Images and their "compliance team." This demographic is more promising because they've proved they're willing to come forth and fight back. These folks are not afraid of the bullying and posturing and would likely participate eagerly.
Then the next question is the legal strategy. What would Getty be sued for specifically? I went to art school, so I'll leave that to those with more experience in legal matters.
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Most of the cases involving Getty in the states largely are for images in the Tony Stone Collection. I think I may have seen a reference to Getty / penguin in PACER at one time, I'll have to recheck that. Chances are good as Moe stated that those that have settled signed an agreement, and probably don't want to hear about this anymore..But very soon I hope to have a nice list of names and address, compliments of the WA. AG..What I'm going to do with this info is yet to be seen..
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Moe, I am not a lawyer, but my fear is that the only problem with relying on the second group you mentioned is that, since they paid nothing, their damages are harder to prove.
"The second group that could bring the class action are the folks who have not settled but are being harassed and pressured by Getty Images and their "compliance team."
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You're right, stinger. That's why it's important to define what it is that Getty would be sued for. It may be that the strategy is to sue for fraud, attempted fraud, wire fraud, maybe even extortion. I don't know enough about the law to even dream of suggesting the best strategy. It's important to assess the risk involved; overreaching could result in a counterproductive outcome.
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Was it not the case that "Marot Images" were collecting settlements/filing lawsuits under the guise of "Getty Images"?
Even though Marot has no formal corporate connection to Getty?
If this was the case, it's difficult to make valid comparisons in regard to the actions of Marot and Getty.
It's kind of like comparing apples to oranges.
S.G.
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I didn't make any comparisons.
I just shared some statistical information - that approx 5% of the images for which Marot Images sent letters were from two specific collections - National Geographic and DK books.
My questions:
1. Is my analysis correct that Getty does not own the exclusive licenses for images in these two collections? ( see above for analysis )
2. If Getty USA sends a similar percentage of letters for these two collections in the USA, that would make a rather large group of letter recipients/ people who have paid up for images to which Getty owned no right to sue at all. If this were the case, would you not have some grounds for a class action suit for these two collections only?
In Israel, we indeed claim that Marot has no rights to sue at all, because it is Getty ( if at all ) who owns the exclusive license, and not Marot!
Regarding our lawsuit, I am the plaintiff, yet I did not pay.
This does raise a problem.
But those who paid signed secrecy clauses.
For now therefore, I am the plaintiff.
The class action law here allows the judge to add or switch plaintiffs if the suit meets all other criterion.
We explained this in our lawsuit, and only time will tell.
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I didn't mean to imply that comparisons were made.
However, if we are to say "Marot did this", and then ask "does Getty also do this?", then we have to make comparisons. :)
From your evidence, I think that it's safe to say that Getty has no exclusive agreements with DK or National Geographic, either.
I think that National Geographic holds onto its content for as long as the law allows.
It's been proven in court that Getty doesn't have exclusive agreements with most of its contributors.
I would imagine that Getty chose to take Advernet to court because Getty felt that they had the strongest legal standing against them.
That is, they went ahead with their strongest case. They lost. We can assume that any of their other potential cases were weaker than Getty vs Advernet at that time.
I'm no lawyer. But, logically, a case against Marot makes sense because they had absolutely no legal standing to take people to court.
Because innocent people had to defend themselves, they were damaged economically.
However, Getty does have agreements with its contributors, even if they aren't exclusive agreements.
Therefore, it's more difficult to prove that their extortion letter campaign is completely baseless, or that its efforts in court are completely without merit.
Now, they don't have enough legal standing to prevail in their cases against alleged infringers.
BUT, they may have enough legal standing that their pursuit of settlements (even through lawsuits) are not a breach of law, or unjust.
They probably have just enough standing that it's legal for them to have a court hear their arguments.
If a class action were filed against Getty, it's possible that they could pay some of their artists to join in the legal fight.
This could give them instant legal standing in regard to the images that those artists created.
It wouldn't be so clear-cut. Things could get very complicated.
I would think that those that paid settlements and signed confidentiality agreements would have difficulty finding other legal recourse at this point.
Those that maintained their innocence, didn't settle and were damaged economically by Getty's actions would be in the best position to file suit.
S.G.
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@Scraggy: Can't the courts cut through the secrecy clauses? Or does this mean, if the judge decides to switch the plaintiffs, then he is going to cut through the secrecy clauses?
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I don't think that the court system "switches" plaintiffs and defendants.
Separate lawsuit(s) would have to be filed.
Part of the court process is that each side must prove their case. Especially the plaintiff.
Logically, the plaintiff will lose if the "secrets" aren't divulged.
As a matter of process, people must "come clean" by proving their case, otherwise they'll lose.
Copyright is all based on written contracts, not so much verbal testimony.
So, everything is revealed rather quickly. If one reads the Getty vs Advernet case, all of this is very apparent.
S.G.
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I would think that those that paid settlements and signed confidentiality agreements would have difficulty finding other legal recourse at this point.
Those that maintained their innocence, didn't settle and were damaged economically by Getty's actions would be in the best position to file suit.
Well, group A suffered the clearest and most easily measured loss. Marot ( and probably Getty too ) know exactly who paid and how much.
Group B - paid Marot nothing. Therefore, their financial damage is much harder to measure.
As I say, I am the symbolic plaintiff, and have requested to represent groups A and B.
Can't the courts cut through the secrecy clauses? Or does this mean, if the judge decides to switch the plaintiffs, then he is going to cut through the secrecy clauses?
Yes, we certainly hope so. If the judge rules that all agreements can be nullified because they were based on a mis-representation of the facts ( that Marot had the right to sue, when in fact they didn't ), then the judge can allow the addition of a second plaintiff, or even allow me to continue representing groups A and B. After all, my role is purely symbolic.
Regarding the NG and DK collections, if Getty knew that they had no exclusive license, yet they nonetheless threatened people with court action, then all agreements would be based on a fraudulent claim. This would be similar to the case with Marot.
Retroactive involvement of the photographers wouldn't help. Their agreements are with DK and NG, not with Getty. They couldn't give a retroactive exclusive license to anyone.
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If I were King of the World, I would immediately revoke every confidentiality agreement ever made in every lawsuit ever filed and would open everything up 100% to the public. This would put a lot of lawyers and corporations out of business, and My World would then be a better place where people could live happily with much less fear of the quick buck artists and those who manipulate the system to take advantage of others.
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We're clearly not lawyers here, and it shows. lol.
I should clarify a couple of points, however:
The first is that a person or other entity can sue over practically anything. One needn't even have a "winning case".
The second is that one can sue even if there is no exclusive agreement between the artist and the retailer.
Thirdly "Getty" may in fact "register" content in its name, and come back for another go in cases such as MF vs Chaga for example.
A quote from Oscar: "MF could now properly register each and every picture individually (provided it has proper assignments from the photographers) and file a new lawsuit provided it's still within three years of the alleged infringement."
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/masterfile's-copyright-registration-method-held-invalid-by-california-court/
Do not think for a second that Getty couldn't generate enough legal standing to fend off most class-action lawsuits based on "standing to sue" alone.
Marot can't register squat, because they had no license agreements with the artists in question at all.
The fourth point is that "Getty" does have license agreements between itself and its artists. My understanding is that Marot is quite a different situation.
There's another possible problem with getting Getty into a class action.
By the time Getty takes one to court, you're damaged financially, and can prove it because you've "won", you've probably already had your attorney fees and expenses awarded to you.
You've been made "whole". How can one come back for another "go" at it?
The people that haven't been sued haven't been "damaged", and have no case against Getty.
I dislike Getty more than some of the regulars on here, and I'd like to see them stop what they are doing, or at least demand resonable settlements.
However, my personal opinion is that we need to separate the concepts of "standing to sue", and "a losing case".
There's a difference.
S.G.
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SG that is very well put and very good points, thank you.
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The fourth point is that "Getty" does have license agreements between itself and its artists. My understanding is that Marot is quite a different situation.
If Getty indeed has an "worldwide exclusive" license , then it would be logically and legally impossible for other companies to share the same license.
See Getty's contributor agreement - http://contributors.gettyimages.com/img/articles/downloads/2011%20contributor%20agreement%20v.4.0%20%28d%29%20sample-english.pdf
All Content submitted to Getty Images is on a Content exclusive basis. This means that Content submitted to Getty Images and any other content that is substantially the same (a “Similar”) may not be licensed to any third party
Furthermore, Marot has never even claimed that they have contracts of any kind with the photographers ( as the law here would demand in order for Marot to own an exclusive license).
If Getty owns the worldwide exclusive license, then Marot does not!
Marot claims that Getty somehow ( the law here doesn't allow it ) transferred exclusive rights to Marot, because Marot is a "distributor". I have not seen any document to this effect, and I also assume that Getty wouldn't endanger its own worldwide license and standing to sue in order to save Marot. Territorial exclusivity regarding the display of images on the Internet is also not possible.
There's another possible problem with getting Getty into a class action.
By the time Getty takes one to court, you're damaged financially
Here in Israel, my lawyer is not paid up front. If we win, the court awards him costs. In theory, costs can be awarded against me if we lose, but if a judge sees a good faith attempt to correct a public wrong, costs may not be awarded, and even if they are, they are likely to be symbolic.
Statistically, the chances of our case being accepted as a class action suit are not high. But it was my destiny to file this suit. Almost 100 people contacted me regarding the letters they had received from Marot. The psychological, economic and family pressures they were under were immense. Even charitable organizations for handicapped children have paid Marot Image! Someone had to try and stop this!
Ian
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According to the great fountain of knowledge Wikipedia, class action cases may be brought to purposely change behavior of a class of which the defendant is a member.
Still, Getty would fight it tooth and nail, especially now when they are looking to sell.
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I agree with Ian in that I think that he has a great case against Marot.
The fact that his lawyer is working on contingency also shows that he feels that he'll make money on this.
I also agree with Couch_Potato.
But again... it all comes back to the facts that Getty doesn't have enough legal standing to win lawsuits against most infringers.
Conversely, it's also my opinion that they do have the legal right to send demand letters and sue people.
If they had NO license agreements with their artists, it would be a different story; it would be a complete fraud.
These fact are quite difficult to overcome, I think.
S.G.
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It's clear that the class action in Israel is a very specific instance of the Getty Copyright Abuse Program. Marot overreached in its role as the enforcement agency, and I do think the case being made is good. Marot did not have the right to shake anyone down.
Getty's conduct is the US market has been different. They've hired enforcement agents who may or may not have standing to contact people with threatening letters. The letters themselves may be cause for a class action in the U.S.
The aggressive surveillance by PicScout could be a cause for a class action suit, perhaps in one state. In California, private investigators have to register with the state to operate as such. Is PicScout not acting as a robotic private investigator? Are they registered in California? Are they collecting "evidence" illegally and does the "evidence" have any validity in court?
There's also the issue of "claim vs. debt" in Getty's letters. Their approach is to cause intimidation with legal threats and then treat the matter as a debt without having received an award from a court or arbitrator. The law is not in their hands like that.
It could be that REAL extortion could be argued. They're basically using the courts to bully small businesses and individuals. Here's the legal definition of extortion:
The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
This is how Getty would probably try to defend themselves from being charged with extortion:
A person who acts under a claim of right (an honest belief that he or she has a right to the money or property taken) may allege this factor as an Affirmative Defense to an extortion charge. What constitutes a valid claim of right defense may vary from one jurisdiction to another. For example, M, a department store manager, accuses C, a customer, of stealing certain merchandise. M threatens to have C arrested for Larceny unless C compensates M for the full value of the item. In some jurisdictions it is only necessary for M to prove that he or she had an honest belief that C took the merchandise in order for M to avoid an extortion conviction. Other jurisdictions apply a stricter test, under which M's belief must be based upon circumstances that would cause a reasonable person to believe that C took the item. Another, more stringent, test requires that C in fact owe the money to M. Finally, some states entirely reject the claim of right defense on the theory that M's threat is an improper means of collecting a debt.
Source: http://legal-dictionary.thefreedictionary.com/extortion
I'm not a lawyer, I went to art school. Just throwing some ideas out there to help the brainstorming process.
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Isn't Marot a completely different company from Getty?
I don't get it. Am I misunderstanding something? ;)
S.G.
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Marot is a different company.
I think the point made is that Marot tried to collect on an image that was both available through Getty and directly through the copyright holder online and Scraggy was spitballing about the possibility of a class action suit against Getty on the basis they may also be scaring people into paying for images they know they do not have the exclusive rights for.
I know the point has been made that Getty has questionable right to collect anyway for any infringements.
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Couch Potato is absolutely right.
If Getty is collecting payments regarding images to which it knows full well that it does not own the exclusive license ( most specifically the National Geographic and Dorling Kindersley collections), then do you, in the USA, have a case against them?
I am not talking about the other collections at all. I am not talking about the Advernet verdict. I am referring specifically to two collections ( that made up close to 5% of the images contained in Marot's letters in Israel ) to which it seems that Getty could not own an exclusive license. National Geographic and Dorling Kindersley ( both very large and serious companies ) continue to sell rights managed licenses for the same images to which Marot claims to own the right to sue.
My question to Oscar. Does Getty send demand letters for these two collections in the USA? If not, everything I have written in irrelevant.
By the way, no one picked up on the different pricing between Getty, NG and DK books for the exact same images.
Ian
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Because Getty actually has licenses with their artist/photographers, they are not breaking any laws by pursuing settlements.
This sort of thing is NOT contingent on whether or not Getty has exclusive licenses with its artist/photographers.
In fact, my understanding is that even if their licences are non-exclusive, they still may pursue the actual retail price of the images infringed upon (but not statutory damages).
So they do in fact have some legal grounds for what they're doing.
Oscar touched on this in the past:
"If there was valid way to bring a class action for this conduct, I would have done so years ago or one of these firms, who do nothing but bring consumer class actions. Barratry requires the litigant to have no claim - these companies do have a right to protect these images. It is not harassment to try and collect for an infringement; it is their methods and demand amounts that are just overbearing and disturbing. But as always I am open to suggestions so please tell me what would the basis be for a class action; what is the illegal conduct they are engaging in that gives rise to a claim? I will be the first to sign on to bring the case myself!"
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/oscar-to-ask-attorney-gen-of-ny-to-investigate-masterfile-evidence-available!/
I think that we're making too much of a comparison between Marot and Getty.
Again, I don't think that Marot had any valid claims of infringement.
But, Getty does have licences with its people, which does give it some legality; they can come after you for a settlement (even if a court would only grant them the retail price).
That's the law. It kills off the argument that a case could be built upon this.
S.G.
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S.G. I disagree, and will explain why.
Let's assume that a photographer has only given a non exclusive license to National Geographic. The photographer himself may therefore continue to sell the image ( which is not the case with an exclusive license ) , and ONLY the photographer can sue for the violation of his copyright. In turn, NG has allowed Getty to sell the same image. Both Getty and NG therefore have a non exclusive license. Neither has the right under American law to sue for copyright violation.
What if Getty's lawyers then turn to people and state - " We have the right to sue you under American copyright law, and we will indeed do so if you do not pay us the following amount", and people rush to pay and put the threat behind them.
The problem is that in the above circumstances, Getty would not have the right to sue. Moreover, the photographer could turn around and sue himself! The claim, and corresponding threat would be a complete mis representation of the facts.
Consumer laws for one would not sanction such actions.
If you don't own the right to sue, how could it be legal to extort payment from someone by claiming that you do?
Getty, under the above circumstances would be fraudulently inducing people to pay them.
Again, I am only talking about two specific collections, for which ( if my analysis is correct - see above ) Getty does not have an exclusive license, and therefore has no right to sue.
Ian
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It is my understanding:
If Getty has a non-exclusive license and the infringer settles with GI, the photographer (=copyright holder and the one who granted the non-exclusive license to GI) would still have the right to go after the infringer and sue him for the same infringement.
So it is my understanding that GI has no right to sue for the infringement (having a non-exclusive license)
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Obviously, exclusive licensees may sue, and are entitled to damages and statutory damages. We agree on that.
I believe that you are incorrect that only the exclusive licensee has the "right to sue".
I contend that non-exclusive licensee's may also sue, but aren't entitled to statutory damages (attorney's fees, etc.) if they win; only actual damages.
This is our disagreement.
Now, I think that you are probably correct in that only an actual owner of the image may transfer (some or all) of his/her rights to other licensees. We agree on this?
In such a case, there can actually be many non-exclusive licensees in addition to the actual owner.
One may have Getty, Corbis and Masterfile sell their image, for example.
Obviously, there can't be a "mix" of an exclusive licensee and other non-exclusive licensees. Otherwise, it's not "exclusive" to anyone, right?
I'm going to hit the US law books and post some further info.
S.G.
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Khan, I think that you're incorrect.
Getty represents the photographer in its contracts.
Part of that contract stipulates that Getty may collect on the artist's behalf, and the artist will be paid accordingly.
Therefore, it would be difficult for the artist to go to court and sue in order to "double-dip".
S.G.
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S.G - Please remember that I am only talking about two specific collections.
Regarding these two collections, if I am not mistaken, Getty has no contracts with the photographers. The photographers may have never heard of Getty! Their contracts were with DK and NG. The artist would not therefore be "double dipping".
The letter recipient would have paid the wrong person. That wouldn't be the photographer's problem!
I contend that non-exclusive licensee's may also sue, but aren't entitled to statutory damages (attorney's fees, etc.) if they win; only actual damages.
This couldn't be the case. It would mean that you could face multiple lawsuits over copying one image!
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OK.
Lets go a little bit further : If Getty, Corbis and Masterfile have a non-exclusive license (for the same picture) and all three send a demand letter because they represent the photographer ? Would this be possible ? Do we have a "triple dip" ;D ?
Khan
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Yes, I agree Scraggy!! If Getty had NO contracts with the actual owner, then this would be a clear fraud.
Khan, I still think that each non-exclusive licensee may attempt to collect damages.
But, don't try to give these artists any "ideas", ok? ;D
S.G.
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Khan, I still think that each non-exclusive licensee may attempt to collect damages.
I don't think so! If this were correct, you could face hundreds of lawsuits over the same image!
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Ok, here we go:
§ 201 . Ownership of copyright
...
(d) Transfer of Ownership. —
...
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.
http://www.copyright.gov/title17/92chap2.html
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Readers here may recall that Getty has the above right to litigate on behalf of the artist written in its contracts.
In theory, they may only successfully litigate to the extent that they could receive the "retail price" of the image infringed upon.
That is because of the following. The artist has granted Getty a non-exclusive license to sell the image and included the right for Getty to sue.
HOWEVER, Getty doesn't normally register their images in their own name, and are therefore NOT entitled to statutory damages in addition to actual damages (ie the retail price).
Folks should not confuse all of this with the Righthaven debacle.
In that case, Stephens Media ONLY transferred the "right to sue" and nothing else.
This has no legal standing at all.
...and there you have it.
Anyway, I think that at this point, I'd like to see the people posting on here quote actual sections of law.
I don't think that the forum is well served by "opinion" after a certain point, unless you're a lawyer and can prove such.
Because we could go on for days with opinions. Quote law if you can.
S.G.
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The artist has granted Getty a non-exclusive license to sell the image and included the right for Getty to sue.
You seem to have lost your way. The owner of a non exclusive license would not have the right to sue.
You also continue to ignore the fact that I am only talking about two collections.
I am not raising any issues with any of their other collections. You can read the Advernet verdict for that.
Here is a short summary of the various licenses, as explained by Harvard University’s Berkman Center for Internet & Society
http://www.citmedialaw.org/legal-guide/understanding-difference-between-transfer-and-license
Copyright law treats an exclusive license like a transfer. Therefore, the recipient of an exclusive license to a right or right(s) may:
exercise the right or rights licensed;
authorize others to exercise the right or rights licensed via a transfer or license; and
sue for copyright infringement of the licensed right(s).
The recipient of a non-exclusive license may exercise the right or rights licensed, but MAY NOT:
authorize others to exercise the right or rights licensed via transfer or license without permission of the copyright owner; and
sue for copyright infringement of the licensed right(s).
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Ok. Good, meaty discussion here!!
To be fair, I did not ignore the fact that you were speaking of only two particular collections.
I agreed that you are indeed correct that Getty is committing fraud if what you claim is true.
The topic of this discussion is "Possible reasons for class action suit against Getty in the USA".
Therefore, we came back around to the general discussion of whether or not a non-exclusive licensee has a right to sue.
I think that the answer lies in between both of our assertions as follows from the Silvers vs. Sony Pictures and Eden Toys, Inc. v. Florelee Undergarment Co. cases:
"Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."
http://www.techdirt.com/articles/20110614/17302814695/judge-rules-that-righthaven-lawsuit-was-sham-threatens-sanctions.shtml
I say that you are correct in that a simple non-exclusive agreement doesn't provide the licensee the right to sue.
UNLESS one of the exclusive rights in Section 106 is also transferred AS WELL. I think that I am correct in this area.
Referring to the above "One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright" (referring to the exclusive rights in Section 106).
It's simply my contention that many of Getty's contracts do in fact have one or more of the Section 106 Exclusive rights transferred, which in turn makes the right to sue a legal possibility.
We were both correct, technically speaking. Perhaps, we can live with that?
Again, I think that you are right about the two collections that you mentioned, provided that Getty has none of the Section 106 exclusive rights in its contract(s).
To answer Khan's question of why there aren't tons of lawsuits being filed by non-exclusive licensees...
that's because they could only get the "retail price" in court; often 2 to 200 dollars. But, no legal fees.
Those lawsuits aren't worth it. Hence very few lawsuits.
Very good discussion, as usual.
S.G.
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I think we pretty much agree.
only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement.
I wouldn't argue with a judge!
I say that you are correct in that a simple non-exclusive agreement doesn't provide the licensee the right to sue.
I agree with this!
It's simply my contention that many of Getty's contracts do in fact have one or more of the Section 106 Exclusive rights transferred, which in turn makes the right to sue a legal possibility.
Well, the content of the Getty contributor agreement would indeed suggest the transfer of an exclusive license, and therefore right to sue. The judge in the Advernet verdict thought otherwise. After all, these "contracts" are not signed by either party, and don't contain the details of any specific images.
But as I say, I don't believe that Getty has any exclusive licenses for the two specific collections mentioned above, because of the reasons mentioned.
To answer Khan's question of why there aren't tons of lawsuits being filed by non-exclusive licensees...
that's because they could only get the "retail price" in court; often 2 to 200 dollars. But, no legal fees.
Those lawsuits aren't worth it. Hence very few lawsuits.
Sorry, I don't agree with this. Can you imagine what mayhem there would be if owners of non-exclusive licenses could sue? Owners of non exclusive licenses dont have the right to sue. That didn't stop Marot Images however!
Ian
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Well, we're all entitled to our opinions.
You can see that the other regulars here can't be bothered even getting into the "class action against Getty" thing.
Here's how I see these these discussions at this point:
(http://img841.imageshack.us/img841/639/elipostingmemefin.jpg)
I don't like Getty, either. If you want to sue Getty, go for it.
But, until somebody does it, and wins, you're talking out your ass.
S.G.
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Scraggy, I think these discussions are very good. There are lots of angles from which to come at this. As long as we keep this topic on the table and keep attacking it from different angles, I am certain that some day a smart lawyer might see a winning line and agree to take Getty on in a class action suit.
Without these discussions, that possibility becomes more remote. I too, wonder what Oscar thinks of your angle.
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Stinger, I've already re-posted what Oscar said about a Getty class-action.
People can use the search function and find many posts that he has made regarding this. But people are really, really lazy.
I don't think that Oscar has much more to say than he's already said.
Discussions have value, sure. However, the laws are the most important thing. That's all that matters in the end. Were talking about court here.
When the discussion begins going in a circular motion, and noob posters begin saying "yeah, but we're not talking about that" when we were speaking of that particular topic, or "I was referring to something else". the discussion begins to fall apart.
You can't "win" a discussion by changing the subject.
Scraggy doesn't have the foggiest clue of what's in Getty's contracts with National Geographic. He's talking out his ass.
Furthermore, he doesn't understand the fine nuances of "exclusive" and "non-exclusive", even when it's been posted here for him to read.
It keeps coming back to "Getty has no right to sue"... but Getty's gone to court haven't they? They have the right to sue like anyone else.
They have trouble prevailing in court, but that's completely different than not having the "right to sue".
He needs to read a book or two. I'm done with him, and this discussion.
S.G.
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The bottom line to all this is that in the U.S., unless you have a copy of Getty's agreement with the photographer, you don't really know WHAT rights Getty has. Even some photographer from National Geographic claiming that they never transferred their rights to Getty doesn't mean much. They could have been on a work-for-hire gig with NatGeo, and the rights were never theirs to transfer.
This is why it is essential for anyone being pursued for "infringement" should insist on a copy of the agreement with the original rights-holder. This is not trying to "out lawyer" the lawyers. This is simply stating, "prove to me you hold these rights." In the US this is met with, "we only share this information should the case go forward." The correct response to this is a shrug and and "so be it."
As much as we'd all love to see a class action suit go forward and be successful in the U.S., their just isn't enough meat on that bone yet. The differences in the situation in Israel seem small, but they are pronounced enough to make all the difference. (Primarily it is that the company threatening people has no standing at all.) Go find 100s on demand letters that were paid for images that Getty did not hold any rights to. THEN you have a class action in the U.S.
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Go find 100s on demand letters that were paid for images that Getty did not hold any rights to. THEN you have a class action in the U.S.
I haven't seen Getty's contracts with DK or NG, but these two companies continue to sell the same rights managed images as Getty, thus suggesting Getty does not therefore own an exclusive license for these specific images.
Only Oscar would know if Getty had sent 100 letters with images from these collections. Of the close to 100 letters I received here in Israel, I now have 7 images ( 5 from DK ) from the above two collections.
By the way, when I say "right to sue", I mean "standing to sue". Maybe that has caused some mis-understandings here. Sorry.....I am not American!
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Getty can still sue in the US even if the agreement is "non-exclusive", so long as there's one of the Section 106 stipulations in the agreement.
"Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."
Eden Toys, Inc. v. Florelee Undergarment Co.
Let me translate this for you, so that you can understand it better:
So long as one of the "exclusive rights" in Section 106 are included in the "assignment" (meaning the non-exclusive agreement), then the assignee (holder of the non-exclusive agreement) has the right to sue.
I've posted actual case law precident for you. You still cannot seem to grasp it, and your only argument seems to be "I disagree with US case law".
You are AGAIN assuming that when a plaintiff loses a case, they never had the right to sue in the first place. That is quite incorrect.
You brought up Getty vs. Advernet. Getty lost on the standing to collect monies. But, they didn't lose on the "right to sue" argument.
I don't think that the "right to sue" was ever brought up. Additionally, the "right to sue" is the same as "standing to sue".
Furthermore, Getty had nothing to do with Marots' actions. So, this changes nothing in case of Getty.
S.G.
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Well, I happen to disagree with SoylentGreen on this one. I can TOTALLY be bothered to talk about class action against Getty or any other troll who has abused tort to EXtort for cash. The question is simply one of strategy.
Of course the local expert on this matter would be Oscar. The "standing to sue" angle may be too esoteric or difficult to attempt in a US court. I would suggest we put that aside as a possible strategy for the moment. There are other angles in the US.
As I mentioned before, I'm intrigued by the possibility that their methods could be called into question, particularly PicScout's aggressive "private investigation" of people's servers without consent and very much ignoring warnings to stay out of the server.
Troll/Wallpaper Purveyor Vincent Tylor likes to say that you're still guilty of auto theft even if the doors were open and the keys were in the ignition. Well, you could be committing an illegal search without a warrant even if the directory was not password protected. At least I would think there's some comparison between the two scenarios.
I know this has been discussed here before, but really not too deeply. Saying "it can't happen" is not a deal-closer argument. I'm of the mind that the real situation is that "it hasn't happened YET." Thus, we can think about how to make this happen.
If we take out PicScout, we emasculate not only Getty but all their client base in the U.S. Other countries may have different legal frameworks concerning electronic surveillance, but our goal is to succeed in the U.S.
The rest of the world can follow after. Any thoughts? Here's some background on electronic surveillance and the law in the U.S.:
http://www.yale.edu/ynhti/curriculum/units/1983/4/83.04.07.x.html
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Moe, you mentioned that you disagree with me. However, I don't see any logic in your "disagreement".
I never said that a class action wasn't plausible. I'm simply saying that the scenario that Scraggy suggests is flawed.
I was talking about exclusive/non-exclusive agreements. But, you've brought up PicScout instead.
Well, so be it.
Moe, your reasoning is incorrect. In fact, anything that's scanned by PicScout is in fact "public".
Nobody has any actual evidence that PicScout has hacked into anyone's servers that I have seen, and I've searched for it.
So, I don't think that you'd have a "case" in this regard.
HOWEVER, if you can post actual evidence of hacking (not just your opinion), I might be inclined to agree with you.
I'd like to see you take your "opinion" into a courtroom without any proof of hacked passwords, etc.
Again, Oscar has commented many times on these issues. One need only do a cursory search for them.
None of these topics are new in any fashion.
S.G.
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Happy to be corrected if wrong but I thought section 106 rights still had an element of exclusivity when assigned but instead of assigning exclusivity in it's entirety you were instead transferring exclusivity to distribute in a particular way only.
The assignee would be able to claim for an infringement of their assigned right only.
Could be wrong because legalese is bloody confusing :-$
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Let me just chime in a bit here.
1. I am a glazed donut on most of the important details so I won't speak to the very detailed issues.
2. I am NOT a "save the world" kind of guy. I am more of a "help you save yourself if you do some work" kind of guy.
3. I know my limitations and my interests. Class-action is not one of my big interest as it relates to copyright extortions.
4. Class-action is a perfectly valid topic of discussion but a few of us don't care enough about it to spend time on it. I am one of those people.
5. Class-action requires someone to want to actually step up and step out publicly. Right now, there is only a handful willing to do so and most of those people are already part of ELI. Out of that group, I see exactly zero people who have expressed in being that figurehead client.
6. Even if a figurehead client is found, who will front the legal work and expenses? Most want a a class-action law firm to do it on contingency. Fine. We have had a few stop by and talk to Oscar and none have ever come back. "Someone" needs to find this class-action law firm willing to do this.
7. If I cared enough, I probably would take the lead and shake something out. I am good at these things but it's obvious I don't care enough and not terribly interested. I have other selfish priorities.
8. No consensus is required to take meaningful action and make good stuff happen. How do I know this? Personal experience. I've taken on all kinds of projects without asking for anyone's approval or proof I was right. I just went and did it. ELI is one of those successful projects I believed in without any good rationale, tools, or roadmap. I believed I could figure it out along the way and I have.
9. I commend Scraggy for coming to this U.S. based forum and share his story and views. He seems to be taking meaningful action regardless of agreement or disagreement. I don't care for putting time into class-action but can I still respect Scraggy's efforts? Absolutely, yes and he can be at the forefront. I think he has done tremendous things so far. But am I terribly well-informed? No, but from what I can see, he gets my respect.
10. It's clear that the ELI community prefers consensus to get "everyone" onboard especially the "regulars". But consensus is not required to get along as long as we agree on the larger issues. I think we do. "Copyright extortion is bad. Boo. Hiss. Spankings needed." We all agree on this.
11. Not every effort needs a legal argument to launch a fight. If you ask a lawyer: the legal argument is EVERYTHING. To a non-lawyer / marketing / go get-em type like me: Legal argument is simply a tool and talking point to be used to your advantage. It is NOT my primary compass. My brain is. That is why I choose to speed 5mph over the speed limit with no guilt. Or own a radar detector even if some states say it is illegal.
12. I would like to remind everyone that supports me and ELI that the exclusive legal argument will never absolutely be the deciding factor of what goes. ELI works on a much larger context. We get results, whatever it takes. If we use can legal system and legal arguments, wonderful. If that doesn't work (which we have seen frequently), we take "alternative measures" of making change. Do I need to make an extensive list of names and incidents that ELI has directly impacted and beat back without ever filing a single legal document?
So, feel free to continue on the discussion freely but just realize we may have to agree to disagree and that a consensus may not be possible. But remember this, we can all agree "Copyright extortion: Bad. Fight and Spank back: Good." Everyone gets to choose their favorite weapon of choice.
My favorite weapon of choice? Writing open and public snarky letters similar to those I have done with Jennifer Sherrouse, Linda Ellis, and Julie Stewart. They seem to work very well, fun to do, and I don't have to hire a lawyer. SG likes his cartoons and memes. Nice weapons there too. Robert and his Google-digging? Like that too. Oscar and his legal insights for OUR side? Love that too. Scraggy? He likes class-action. More power to him. Don't beat him up for it. :-)
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Try as I might to stay away from this debate, now that our cult leader has spoken I feel obligated to chime in as an ELI Defense Team Member ( I love my title and benefits BTW)
While I find this topic interesting I tend to side with MC, we're just not to that point yet, not to mention it is very complicated law and I'm not a lawyer, nor do i want to be. I'm not going to spend my time attempting to decipher all of the legal aspects at this time..Not to say that if a class action became something viable to present I wouldn't , because at that time i would more than likely be willing to learn the ropes as it were.
Yes sometimes we need to agree to disagree and let it go at that, part of the beauty that is ELI is the different opinions, angels and thought processes. As Matthew stated "Copyright extortion: Bad. Fight and Spank back: Good."
Every single one of us has a place in ELI in terms of fighting back, and I have respect for every single person that contributes....Well except for Uncle Glen Carner from Hawaiian Art Network.
and now my admission of guilt...see I just tied Glen Carner who works with Vincent K Tylor from Hawaiian Art Network and Copyright Services International to a thread dealing with a Class Action Lawsuit.
Another FREE google entry! 8)
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Matt speaks well.
However, I disagree a bit with a couple of points.
Firstly, we ARE talking about a LEGAL EFFORT in COURT. So, we simply cannot take the actual legal issues out of the discussion.
Secondly, while it's fine to discuss a class action, what's being lost here is that one must have a WINNING CASE. I don't see this.
Matt speaks of the marketing, and non-legal efforts, and he has a good point.
But, starting an actual legal case is different. Whether we like it or not, it's about the laws and the money. Not, SEO or marketing.
A reality check is in order for sure.
Additonally, it's a bit odd to imply that the fight isn't about a "class action" or "legal cases".
But, to then discuss it anyway, and brush off any unpopular opinion even if it's backed up by concrete facts.
If my reputation or money was at stake, I'd fight much harder than this, of course. So, some are actually getting off easy.
However, I'm basically done wasting my breath.
If PicScout is "hacking" everyone, and people believe that, so be it. But I don't.
If people can start a class action with hackneyed ideas, more power to you.
You're going to get eaten alive.
S.G.
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I wish Ian all the best with his class action suit in Israel.
With that said, I appreciate SG's approach and agree with his bottom line thinking that ultimately all about what will win and what will lose in a court of law.
I figure Oscar would be all over a class action lawsuit the same way I'm all over free Oreos and milk if he thought he could build a winning case. And, again, as SG has pointed out, Oscar has repeatedly made it clear that he didn't see a way for a winning class action in the U.S.
For me, at least at this point, the best way to fight these folks is to poke fun at them when I have the time, as well as to support those just getting started with the process by sharing what I've learned from the ELI team, the regular forum posters, and from my own experience dealing with the trolls for a year now.
Though I don't know that I qualify for "forum regular" status, I think of myself as a "regular" so I'll just click the "Post" button below to feel that I've done my duty to drop in my two cents worth. :)
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I think there was a passing comment how the "regulars" were not posting on this issue. So I decided to chime in with a few important points. We all gravitate towards different topics of interest.
I am not trying to minimize the legal discussion issue is important or significant but that is not my forte' and not my battlefront. This is Oscar's battlefront. That is why we are business partners on ELI. If and when Oscar decides to chime in, he will.
The point of a community is so that we can further the mission on different fronts. People should not be offended if I or Oscar don't actively push an agenda or course of action.
We have to remember that most attorneys have specialties. Oscar is NOT a class-action attorney and he has said so. There may actually be a case somewhere but where is our figurehead client to begin with. Who will that be? And do we have a class-action law firm willing to take it on? Who will do the search?
I have learned from personal experience if you look hard enough, you will find a lawyer that will see things your way or come up with an angle to help your cause. So with all the talk in the last few years about class actions, the fact is, it's been just talk. Who is going to step up and DO SOMETHING?
Scraggy appears to have done "something" meaningful and we get to learn from it.
No one is necessarily asking my advice but this is the strategy I would use.
Find a "good" figurehead client that someone can rally around and tell a good true story. Someone that is somewhat media friendly or at least receptive. That client has to be "shopped around" to the various class-action law firms with some "incentives" that the lawyers can and will make money and get high exposure of doing the case.
From there, a story and legal argument can be built around the client. I know this is a bit contrary to how some might think but that is how I think and work.
It is entirely coincidental that Robert and I have similar points of view on the issue which is why we are not terribly active on this. But don't take that as an affront on anyone.
We can't be "leaders" or "experts" on everything. We can't spearhead every effort either. I do what I can with what limited time I have. I have already provided full disclosure of my role on ELI since the beginning of 2012.
For what it's worth, short term, Robert, Oscar, and I are working on growing the "ELI Factor". It is our next "tool" and "platform" to expand the ELI reach and influence. It is important on so many levels that I cannot get into here.
But other community members can continue on. If you guys want to pursue class-action, great but I highly recommend making it a more tangible endeavor than a legal discussion.
I am happy to say we have a good number of regulars nowadays and I love you guys and gals! I almost need a scorecard to keep up with all of you and your various talents and personalities! :-)
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Good post Matt.
It's unfortunate that Oscar doesn't have more time to post here.
But, I realize that's not his job and he's busy.
There's a problem with shying away from "legal issues" and what I call "meaningful discussion" (it's the opposite of bullshit btw).
The problem is that your site will only attract the "bitch and moan" crowd, the "got letter wut do?" crowd and the clueless "somebody file a class action" crowd.
I know that you wish to run this more like a business, so that it can be self-sustaining. But, the type of people that I've listed above are less likely to be "paying customers", in my opinion.
Personally, I think that the more B.S. postings that you have on here, the more it erodes ELI's reputation.
Now, I'm not saying that you should somehow stop people from posting, or that my "yardstick" of what counts as B.S. should be the litmus test.
But, you can combat the garbage by actively encouraging better contributors to come here.
I do not feel that you are actively encouraging meaningful legal discussion.
If that's not a priority for you, that's your business. But, you miss out on that demographic. People won't come here for crap.
Additionally, the intelligent people will depart, and you're left with the class-action/PicScout conspiracy herp-a-derp demographic.
You actually want that as your group of core contributors?
But, yeah. I don't blame you for not wanting to get into the whole "class action" discussion again.
S.G.
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S.G., just wanted to clarify a couple of things. My disagreement was with your statement that this group can not be bothered to talk about class action. That's not true in my case, and I will again speak for myself: I can totally be bothered to talk about class actions.
Also, I did not state that PicScout has ever been accused of hacking. My contention is simply that there may be ways to make it more difficult for them to operate. Such as requiring them to register as investigators and report to oversight agencies on their activities. How about letting us know how much of our server they crawl and how often.
I stated that I could see your point that Scraggy's argument may not work in the US and proposed we discuss other possibilities, such as PicScout's legal standing. Maybe you think this angle is also flawed and I'd be the first to admit I'm not a legal expert. From what I understand neither of us went to law school.
Well, PicScout's legality IS being challenged by people who went to law school. I posted on that topic but the post is in the forum that deals with bitTorrents and porn trolls so maybe you missed it. It may have some implications for image trolls as well, which is why I posted it on this forum originally.
So what was new about that? The claim that PicScout can not operate in California without being registered as a private investigator. I believe that's a new twist in the discussion of PicScout's legal standing. That case has not been heard, we'll see what happens to that.
There is plenty of legal activity with regards to electronic surveillance and its implications in the US. The law can and does change with the times and perhaps it's not a bad time to revisit the topic. Windows may have opened while we weren't paying attention.
I'd also like to clarify that I'm not stuck on that issue. I see it as a remote possibility and I do understand the huge effort it would take to launch a class action, especially one based on constitutional issues and civil rights. If indeed the legality or validity of PicScout is the wrong angle, then perhaps we can move on to discussing yet another possible strategy.
Matt's public relations blitz method is certainly effective on a troll-by-troll basis and is certainly a lot more fun than class actions and extensive legal research. Yet the legal strategy could result in permanent policy change would go a long way towards exterminating future generations of trolls. We certainly don't want the current generation to go forth and multiply like HAN/VKT wallpaper, do we?
I bet you agree with me on that last point!
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This post is DIRECTLY addressing SG's concerns.
I am NOT shying away from legal issues. If I did, I would never have found a "legal partner" in Oscar. However, he gets here when he can. What am I supposed to do? Fire Oscar and find another attorney to post here more frequently for free? Not likely.
I can get into the legal issues and have frequently done so in the past if people have followed my ELI work over the years. But I have to be selective. And If someone discusses something that I absolutely disagree with or feel someone is incorrect, I have no problems about (and frequently do) speak up.
One challenge with us non-lawyers discussing legal issues is that we are NOT recognized in the court system unless we represent ourselves? How many people are going to do that? Even if we are willing to hire a lawyer, how many people are going to be proactive enough to study up to help guide the lawyer? I have done so but I think I am in the minority. Most people entirely rely on lawyers.
We now deal with attorneys who can't even agree amongst themselves! Go look at the Getty vs. Advernet, Corbis vs. Starr, and Masterfile vs. Chaga cases. Those are some smart (and legally recognized) lawyers going at each other who truly believe in their respective sides. I win a lot on my own legal and other business confliect issues and so does Oscar in his own practice. But we both know there is a LOT of uncertainty putting your fate into the court system. Should we be afraid to do so? No. But it is expensive, uncertain, slow, and energy-draining. It also plays to "other side". So many people want to use that battleground for conflict resolution. That should absolutely the LAST place for conflict resolution.
I know some of us here want to make some permanent changes. Some want new legislation, new rules, business practices, etc. However, the core ELI audience are individuals, hobbyists, entrepreneurs, bloggers, web developers, etc. wants solutions NOW, not these sweeping regulatory or legal changes years from now.
Most don't care about the legal issues even AFTER getting the extortion letter. So, it has been my job to simplify the learning curve and deliver simple solutions in a quick and easy way. And even if they did, then what? Do I suggest people to lawyer up or try to outlawyer the opposing lawyers? That is expensive and plays to the other side. It is what they count on (among other subtle factors).
Without taking anything away from Oscar's legal contribution, a good portion of what ELI does to help people is to NOT bog them down with legal issues. I know that might rub you the wrong way philosophically but I am very pragmatic.
The ELI Support call is a 30-minute crash course and distillation of EVERYTHING I know and have studied for the last 4 years. It isn't as easy as it sounds to know what to hit and target within such a short-time frame.
The whole issue of class-action is so far off the track of the day-to-day solutions than most new people want. I have to dumb everything down and I have to focus on the most essential legal issues they need to know. I am in the media and publishing business and the less informed and less backbone people is where the money comes from.
That is not to diminish the regulars and old-timers. You guys provide a ton of content, advanced discussion, ideas, inspiration, and old-fashioned help to new people coming onboard.
Another fact is all the education in the world and advanced legal theory is entirely lost with so many people because they have no spine or have zero legal experience to be able to digest it or integrate into something useful into their reality.
I am not discouraging good legal discussion. But quite frankly, I have limited time and mental energy. I have to direct them to efforts I feel have the largest impact. And fortunately/unfortunately, at this moment in history of extortion letters, making the largest impact does not require these advanced legal discussions.
Certainly, I don't want the forums to be a free-for-all and people recklessly spouting off at the mouth. But to the degree the community can, we self-patrol. But I don't want to patrol so hard that new ideas and concepts are squashed. I have gotten and implemented so many little ideas that people offer up even in passing. Some discussions may be off-base and a bit kooky but we can't get so heavy-handed to make people feel like they have to be law students to jump into the discussion. We have to exercise some degree of tolerance. Sometimes we nudge gently, sometimes we hit people between the eyes. It all depends on what is being said and the context.
Believe me, I absolutely cringe at the posts "Got letter, what now?" but it is part of it. Everyone is very quick to say nowadays, "go do more forum reading". If people won't do more reading, there are paid options which DO help support ELI. Those "new" people help subsidize the time I spend writing this long response that will probably generate me no direct revenue.
Of course, I support and encourage accurate legal discussions. But don't forget that even the attorneys can't agree amongst themselves. It isn't a matter of credentials or lack of schooling. What chance do we have here that we will agree on everything?
I agree with the statement that there is a demographic that wants and need the advanced discussions. But that is a very small segment. The lion's share of ELI's current financial model is helping those that are unable or unwilling to self-represent. They need and want the help.
The ELI Factor hopefully will grow large enough to earn some sponsorships or advertising. At the very least, it will expand our SEO presence, it leads us to expanded networking, and other business opportunities.
It is a bit of a balancing act to keep the "regulars" and "old-timers" interested. Oscar and I offer ourselves as part of the ELI community. We invite people into the "inner circle" for those that might be interested. There is a small level of camaraderie, friendship, recognition, exposure, self-promotion, etc. for those who feel it is "worth it." I try to allow every "regular" to spread their wings in a way they want to.
If what I am doing is not enough, then there it is. If the forums ever degrade and degenerate to an unacceptable level and no one wants to help Oscar and I, then we simply lock down the forums and no one posts anymore. We let the existing database forum stand by itself and stop all the incoming dribble.
I do not yet feel we have degraded to dribble. But I do have a contingency plan. The forum becomes a stagnant database of information with a huge Google presence. And ELI becomes a big digital billboard where we funnel the people who need help to paid services. Not very inspiring but I am confident it would work.
I know my answer may not be terribly inspiring but that is how it stands now. Maybe one day in the future, Oscar and I won't have our businesses or time allocation issues to worry about. But for now, it is a matter of priorities.
If someone wants to take on the job to spearhead and enhancing the "quality of legal discussions", I am open to working and appointing someone qualified to do so. The current ELI volunteer roster is Robert, Jerry, Oscar, and me. Robert doesn't seem to want that job. Jerry seems happy where he is at. I believe Jerry does enhance the legal discussions but will he lead them? We have to ask him. Oscar is qualified but time is too scarce for him. I cannot "live" in the legal discussions arena for reasons I have already discussed.
I hope this explains why I don't devote my energies to the class-action effort. I got more than enough on my plate than to focus on that. But I don't let that stop others from pursuing it. That is why we have the forums to let those who are interested connect up.
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S.G.
I agree with you that having too many discussions of little relevance of interest devalues a forum. I'm sure we've all been on one but I think you're being a little harsh in this case.
I know Class Action Suits have been discussed but from what I've seen on many forums they've been along the lines of "Let's start a class action suit for this extortion" etc without any meaningful starting point.
In this case Scraggy asked a specific question regarding two collections from which Getty distributes images. He did this on the basis that he himself has started a class action lawsuit and wanted to discuss the particular merits of that in the USA.
I understand his Class Action Lawsuit is relating to a different company but within that he is also arguing that some of the images tried to collect on in Getty's name weren't even exclusively licenced to Getty (or so he believes).
I disagree that asking a specific question on a topic that may or may not have been discussed before devalues the forum.
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I'm really looking to moving on here, and not have anybody's panties in a knot, we're all on the same team!
So I will cut to the chase and answer Scraggy's questions..
"Approximately, 5% of the images involved the "Dorling Kindersley" or "National Geographic" collections.
Until you mentioned these collections, I have NEVER even heard of them.
How many people in the USA have paid Getty a settlement for images from these two collections?
None that we had heard of.
Oscar may have a statistical sample of letters on which to base an estimate?
He's a Lawyer not a statistician!
If it is a statistically significant number, is this a possible class action suit?
Probably not at this time
Are there other collections similar in nature to these two?
They have many collections, but i'm not researching it.
"My main question: Is Getty also sending demand letters in the USA for the two collections mentioned above?
Not to my knowledge
If so, wouldn’t this be outright fraud?"
Perhaps, but Getty RARELY files suit, are you going to sue them for fraud for sending a demand letter??
While I agree that it is important to have the "Legal Discussions" and quoting law, ect, the simple truth of the matter is that until Getty starts filing suits left and right over single images, it's all moot, when and if this starts happening I'll be more than happy to jump on the bandwagon.
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For those who are interested in the finer legal possibilities, I'll go back to the legal article originally posted by Ian when he first announced the class action in Israel. The law professors who wrote the article offer some ideas for correcting the abuse of what they term "strategic litigation," which we affectionately refer to as "copyright trolling." They state:
After uncovering these problems and analyzing their implications for prevalent understandings of rights in the jurisprudential and economic literatures, we identify mechanisms that our legal system ought to adopt to fend off the threat to the integrity of its rights-based design and bolster the protection afforded by rights. These mechanisms include heightened court fees, fee shifting, punitive damages, and various procedural safeguards. We submit that under the appropriate design, they can go a long way toward countering the strategic abuse of rights.
Their proposed solutions start on page 41 of this article:
http://works.bepress.com/cgi/viewcontent.cgi?article=1031&context=alex_stein
SPOILER ALERT: On page 48, the authors wrote:
Giving judges broad discretion to counter strategic litigation with punitive damages will not only deter strategic litigants, but will also motivate the innocent party to take her case to court. The introduction of punitive damages will radically reshape the payoff structure faced by innocent entitlements’ holders. Currently, they have no financial incentive to go to court. For the reasons we explained, from a pure financial standpoint, settling the case out-of-court always dominates litigation. However, once the possibility of collecting punitive damages is introduced, it will make sense for many innocent litigants to defend their entitlements in court.
In other words, make it more of a risk for the trolls to drag people into court with their fatuous claims and create an incentive for the victims to defend themselves instead of rolling over because of the economic considerations. The trolls already avoid actual litigation like the plague. The courtroom has not been very good to them. They've lost many cases and the few victories they have enjoyed have been pyrrhic at best.
I agree with Matt that the courtroom should be the last resort, but that may be the best venue in which to defeat the abuse of rights. Meanwhile, the media and public relations blitz continues to be as sound of a practice as ever.
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As Robert said, we are on the same team here. But we are also individuals who are bound to have different takes on any given topic. I think it is safe to say there are elements that people will agree with me on and there will be others that people won't agree on. We should all not try not to personalize it too much.
Quite frankly, I do grow weary of some of the repetition that occurs on the ELI Forums such as class-action lawsuits. However, what is absolutely new and of interest is that scraggy is doing something new in Israel. It isn't like a new person who suddenly rolls in and says "Got letter, someone should class-action to stop them in future!"
With as much activity that goes on nowadays on the ELI Forums, it is hard for any one person to keep up. There is also new information coming in both large and small.
What I say is that people should participate in those areas and topics they are interested in and passionate about as long as it is relevant to fighting copyright extortions. It doesn't require any of the ELI Defense Team members "endorsement" if you want to follow your thread of passion. Who knows? We could be swayed and jump in.
If a thread of discussion makes someone unhappy, just leave the thread. If something is otherwise inappropriate or out of bounds, email me or Robert. We will take care of it.
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Fair enough, guys.
I guess that it's simply gotten less interesting for me.
I'm not implying in any way that anybody owes me a thing, of course.
S.G.
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Seems at the moment there's either been a dip of activity or not enough letter recipients coming forward .
I wonder if the dip in activity is the usual Getty letter dip in between a new extortion letter run or if it may be something to do with the possible upcoming sale or public listing. Maybe trying to keep any negative publicity out of the spotlight. Around the time of a public listing it's a lot easier to get coverage for the negative aspects of a companies behaviour so is it possible they are laying low?
Lack of new stories to discuss does lead to speculative threads such as this.
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We have found that news comes in waves. There are quiet times then suddenly, we get a ton of new information and submissions. There are also many who simply don't post. They directly hire Oscar or hire me bypassing the forums entirely.
It has always been the case that people who post are far fewer than those who lurk and read.
Copyright extortions are still alive and well I am afraid.
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Matt:
4. Class-action is a perfectly valid topic of discussion but a few of us don't care enough about it to spend time on it. I am one of those people.
Me too.
SG:
If PicScout is "hacking" everyone, and people believe that, so be it. But I don't.
I also don't think PicScout is "hacking" anyone. Moreover, even if they are "hacking", none of the letter recipients has even one iota of evidence they are "hacking". As far as I can tell, Picscout visits publicly accessible web pages.
Moe
Quote
Giving judges broad discretion to counter strategic litigation with punitive damages will not only deter strategic litigants, but will also motivate the innocent party to take her case to court. The introduction of punitive damages will radically reshape the payoff structure faced by innocent entitlements’ holders. Currently, they have no financial incentive to go to court. For the reasons we explained, from a pure financial standpoint, settling the case out-of-court always dominates litigation. However, once the possibility of collecting punitive damages is introduced, it will make sense for many innocent litigants to defend their entitlements in court.
In other words, make it more of a risk for the trolls to drag people into court with their fatuous claims and create an incentive for the victims to defend themselves instead of rolling over because of the economic considerations. The trolls already avoid actual litigation like the plague. The courtroom has not been very good to them. They've lost many cases and the few victories they have enjoyed have been pyrrhic at best.
I agree with Matt that the courtroom should be the last resort, but that may be the best venue in which to defeat the abuse of rights. Meanwhile, the media and public relations blitz continues to be as sound of a practice as eve
I'm a little puzzled. It's not clear to me if you are suggesting we write our congress critters to encourage they change copyright law so that it "[Gives] judges broad discretion to counter strategic litigation with punitive damages...". or whether you are suggesting we should pursue a class action suit ( for something Getty might have done.) But the two actions have little to do with one another.
Either way, here is my view: If you want to write your congresscritter to change laws, I would suggest you draft a letter-- maybe contact this law professor and see if he will help you draft the letter. Or maybe try to form an activist groups working toward changing these letters. Then, periodically report what you've done. People will be interested. Likely, some will be happy to sign a petition and endorse your letter. Balls in your court.
If you want to pursue the class action, you do the homework to firm up whatever idea you have on this issue. That is: You do the legal research ( or hire a lawyer to do it). You dig up the fact pattern required to support your theory. It's pretty clear you -- the person interested in pursuing class action-- are going to have to be the one identify the class who has been harmed and what tortuous behavior you are going to sue about.
That's what Scraggy did. And I think that's great on Scraggy's part! But I think in Scraggy's case, the fact pattern became evident so he could act. Having actual evidence to support a class action suit is necessary. Otherwise, I see no point in discussing a hypothetical class action suit about some vague hypothetical activity.
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Lucia, I'm suggesting that we have to set a goal for how we'd like to remedy the current "strategic litigation problem." The article quoted makes a suggestion that I find intriguing, so I brought that into the discussion.
I don't disagree with anyone that a class action is a difficult and committed process. We're just talking here, but you're right that I could do more than comment on a forum.
The fact pattern is exactly what's being discussed, one that could be grounds for a class action in the US. I think the discussion has actually been spirited and informative.
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Lucia, I'm suggesting that we have to set a goal for how we'd like to remedy the current "strategic litigation problem." The article quoted makes a suggestion that I find intriguing, so I brought that into the discussion.
Then I'll bite: I disagree. I don't think we need "to set a goal for how we'd like to remedy the current "strategic litigation problem." I think what everyone on the Eli team is doing is higher priority that this and they would be foolish to divert their time and attention to this other issue. But if you want to make that your goal and work toward it, that's fine.
The fact pattern is exactly what's being discussed, one that could be grounds for a class action in the US. I think the discussion has actually been spirited and informative.
As far as I can tell, absolutely nothing about the fact pattern creates "grounds for a class action in the US". But maybe you have some sort of concrete idea in your head but just haven't managed to elucidate it. In my opinion, if you think the fact pattern exists, you should do some work to flesh out the issue and present it clearly. Then post precisely what the legal complaint would be, what specific laws it violates (go find the statutes) tell us what characteristics make someone a member of the class with standing to sue and list the evidence you have that getty actually might be found liable if someone filed the specific class action suit.
Otherwise, quite honestly, if you can't be specific I find the discussion entirely hypothetical and I think people on the Eli team would be wiser to focus on more productive activities.
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I'll certainly try to be more clear in the future, Lucia. I thought the topic of the thread suggested that brainstorming was invited. I never proclaimed to be a legal expert. I'll be the first to admit I'm grasping at straws.
If the topic is such a buzzkill, then why would you want to read the thread? It was the topic that attracted me to participate.
So let's move on to more productive activities, shall we?
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I thought the topic of the thread suggested that brainstorming was invited.
I think it started that way. But somewhere around page 3, it seemed to become pretty obvious that no one has any information to come up with a candidate class action suit with even the tiniest hope of winning.
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Okay then, just one more: Trespass to Chattels:
http://ilt.eff.org/index.php/Trespass_to_Chattels
Just kidding. I know you guys have talked about this until you're blue in the face. Don't listen to me.
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I am not at all sure why this thread seems to have rattled some feathers, but I am going to clarify my ideas once again. Here's an analogy.
Let's suppose a guy hangs around a parking lot, and every time he sees someone dent another car ( not his ), he jumps into action, claims that the car is his, and asks for $2000 compensation. If they don't pay immediately, he threatens them with a $20,000 lawsuit. Unsuspecting car owners believe the claim that the car is registered in his name, fear legal action, and pay up! Everyday, he manages to catch a handful of drivers ( mostly the weaker and more vulnerable among us ) , and makes a pretty good living!
He doesn't sue people - because the car isn't registered in his name!
Is there a case of fraud here? It seems to meet all the criterion for fraud.
http://listoffelonies.com/Fraud.php
I am not suggesting that Getty has no "exclusive licenses". For arguments sake, I accept that they own exclusive licenses for 95% of the images in their collections. I am however suggesting that for two specific collections, they do not own the exclusive licenses, and therefore have no right to sue.
If, out of every 100,000 letters sent, Getty sent 5000 letters demanding payment for images from the National Geographic or Dorling Kindersley collections, could this not be considered fraud on a large scale?
Here is a link to a landmark decision of eleven judges in the appeals court that dealt with the question - Who is legally authorized to sue for infringement of a copyright?
http://caselaw.findlaw.com/us-9th-circuit/1195551.html
Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright:
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.
17 U.S.C. § 501(b) (emphasis added). The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.” See 4 Business and Commercial Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”).
Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. § 106. The right to sue for an accrued claim for infringement is not an exclusive right under § 106. Section 201(d) refers to exclusive rights and provides:
(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.
17 U.S.C. § 201(d). Exclusive rights in a copyright may be transferred and owned separately, but § 201(d) creates no exclusive rights other than those listed in § 106, nor does it create an exception to § 501(b).
Section 501(b) must also be read in conjunction with § 501(a), which provides that one who “violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 ․ is an infringer.” The definition of an infringer in subsection (a) is parallel to the definition of a proper plaintiff in subsection (b). Common to both subsections is an exclusive copyright interest.
In addition, when a copyright interest is transferred it must be recorded to protect the copyright holder's right to bring an infringement suit. 17 U.S.C. § 205(d); see H.R.Rep. No. 94-1476, at 129 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5744 (“The provisions of subsection (d)[ ] requir[e] recordation of transfers as a prerequisite to the institution of an infringement suit․”). This requirement ensures that prospective buyers or transferees have notice of the copyright interests owned by others. See H.R.Rep. No. 94-1476, at 128, reprinted in 1976 U.S.C.C.A.N. at 5744 (stating that a copyright recorded in compliance with subsection (c) provides constructive notice of its contents). By contrast, the recording statute does not contemplate a transfer of anything other than an ownership interest in the copyright, along with the concomitant exclusive rights.
Returning to the operative section, under § 501(b) the plaintiff must have a legal or beneficial interest in at least one of the exclusive rights described in § 106. Additionally, in order for a plaintiff to be “entitled ․ to institute an action” for infringement, the infringement must be “committed while he or she is the owner of” the particular exclusive right allegedly infringed. 17 U.S.C. § 501(b).
The statute does not say expressly that only a legal or beneficial owner of an exclusive right is entitled to sue. But, under traditional principles of statutory interpretation, Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement. The doctrine of expressio unius est exclusio alterius “as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.” Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.1991).
By the way, in the above case, the author herself did not have the right to sue!
As Matthew said - we are all on the same side. I totally agree with Moe. We should encourage brainstorming and open discussion. We have to think outside the box! It's not conducive to discussion to tell anyone that they are talking out of their ass! There are intelligent people on this forum, and any arguments should remain civil.These forums contributed so much to my understanding, Abusing one another will simply make people leave the forum.
I would still like to know from Oscar if he has come across a significant number of images from these two collections.
I am sorry that my idea would only cover 5% of Getty's images! There are additional ideas above that would cover 100% of Getty's collections. They are just ideas - which is ok! This is a forum for ideas. No one said there was a magic solution! It's an uphill struggle!
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@Scraggy, your analogy with the car may very well be fraud, but if the car owners are too fearful, dumb, or lazy and just pay it, that's their problem. AS has been said numerous times someone has to stand up and make the fight, as you have apparently done in Israel. Without this it is a moot point.
I highly doubt Oscar has gotten a single letter concerning the collections you mention, if he had and the number was significant we would have heard of this and known of this. Just because he doesn't have time to post often, does not mean he is not in contact with ELI. I'm quite sure he would keep us in the loop.
To further back this up, I've been thru every complaint filed with Getty and there are no mentions of these colletions.
Brainstorming is perfectly fine, discussion is perfectly fine, but there comes a time when the issues get twisted and things start going south and it's all downhill from there, not everybody is going to agree on everything and sometimes it's best to agree to disagree. The beauty of this forum is the different personalities along with different points of view.
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Scraggy:
I love what you are doing in Australia where the evidence required for the class action suit was apparent and you filed.
And initially, the discussion in this thread about whether it might be possible in the US was interesting. But after a while, spending a whole lot of time on speculating about whether we could have a class action *if* numerous hypothetical things happened is a waste of time *unless we have evidence some hypothetical thing happened.* After page 3 of this series we alternate a) the discussions of counterfactuals with b) people saying this exercise is becoming pointless. The reasons why it might be pintless are either a) the legal theory for an actionable offence is tenuous or b) we have no evidence that getty committed the office or c both (a) and (b) are true.
With regard to your counter factual:
1) I would suspect that *only* the people who were sent letters about the DK owned photos could particulate in "the class".
2) Whether the action is fraud would depend on whether Getty could present a colorable case that suggests they at least *believe* they have a right to sue. In your car example, it's not fraud to ask for money for a damaged car you *truly believe to be yours* even if it turns out there was a flaw in your title and you were mistaken. (I think SG hsa repeatedly made arguments that pretty much drive home this point. )
3) On this thread we have not seen even one single DK or National Geographic owned images. (Robert and others have made this point.)
4) We certainly don't know anyone who got a letter about DK or National Geographic owned images *and paid*. (Robert and others have made this point.)
Whether or not I am correct on 1 or 2 might matter if we were law students required to prove our legal chops. But to use, it hardly matters because of (3) and (4).
I would still like to know from Oscar if he has come across a significant number of images from these two collections.
I understand why you would like him to answer this question as it touches on issue (3).
I'm sure that if Oscar reads what you wrote and he has a glimmer of a recollection any DK or NG images are in the collections, he'll tell you. But I doubt if he is going to spend a weekened pulling out all the files, and sitting computer trying to see if the images are DK or NG. I'm pretty sure he also can't just share them owing to attorney/client confidentiality requirements, so none of us can do that.
In any case, most of us think-- based on what we've seen-- that the answer to your question is "No. He hasn't come across a significant number of images from these two collections."
Unless someone does a heck of a lot of work that answer is not going to change. And so that line of questioning just stops dead.
If you want a better researched answer to that specific question, why don't you go here:
http://copyright-trolls.com/site/getty-images-public-record-complaints/
where you will find records Robert took time and energy to obtain there by making them accessible for research.
Download all the complaints , find the images involved and see whether even one is from DK or National Geographic. That would
a) partly answer your quesition and
b) if you find and DK or NG owned images the people who wrote those letter will materially benefit from your efforts.
c) if you find and DK or NG owned images you'll be on your way to having evidence an honest to goodness class action suit might be possible.
After that, you can also go through the forum Matt has created and to see if you can find a single DK or NG owned image discussed in the forum at large. Matt has uploaded lots of scanned letters so you can read each and compile the statistics to answer your letter.
While you are doing this, you could assign a code number to each one and enter each case in an excel spreadsheet with heading corresponding ot the first line below and entries corresponding to the second.
Case, agency, author, copyright owner, collection, image number, possible actionable offence, victim paid?, vicitim was sued?
1, getty, photog's name, national geographic, NG, 124xyz , beats me! , yes, no
After doing that clerical task, you could compute statistics if anyone asked "How many of the letter are getty?" or "How many of the getty letters are in the Stone collection? , how many might have involved "tresspass to chattels" or whatever other actionalbe offence you think might support a class action suit. Only after you find several will you have a class of people who you could approach to create a class action suit. (And many of them might turn out not to be interested. So unless you find at least.. oh... 10, you probably aren't going to get a class action suit.)
I think the task will take you the full weekend, and I anticipate you will find the answer to your current quetions is: "So far, we have no evidence Getty sent a letter demanding money for a single NG or DK owned image." But I could be wrong. And anyway, by collating, you might find something else.
Moreover, if by starting the clerical task of collating you do find *something concrete*, you should report that as soon as possible because finding something might inspire a few people to assist in further collation. (Or not.)
Other than that: as far as I can see, unless the brainstorming and talking leads to a specific volunteer taking on a specific research task (which will mostly involve clerical efforts) and those clerical efforts produce *evidence* that would be useful in a class action suit, the brainstorming will just lead to people answering the speculations about "class action suit" by repeatedly explaining that you have no evidence to support the hypothetical path to a class action suit.
So I would suggest that the one, two or three people who are interested in trying to identify a basis for a class actions suits should sit down and think about what tasks this line of attack requires. Collect evidence is certainly one of these task. Then one of those people should take on which ever task seems most fruitful to them.
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Lucia and Buddhapi make many good points and it's good reading.
I think that Scraggy is really, really stuck on the mistaken idea that Getty could only sue if their agreement with the artist is "exclusive".
I have explained again and again that this simply isn't true. I think that his reasoning is that just because he doesn't understand "the law" or what I am saying, that he is "correct" and he has a viable legal case.
I'll say it again. The holder of a non-exclusive agreement HAS THE RIGHT TO SUE provided that one of the following stipulations from "Section 106" is written into the agreement. The list is as follows:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
I hope that everyone is with me so far. It's just a list; you don't even have to know what those mean.
If at least ONE from the list is written into the non-exclusive agreement, then the holder of that agreement has the right to sue.
You may now ask "why is that?". Very good question.
There was a legal case in the US that set a clear legal precedent.
What's a "precedent"? That is when somebody made the argument in court in the past, won, and as such this decision has legal weight and dictates future court decisions by judges.
This "precedent" was set in the cases "Silvers v. Sony" and "Eden Toys, Inc. v. Florelee Undergarment Co...". I posted links earlier.
These say that:
1) "these exclusive rights may be transferred and owned separately".
These "rights" are from the list that I pasted above.
This point simply means that one may choose to put one, or several things in the list into a "non-exclusive" contract.
You may at this point ask, "what makes S.G. think that this hypothetical contract is "non-exclusive"?
I'm glad that you asked. I know that we're referring to a non-exclusive contract, because an exclusive contract would confer the entire list above upon the other party; we wouldn't "pick and choose" from the list.
2) "One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright"
In US law, when one speaks of "exclusive rights", that's referring to the list that I pasted above.
I think that this second point is very clear on its own:
One has the legal right to sue so long as one or more of the exclusive rights from the list is written into the contract.
Righthaven lost at every turn, because they didn't have the "right to sue". They did not have any points from the list of exclusive rights written into their contracts.
However, Getty usually has at least one thing from the list written into their contracts. I'm going to tell you what it is.
It's usually one or both of the following:
1) to reproduce the copyrighted work in copies or phonorecords
2) to prepare derivative works based upon the copyrighted work
In the first case, it allows Getty to reproduce the images on electronic media, or paper media.
In the second case, it allows Getty to magnify, crop, adjust color, resample the images, etc. Which they do.
Additionally, I'm not buying your assumption that Getty has the same things in their agreements as Marot.
It appears to me that "the last person to post in the thread is the winner", but court isn't like that.
You can say that I'm wrong, but unless you can shoot down my analysis with a better legal argument, I will insist that I'm right.
Furthermore, I know that there are people here that won't back down unless Oscar himself comes to THIS THREAD and says that they're wrong.
Some people here have such blind faith in their theories, they will not even give credence to past postings that Oscar made.
So be it. But after a certain point, it's like one person saying that the sky is blue, and the other saying that the sky is red, because he/she likes that color better.
Scraggy, at this point, I'm wondering if you were ever really sued by Marot.
You've gained respect here because of your claim, especially from Matt. But, I question your credibility at this point.
I'm going to finish by saying that if a complete amateur can shoot down your legal theory, then Getty's 1000 dollar/hour lawyers are going to have a ball hanging you out to dry.
S.G.
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SG--
I believe scraggy was sued. The statutory law or precedents may be different in Israel and Marot may not have the rights Getty has. That happens all the time-- and the difference could contribute to his understanding that one might need a different fact pattern to prevail in the US.
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Iv'e heard of more than person claiming Getty is "suing me" when in fact, they only received a "demand letter"...2 very different beasts.
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To be fair...
Scraggy did send me some links.
"Ian Cohen" is indeed leading a class action.
S.G.
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Quite correct. People exaggerate and that bothers me a lot. It takes credibility away when people say things that aren't really true.
That is why I get a little freakish on these forums when people go too far in speculating and conspiracy theories. People should NOT make statements as fact if they are actually opinion and speculation. That happens a lot.
Or people say things with very weak or shaky evidence. Even if it comes from someone credible, I will still occasionally drill down and ask "who and where did you get that info from" and see if it is first-hand or second-hand information.
I am big believer in checks and balances because EVERYONE can make a mistake.
Iv'e heard of more than person claiming Getty is "suing me" when in fact, they only received a "demand letter"...2 very different beasts.
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Yup, that is why I give Ian a lot of latitude. He is actually doing something about it in the region he is living in. The rest of us, including me, can only talk about the class-action angle. Hell, I barely even do that!
Not a single person in the U.S. (that I know of) has done anything even remotely close on the class-action front to being meaningful but lots of people (especially newbies) come passing through shouting "class action". Great idea, never heard that before, next!
On the Linda Ellis front, we have one Australian extortion victim generate more discussion than anyone else in the U.S. besides April & UJB. And yet, there are all these U.S victims with their traps shut tight.
It almost always comes down to those special people who step up that make a big difference.
To be fair...
Scraggy did send me some links.
"Ian Cohen" is indeed leading a class action.
S.G.
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I'm going to book-mark this thread.
The "class-action" topic comes up a lot.
It will be good to have this handy.
S.G.
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OK - let me start by saying what I have said several times before - we are regularly contacted by folks interested in the class action angle and a few times per year are contacted by class action lawyers. I share alot of information with them (all client names and identifying info are redacted of course) and they never come back to me with any further interest. It has gotten to the point where I have a file called "class action response" that contains the redacted letter(s), a brief synopsis of the Getty issue and some bullet points of pro/con of a Getty class action. So now I just send folks that file when they indicate an interest in proceeding. SG is absolutely correct that Getty can have different arrangements for certain collections which while non-exclusive still allow Getty to sue or make a claim on behalf of the copyright holder. As to those two collections, I do not recall seeing them with any frequency built we do not catalog the claims based upon the images. We only keep a look out for cases involving The Stone Collection as I believe Getty has registered that collection (though of course I feel the registration method used is invalid but that's a whole other story). I will however tell my staff to keep an eye out for those collections and will let you know. Where I think there may be some room for a class action is where Getty charges sales tax in addition to the claim amount. Since we last posted about it, we have not received any Getty letters where they demanded sales tax so maybe Getty has stopped doing that.
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Hi Oscar,
Regarding your quote above:
Getty can have different arrangements for certain collections which while non-exclusive still allow Getty to sue or make a claim on behalf of the copyright holder.
As hard as I have tried, I simply cannot find any laws or precedents in the USA to support the view that the owner of a non exclusive license has the right to sue for copyright infringement. Could you please show me where this appears? I have found plenty to the contrary.
Take a look....
http://caselaw.findlaw.com/us-11th-circuit/1561309.html
(“[T]he holder of a nonexclusive license may not sue others for infringement.”); I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir.1996) (“[A] person holding a nonexclusive license has no standing to sue for copyright infringement.”).
http://mashburnpatentlaw.com/?page_id=7
A written license agreement, however, is not required for a non-exclusive copyright license, and a non-exclusive licensee cannot sue others for infringement nor can they register their interest in the copyright.
http://www.legalcorner.net/articletemplate1.asp?name=copyright_license_art_002
Since a non-exclusive license is not a transfer of copyright, the holder of a non-exclusive license cannot sue for infringement, only the owner of the copyright has that privilege.
and even IN THE UK
http://www.inbrief.co.uk/intellectual-property/who-can-claim-copyright-infringement.htm
Who can bring a claim for copyright infringement?
A claim for copyright infringement can be brought by the owner of original work which is protected by copyright or by a person who has been granted an exclusive licence to the work by the copyright owner.
A non-exclusive licensee cannot bring a claim for copyright infringement.
The verdict from Silvers vs Sony discussed why ONLY the copyright holder and owner of the exclusive license had the right to sue
http://caselaw.findlaw.com/us-9th-circuit/1195551.html (http://caselaw.findlaw.com/us-9th-circuit/1195551.html)
Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright:
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.
17 U.S.C. § 501(b) (emphasis added). The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.” See 4 Business and Commercial Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”).
Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. § 106. The right to sue for an accrued claim for infringement is not an exclusive right under § 106. Section 201(d) refers to exclusive rights and provides:
(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.
17 U.S.C. § 201(d). Exclusive rights in a copyright may be transferred and owned separately, but § 201(d) creates no exclusive rights other than those listed in § 106, nor does it create an exception to § 501(b).
Section 501(b) must also be read in conjunction with § 501(a), which provides that one who “violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 ․ is an infringer.” The definition of an infringer in subsection (a) is parallel to the definition of a proper plaintiff in subsection (b). Common to both subsections is an exclusive copyright interest.
In addition, when a copyright interest is transferred it must be recorded to protect the copyright holder's right to bring an infringement suit. 17 U.S.C. § 205(d); see H.R.Rep. No. 94-1476, at 129 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5744 (“The provisions of subsection (d)[ ] requir[e] recordation of transfers as a prerequisite to the institution of an infringement suit․”). This requirement ensures that prospective buyers or transferees have notice of the copyright interests owned by others. See H.R.Rep. No. 94-1476, at 128, reprinted in 1976 U.S.C.C.A.N. at 5744 (stating that a copyright recorded in compliance with subsection (c) provides constructive notice of its contents). By contrast, the recording statute does not contemplate a transfer of anything other than an ownership interest in the copyright, along with the concomitant exclusive rights.
Returning to the operative section, under § 501(b) the plaintiff must have a legal or beneficial interest in at least one of the exclusive rights described in § 106. Additionally, in order for a plaintiff to be “entitled ․ to institute an action” for infringement, the infringement must be “committed while he or she is the owner of” the particular exclusive right allegedly infringed. 17 U.S.C. § 501(b).
The statute does not say expressly that only a legal or beneficial owner of an exclusive right is entitled to sue. But, under traditional principles of statutory interpretation, Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement. The doctrine of expressio unius est exclusio alterius “as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.” Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.1991).
What do you think?
Thanks
Ian
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Scraggy,
I already posted a precedent showing how one can sue while only having a non-exclusive agreement.
Silvers vs Sony is a precedent as you say, however later precent Eden Toys, Inc. v. Florelee Undergarment Co. showed that the non-exclusive license holder could sue if certain conditions were met.
Oscar has stated what he thinks; I doubt that it would be productive for him to repeat himself, and then be told that he's "wrong".
(http://th207.photobucket.com/albums/bb299/DoubleJayAlum/th_not_this_shit_again.jpg)
S.G.
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Posted by: SoylentGreen
Silvers vs Sony is a precedent as you say, however later precent Eden Toys, Inc. v. Florelee Undergarment Co. showed that the non-exclusive license holder could sue if certain conditions were met.
The Eden Toys case was 20 years before Silvers vs Sony. There was no discussion at all concerning non-exclusive licenses. The case discussed the need for Eden Toys to own an exclusive license in order to sue, and concluded that "one who owns no exclusive right in a copyright may not sue for infringement". Silvers vs Sony then discussed the case 20 years later, and supported the view that only the owner of an exclusive license has legal standing to sue. If you still think otherwise, please send me the specific quote you are referring to that shows the opposite.
Here is a summary of the case:
http://www.coolcopyright.com/cases/fulltext/edenfloreleetext.htm (http://www.coolcopyright.com/cases/fulltext/edenfloreleetext.htm)
if Eden had an exclusive license at the relevant time to
exploit Paddington's copyrights in the market in which Florelee was selling,
Eden would be entitled by its exclusive license to sue Florelee for infringement
of those copyrights. See the discussion infra of Eden's exclusive license
claim.
Eden's Claim as Exclusive Licensee
Eden also sues for infringement as exclusive North American licensee for
certain Paddington Bear products. An exclusive licensee of a right under a
copyright is entitled to bring suits for infringement "of that particular right,
" 17 U.S.C. § 501(b) (Supp. IV 1980), without being required to join his
licensor. 3 M. Nimmer, supra, § 12.02, at 12-24 (1981). The question, then, is
whether Eden was the exclusive licensee of the right allegedly infringed by
Florelee,
Twenty years later, the Silvers vs Sony judgement quoted the above case.
http://caselaw.findlaw.com/us-9th-circuit/1195551.html (http://caselaw.findlaw.com/us-9th-circuit/1195551.html)
In Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982), superseded by rule and statute on other grounds, the court held that one who owns no exclusive right in a copyright may not sue for infringement. The court explained:
Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee. Clause 9 of the 1975 Eden/Paddington agreement ․ contemplates such an arrangement. We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf. While F.R. Civ. P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, the Copyright Law is quite specific in stating that only the “owner of an exclusive right under a copyright” may bring suit.
Id. at 32 n. 3 (citations omitted).
It is not entirely clear whether the copyright holder in Eden Toys had granted to Eden the right to sue on accrued causes of action, as is the case here, or only the right to sue prospectively. Whether the assignment was prospective or retrospective, however, the court made plain the basic principle, which we also have derived from § 501(b) and its context and history, that only the owner of an exclusive right under the copyright is entitled to sue for infringement.
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Good links.
But, you should just let it go, bro.
S.G.
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Scraggy,
I admire your tenacity. But assuming everything you say is correct, "someone" or "some people" has to want to pursue something like this.
So far, here in the U.S., no one is stepping forward to take on such a role.
Even if there was "someone" willing to be the 1st client, there is also the issue of having some attorney(s) with class-action experience willing to take it on contingency.
That is pretty much how I see the situation at the current time.
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OK - part of the problem with forums like this is that copyright law is highly specialized and has many nuances. Also, this is not the place for a 60 page dissertation on the meaning of the term "exclusive and non-exclusive." Let me just say that what I meant and what I stand by is the Getty can have been granted the exclusive right to sue but not have other rights exclusively like the right to re-print the image meaning the totality of its rights are not exclusive. I have often argued with Getty (many years ago when we actually talked on the phone) that if they did not have an exclusive right they could not sue under the Copyright Act and they always argued that they had exclusive rights. The argument never went any further because they never showed me their rights agreement and once I realized they never registered the images anyway, it became a moot point
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Thanks, Oscar.
It's clear that anyone that's seriously thinking of a class action should consult an experienced attorney.
Hopefully we can let it rest.
S.G.