With some of the stuff I've seen, I'm not convinced that this isn't going on. What is just as bad, IMO, is essentially turning a blind eye to it because it is helping increase infringement revenue. Honestly, if this weren't the case, wouldn't they be doing at least simple things to slow down the proliferation of their images on these "free" sights? Things like watermarking their images.
Here's the problem: when a client licenses and downloads an image legitimately, that photograph won't have a visible watermark on it. It might have a unique filename and embedded IPTC and EXIF metadata with information about whom the rightsholder is and further still, it might also use a digital watermark such as DigiMarc to allow uses of that photograph to be tracked and traced.
The file can be renamed, the IPTC and EXIF data can be stripped out - which just leaves the digital watermark (if it is present).. and all that serves as is an electronic 'fingerprint' which allows the uses of the photograph to be found and then checked to see if they are legitimate.
Another issue is that login details for image libraries are routinely traded online so that the blatant, don't-give-a-shit infringers can access high-resolution images for their own sites; they buy or trade these passwords and the second that one becomes deactivated, you can bet that a half dozen more spring up.
A good many of these people live in countries whom don't have strong IP laws on their books and, worse still, they use tech such as VPNs or IP masking to make it nigh-on impossible to track them down, let alone shut them down.
At the very least, shouldn't an innocent infringer (overseas website designer victim) with an invoice be given a second chance?
I'm not sure I follow you here - please elaborate so I can get an understanding of your point.
Should a simple picture of an everyday object (a baseball for example) be copyrightable? I don't believe it should.
We're going to disagree here because there are an infinite number of ways in which you could photograph that baseball to make it look unique or different. There's the background, lighting, framing, depth of field and a myriad of other elements to the creative composition of a photograph that means your shot of a baseball could stand head and shoulders above all the other shots out there -
As a fixed expression of an idea, any photograph can be copyrighted. The question of how unique such a photograph is might determine its value in the mind of the end user... but that still does not give anyone the right to just appropriate it.
Think on it this way: you want a burger. You can get a $0.99 one at McDonalds, or a $19.99 gourmet burger at an upscale restaurant. Essentially, both products are the same - so you have to make a value judgement on your needs versus your ability to pay. Is the gourmet burger worth $20? Is it worth twenty times the McDonald's burger? Probably not... but you can choose what to eat, the same way you can choose to not eat either of them.
Shouldn't demands/awards for actual damages be substantiated by a sales history of the actual image and/or similar image sales? and NOT on some inflated dreamed up retail "list price" that no reasonable person would pay?
No to the first part, though I somewhat agree to the second part - because providing such information during legal process can back up a claim quite a bit. Here's a very recent example of how that worked in court
http://www.bailii.org/ew/cases/EWPCC/2013/26.html
If it is unique/creative/important enough to copyright, doesn't it deserve it's own single copyright registration? Is "bulk uploading" of hundreds or thousands of unremarkable images for copyright not just another cog in the infringement demand machine/scheme?
Again, I'm going to disagree here. On a work week, I shoot thousands of images and sometimes hundreds get sent out to clients during that week. I bulk register because a) it's permitted and b) it's the right balance of cost vs. effectiveness for both artists and the copyright office.
If it were mandated that every single work be registered individually, then only major content creators could afford to register their copyright works - and this would leave small businesses and the self-employed ripe for exploitation.
On the first point:
Its not my fault that photographers live in a bad neighborhood (the internet). An analogy: If I buy a used part and it turns out to be stolen (unbeknownst to me), I return it. I'm not fined and harassed for "statutory" or "actual" damages as far as I understand it. I'm not a criminal. My "punishment" and "lesson learned" is that I lost the part I bought. I'm more careful and knowledgeable next time.
On the second point:
An example: I hire an overseas firm to design a website for me. He uses infringing images, but tells me they're his own, or he has the rights to them, or whatever. Maybe he doesn't even say anything if I'm not knowledgeable enough to ask. I get a demand letter from true copyright holder. I explain the situation and take down the image. The copyright holder asks for proof and I show him the invoice from the overseas firm. I get warned (not fined) and we part ... maybe even with me as a new customer. I know that isn't the current copyright law, but that's how I think it should work.
Third point:
I'm talking about unremarkable shots. I know you still disagree, but I'm not entirely convinced that a court would disagree with my position in many cases.
On your burger example: should I be fined $30,000 because the hamburger I bought from a street vendor in India looks too much like a big mac?
Fourth Point:
Statutory damages for registered image infringements are the current law. I understand that, I just don't agree with it in the case of innocent infringement. Thankfully, at least the court is allowed to lower statutory damages to $200 per innocent infringement, but I still disagree with it.
For unregistered images, it's my understanding that my opinion is in line with the courts to award "actual damages" which is fair market value.
Fifth Point:
I really want photographers to be successful by providing a product that people want to buy. I really do. I'm really happy for them when that happens. I just don't like to see some poor unknowing chap harassed for tens of thousands of dollars because he unknowingly used an unremarkable picture of a bowling ball in some silly blog post that 10 people read (a made-up example).
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