Messages

61

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 06, 2011, 08:46:34 AM »

Yes, probably rare.  

"(published by Getty ... not the infringer)"

Yes, by Getty. Incidentally, you can't have publication by an infringer.  Publication has its own meaning under the copyright act.  And it requires authorization of the copyright owner.  

"Wouldn't it be funny if Getty actually ended up setting a precedent that went against them in their letter campaign?"

Very different case I think. AFP/Getty actually sued the photographer for making noise about copyright infringement.  He sent a C&D letter and they responded by suing him for, among other things "antagonistic assertion of rights".  Which probably would go over big on this forum but made me laugh when I read it. In turn photographer counterclaimed for copyright infringement.  They put forth the defense that they have a license to use the photographers photos because of the language in the Twitter and/or TwitPic TOS.  Their argument is ridiculous.

62

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 06, 2011, 08:09:52 AM »

It was speculation on my part as to the typical response.

"...wouldn't you agree that the issues you raised from Maverick probably aren't applicable to most Getty letter cases?"

I wouldn't want my attorney spending my money on novel 401(d) issues unless and until Getty tries to preclude my innocent infringer defense, assuming I was putting one out there. <

63

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 05, 2011, 10:19:52 PM »

"And remember that the images must have been registered before infringent before statutory damages can be awarded at all."

Lettered, I forgot to add to this comment.

It gets stated so many times on this board people may think what you said is the rule. It's not complete. The actual rule is prior to infringement for unpublished work. For published work you get a three month grace period. So someone can infringe you before you register but so long as you register within three months of your first publication you can get fees and statutory damages.  A lot of businesses would be unable to benefit from these remedies (and practically protect their work) without the grace period.

For example, there is currently a fairly well reported ongoing dispute where AFP and Getty, among others, are defendants in a photo infringement suit. AFP lifted photographers photos off TwitPic. The photographer didn't register until weeks later.  Photographer satisfies the three month rule as far as seeking statutory damages and fees.  The case is not going well for AFP/Getty on the underlying infringement issue either.  

Getty so aggressively fighting for copyright owners as plaintiff is putting forth some pretty silly arguments when the shoe is on the other foot.

64

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 05, 2011, 08:47:04 PM »

Oscar wrote: "...as even the below average layman has to know that songs are copyrighted and are not free to use whenever one sees fit.  That is not the case with a thumbnail image that appears on a template sight with no copyright notice. "

But the issue wasn't what she knew. It's whether she could even raise the "innocent infringer" defense at all. That was the fight. Pay $200/per or pay $750/per.

As for pointing at the template site with the thumbnails and no copyright notice, you're looking at the wrong copies (according to Maverick).  As plaintiff's  argued : "The statute’s plain language focuses on access to the “published” work, not on whether the copy of the work a defendant used to conduct her infringing activities bears the notice...The statute, however, expressly defines a “published” work as one that is “published in .....by authority of the copyright owner.”  The CDs are the relevant copies. The CDs have copyright notice.

So let's say I'm a photographer and I'm willing to put a copyright notice on my online work (making it ugly) because I want to preclude any innocent infringer arguments.  Someone copies my photos w/o permission and photoshops my copyright notice out and then offers it to others.  I find the photo online (more realistically, someone more sophisticated finds it for me).  I sue the "downstream" infringer. Infringer, of course, says innocent infringement. I point to the only authorized copies (the "published" copies) on my site as having the applicable copyright notice.  

I think it safe to say you will tell me I lose. Why?  

Because the infringed copies don't have notice  (Maverick argues against that) ?

Or because infringer didn't "have access" to the "published" copies ?

65

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 05, 2011, 08:31:36 PM »

Lettered, most people probably ignore it unless and until Getty files a lawsuit, right ? And from my reading around here they don't seem to sue much.

I don't think people should be cutting checks to anyone without understanding where they stand. I also recognize the reality that lawyers cost money. And that any real defense of a copyright action (I don't mean a lawyer for a nominal amount sending a letter or two to try to end the matter) will quickly eat up any settlement "savings".  The Getty cost-benefit dilemma goes both ways. In addition, for Getty it's just business. When it's you it's personal which is another reason, ideally, you want to dump it on a lawyer.

On Maverick :

"The statutory damages were held at the absolute minimum (considering the innocent infringer defence was disallowed for a technicality) of $750 per infringement. "

The statutory minimum was the amount the plaintiff requested. So plaintiff got exactly what plaintiff wanted (and with the favorable precedent, more):

Plaintiff asked the Judge to enter an award at min statutory damages of $750 per infringement based on the argument that there were no triable facts regarding the infringement  (the liability question) and the plaintiffs only wanted the statutory minimum so there was nothing for a Jury to consider as far as damages (the damages question).

The defendant/infringer argued there was a question for the Jury of whether she was an "innocent infringer" so the court can't award $750 because if the Jury found her to be an "innocent infringer" they had the option of awarding as little as $200/per.  This is where it went sour for the defendant.

The plaintiff said, fine, just award $200 per but if defendant appeals the issue of liability then I retain the right to talk about whether she can in fact argue "innocent infringement."  So at that point defendant could have paid $200/per and be done.   Defendant/Infringer did in fact appeal and raised a number of issues including challenging liabiility on a number of the infringed musical works.  The court rejected the liability arguments.  The plaintiffs then raised the issue of whether she could present an "innocent infringer" defense to the Jury.  The appeals court overturned the trial court on this issue finding that as a matter of law  she could not raise the issue.  So they upped the award to $750.

So plaintiffs got what they asked for as well as favorable precedent interpreting section 402(d) of the copyright act (which precludes the "innocent infringer" defense from being raised).  Not a "technicality" as you call it. That would be more akin to a one-off ruling; neither here nor there as far as future cases. Believe me the next music download case to argue "innocent infringer" and the other side will argue that the "innocent infringer" defense is precluded because the CDs have a copyright notice and the downloader had "access" to the CDs.

If there is any positive for music infringers I would say it is that infringer in this case did not contest that she had "access" to the physical CDs which contained the copyright notice.  

The positive in the photo realm ?  It's a digital music case. The "published" copies of the work to which you have to have access and that need to contain the copyright notice are on physical CDs. Arguably you can track down the applicable authorized copy -- the CD.  How do you track down the authorized copy of the photo ?

"This combined with the fact that infringment of multiple items in an image compilation are currently held, I believe, as a single infringement shows a very favorable position (compared to the grim picture painted by some, I think) for many letter recipients, I think. "

Not an issue in the Maverick case.

"And remember that the images must have been registered before infringent before statutory damages can be awarded at all."

True. Also not an issue in Maverick.

66

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: December 31, 2010, 12:45:51 AM »

"We should all keep an eye on the case anyway to see if the jury award in Tenebaum [sic] will be upheld."  

Old news as well.  

3x statutory min ($750) = $2250 per infringed work is the maximum award constitutionally allowed given the facts (non-commercial file sharing), according to the Judge.  The jury awarded $22,500 per.  

(Keep in mind the case involved non-commercial infringement.)

“Weighing all of these considerations,” the judge wrote, “I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive. This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis’ characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply “unprecedented and oppressive.” Capitol Records Inc. v. Thomas, 579 F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot withstand scrutiny under the Due Process Clause.”

“For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case.”

67

Getty Images Letter Forum / Re: Interesting Recent Intellectual Property Issues

« on: December 31, 2010, 12:19:11 AM »

Seasons Greetings.

Is the person in charge of updating this thread OK ?

Maverick v. Harper was overturned by the appellate court ten months ago.  And the Supreme Court subsequently declined to hear the case.

ABA case summary (http://new.abanet.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=108):

"In an opinion by Judge Clement, the U.S. Court of Appeals for the Fifth Circuit found in favor of the record companies, both by affirming Harper’s guilt and by adjusting her penalty from $200 to $750 for each of the 37 audio files in question.  Harper’s liability to the companies therefore totaled $27,750.  The Fifth Circuit explained that it did not matter whether Harper knew her conduct was illegal.  As long as the record companies provided notice that unauthorized reproduction was a copyright infringement, the subjective state of mind of the defendant does not matter.  The Fifth Circuit found that warning labels on the compact discs from which Harper’s files were originally downloaded satisfied this notice requirement.  Whether Harper ever saw these compact discs was irrelevant."

Alito dissent (he wanted to hear the case): http://tinyurl.com/34hxvvp

Record companies (who won) and the infringer (who lost) arguments to the Surpreme Court to not hear and to hear the case, respectively (sorry, you may have to google if these URLs don't post properly.).

http://www.scribd.com/doc/32060955/Harper-Petition-for-certiorari

http://www.scribd.com/doc/39440193/Plaintiffs-Opposition-to-petition-for-certiorari-in-Maverick-Recordings-v-Whitney-Harper

Oscar, not only is Maverick not helpful any longer it suggests the following question:

Whether 401(d) precludes the innocent infringer defense when a stock image company places copyright notices on the copies it publishes at its freely accessible web site even if the copies infringed by the defendant had no copyright notice on them.

68

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 24, 2010, 12:41:12 AM »

Admin, what in particular did you find "unpleasant" ?

It's your board so feel free to delete what you wish. But don't expect people to participate if you delete their posts.

"But I must agree that I am unclear as to what capacity you are speaking in."

In what capacity ?  I have absolutely no dog in this fight. No affiliation with Getty. I found the site and some of the issues interesting. I should add that I realize receiving these letters causes real distress to people receiving them and I'm, of course,  sensitive to that. I thought I was adding to the conversation. If you want a site sanitized with only site approved views, your choice.  

Regards.

69

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 24, 2010, 12:11:05 AM »

Like I said, it's not my board.  However:

"OK, I see the point you're trying to get across now. If I had an unlicensed image on my website up until 2005 and Getty didn't become aware of it and send their letter until 2010, I would still be exposed if the court is using the discovery rule."

Didn't become aware of it won't cut it. It depends on why they weren't aware until 3+ years later. But, yes, depending on the court and the facts I would not say "AT ALL" as you did. Though obviously if it makes no economic sense to pursue small time, potentially innocent infringement within 3 years it's that much less appealing if you have to argue about the SOL first.  

"Good to know. However, I don't think any of the stock image companies are scouring the way back machine for infringement... yet."

If it comes up it may be in the context of arguing about damages. Incidentally I don't know where Getty is coming from asserting that "enforcement costs" are part of "actual damages."  Do they actually say that in their demand letter ? I don't think so.

It would be interesting to see the formula whereby Getty allocates "enforcement costs" to its contributors. Do they do it on an image by image basis or some other allocation? What if the cost exceeds the return ? Who eats it ?

"As far as exposure to damages for periods > 3 years: I understand what Oscar's opinion is, but what I'm asking is how effective is his argument with the stock image companies? I'm sure they will say that they are entitled to all damages, but is the argument an effective tool in getting them to reduce their settlement demand?"

Do they even go into the period of infringing activity when making their demand? Can they even determine what it is ? They seem to just present a number. Where do they get it from ? What does it represent ? Why is their release so poorly written "this identified past infringement" ? What is that referring to ?  Ah Getty, so many questions so few answers. Whose going to pay for all the answers. I'm not. You can hire Oscar for a full out lawsuit and get some answers to these questions that are puzzling me.

Obviously any argument convincing them of anything making their case weak(er) will help.  Here's an argument. Has any court ever allowed it for a stock image company pursuing an innocent infringer of a photo on a web site ? No did you say ? That's pretty compelling. No court has ever allowed it. I like that. That's mine. You can't use that.

It looks like they try to get what they can get, right ? Look, it might be nice for content owners and their alleged exclusive licensees for there to be a small claims court to resolve small-time infringement. Especially when the image is not registered prior to infringement. But there isn't.  And Congress wants you to register early. And you didn't. So that's too bad. So they have to go to federal court. And often pick up their own fees. It can get expensive. Even if they could get actual damages for another year+ license fee that doesn't mean the case is so wonderful.

If you have real world questions relating to a real world demand letter, you should get a real world lawyer.

70

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 23, 2010, 07:53:11 PM »

"could they file a lawsuit 3 years after you take down their images AT ALL?  I think we all agree the answer is no."

No, we don't.  But instead of repeating the issue. Or pointing you to case law.  How about another attorney writing for a general audience ?

Like this site (see "Handling Past Infringements" and "Collecting Damages.") :

http://rising.blackstar.com/is-there-a-statute-of-limitations-on-copyright-infringement-claims.html

Of course, if the case was weak to begin with it only gets worse with the SOL issue.

" It would be interesting to hear from Oscar how effective the argument of recovering a maximum of 3 years worth of damages is with Masterfile."

I believe Oscar has already stated his "opinion of how this issue should be resolved." and that "for folks who have the images up for 4,5, 6 years whatever, the image companies cannot get more than a maximum of three years worth of damage."

Interesting to note that this other attorney is writing for content owners (i.e., photographers) and Oscar is focusing this board for content users.

"This injury rule vs discovery rule debate only seems relevant to cases involving registered images"

I don't know where you get that but at some point it's time to move on to another thread.  And it's not my board so I think for me that time is now.

(And I assume by registration you mean registration within the time frame necessary to be eligible for statutory damages and/or recover attorney fees. Unless dealing with a non-US work, you have to register to get into court. If Getty is dealing with an unregistered image it will have to be registered at some point if they want to go to court. The image can be registered at anytime during the life of the copyright.)

71

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 22, 2010, 12:57:03 AM »

"where the image was taken down upon receipt of the demand letter"

Congratulations. And what does that have to do with how long you've been infringing ? And whether I can get (any) damages outside of the three year window from filing suit ?

Do you get that if you use my photo without authorization I want damages for your entire period of infringement. I don't want my damages for what a license cost for one day if you used it for X years ?

"Since both of us are laymen and presumably not overly qualified to do these type of legal interpretations anyway,"

Thanks for the compliment. Reminds me of the rewards of of pro bono work.

Anyway, I think I get points for trying but I give up at this point.

72

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 21, 2010, 11:51:29 PM »

Three times a charm ?

[I hope this adds to the discussion as it took some time to google you cases.  Please understand that this is not legal advice. I suggest you consult with your lawyer for that.]

They learn of the infringement Jan 1, 2011.
You take it down Jan 2, 2011.  
They sue Jan 1, 2012.

You haven't supplied a key date. When did the image go up (i.e., when did the infringing activity commence). If the infringement began after Jan 1, 2009 (three years back) Getty can recover damages for the entire period of infringement. I believe all courts will permit that.

But what if you've been infringing going back before Jan 1, 2009  The "injury rule" would bar recovery for that period. The "discovery rule" would require a fact based inquiry into what plaintiff knew or should have known about the earlier infringement. You would not necessarily be home free for the earlier infringement.

"I don't see how the application of either rule could ever net more than a maximum of 3 years damages in any case."

See above. Or better yet read the law for yourself. I found some cases for you at random and assume they are still law in their circuits. My point isn't to present a picture of the law in each circuit.   Merely to note as I said in an earlier post, there is a split in the circuits. This isn't "vague" as suggested above.

The blanket statement that you can't get damages outside of the three period is not supported.  It depends on the Circuit, the rule used to determine "claim accrual" and the circumstances of the case (such as what plaintiff knew or should have known about those infringements).

I think most Circuits follow the "discovery rule". Though there is some reason to think that the writing is on the wall for the "discovery rule" in the Second Circuit.

Here is a case from the 9th Circuit: http://ftp.resource.org/courts.gov/c/F3/384/384.F3d.700.03-35245.03-35188.html

[Incidentally, you seem to be making the same argument the defendant did in that case and the court deemed "novel": ("I don't see how the application of either rule could ever net more than a maximum of 3 years damages in any case" )

"In copyright litigation, the statute of limitations issue that often arises is that the plaintiff filed its copyright claim more than three years after it discovered or should have discovered infringement. Here, Timex makes a different, novel argument and asks us to rule that § 507(b) prohibits copyright plaintiffs from obtaining any damages resulting from infringement occurring more than three years before filing the copyright action, regardless of the date the plaintiff discovered the infringement. In Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1041-42 (9th Cir.2000), we left for another day precisely this argument; that day is now upon us. We conclude that § 507(b) permits damages occurring outside of the three — year window, so long as the copyright owner did not discover — and reasonably could not have discovered — the infringement before the commencement of the three-year limitation period. Because Polar Bear did not discover Timex's infringement until within three years of filing suit, Polar Bear may recover damages for infringement that occurred outside of the three-year window."

Here is a Third Circuit court case from 2009 adopting the discovery rule (first time they ruled on which rule they use) and rejecting that you can't get damages from infringement occurring outside of the three year window from when you filed the suit.

http://www.ca3.uscourts.gov/opinarch/082007p.pdf

73

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 21, 2010, 09:48:37 PM »

The issue is relevant for the reason I explained earlier. It goes to the issue of calculating damages.

"image posted Jan 1, 2000 and image taken down Jan 1, 2011. Let's say you sue Jan 1, 2012. All courts would allow damages back to Jan 1, 2009 since under either rule those claims are not time barred by the 3-year SOL. Whether you can go back further depends on the court, which rule it uses to define the date the "claim accrued" and the facts and circumstances known to the plaintiff. "

So if the infringement extends beyond a period of three years it is relevant.

Directly at odds with this statement, by the way:

Oscar : "Also for folks who have the images up for 4,5, 6 years whatever, the image companies cannot get more than a maximum of three years worth of damage."

PS, the law review article is old (case law since then) plus it's just a law review article.  Here is a more recent one for you. They are just articles though, they aren't law obviously. Often they are authored by students.

http://iplj.net/blog/wp-content/uploads/2009/09/Note-DISCOVERING-INJURY-THE-CONFUSED-STATE-OF-THE-STATUTE-OF-LIMITATIONS-FOR-FEDERAL-COPYRIGHT-INFRINGEMENT.pdf

74

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 21, 2010, 12:43:16 AM »

I'm not trying to score points.

But there is simply nothing vague about the fact that the courts are split as to when a claim accrues under 507(b). And if you were briefing a court (or a client for that matter) I doubt you'd ignore the fact that there is law contrary to how think it should be resolved.  How a court applying the discovery rule might look at a stock agency in this particular position may be unclear.  That the discovery rule, if used, can push the date of accrual of a claim back beyond three years is not.

75

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 20, 2010, 09:34:35 PM »

In Meunch a number of claims were registered in a timely manner and survived the Judges order (I believe registered directly by the photographers). The defense is trying to get rid of those claims as well. Using the SOL.

If the law is as you stated it, please explain why the Muench defense spent pages of arguments to convince the Judge that the "injury rule" should be applied to determine the accrual date of those claims ? If what you wrote is accurate it would be a non-issue. It always runs from the date of the infringement.

(Incidentally, the court put off ruling on the issue until completion of discovery as to the dates any infringement occurred.)