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Messages - Engel Nyst

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1

If the image was displayed from your server several years ago , and for less than one year, then it might be passed the statute of limitations already.

The rule is: for an (alleged) infringement of a copyright, the copyright owner has a claim against you for 3 years since it happened. In the best case for them, count those 3 years from the moment you took down the image from public view.

If the image was taken down from public view more than 3 years ago, then they have pretty much no chance against you (imo). Because they must have found it with a bot scanning the site, and if it was entirely private not only they couldn't find it, but also there's no provable gain you make from it, nor harm to them.

PS: make sure you do remove it completely either way.
(quick writing on mobile)

FALSE...the statute runs 3 years from "date of discovery"..always use the date of the first demand letter to guage the SOL...

You're correct, from discovery. I didn't mean to imply it is not, but to say that if the description of the OP is accurate, that is, if the image was publicly available several years ago, and for less than one year - then it wasn't available anymore from his/her server -, then it couldn't have been discovered now.

I remember server logs with picscout and such bots, that parse directories, sometimes from an address that discloses that there's a "case number" associated with the image, and sometimes without. Sometimes Getty immediately sent letter, sometimes - IIRC - they did not send anything for a while, despite that logs show that picscout read the image, and/or the directory where it was.

If it was me, I would not go for the date they send letter, but from the last date they must have had the information.

That said, your guess is likely correct. I trust your experience in these cases tells you that the OP probably says "private" but means publicly accessible just not on their web pages. In that case, indeed picscout might have seen the image recently, somewhere in a forgotten directory that nobody but bots care about. In that case however, it is likely the OP doesn't profit from it, doesn't use it for financial gain, heck it's forgotten in a corner. I think they can use that to understand and negotiate low damages if any.

2

Gee, that's a real shame.

I only wish that more Bar Associations and judges will take actions like these to rid the legal field of those who don't deserve the right to practice law.

Here we are, several more months later, and as I'm sure you know by now, the wheels of justice still turn: after both Steele and Hansmeier were indicted, Steele plead guilty, incriminating Hansmeier even worse.

An unbelievable and really good read, the indictment (heck, this saga really went on for so long!), and Steele's pleading guilty is plainly copying a lot of it, accepting it as feds wrote it.

https://www.popehat.com/2017/03/06/prenda-saga-update-john-steele-pleads-guilty-admits-entire-scheme/

Ken White's ending stuck with me:
The wheels grind slowly, my friends, but they do grind.

3
Getty Images Letter Forum / Re: No Getty Ownership?
« on: March 20, 2017, 02:16:05 PM »
1) absolutely. There are reports of images that former contributors to Getty took down from Getty, and Getty is still making extortion letters money on them. There are public domain images that anyone can display as long as they please, that Getty sends scare demands on. And so on.
Maybe yours is not one of them, and maybe it is. Ownership is definitely relevant.

2) many people have done negotiations way down, many have not. Your choice.

3) same as 2). It is possible, but not certain, that the photographer buys all the crap that Getty says. It is also possible they don't know Getty is making money in their name. (Money they don't see)

4
It is requesting I pay $570 for (mistakenly) posting one of their small images several years ago.  It was live on my site for probably less than a year before I made it private as the service offering wasn't selling.

If the image was displayed from your server several years ago , and for less than one year, then it might be passed the statute of limitations already.

The rule is: for an (alleged) infringement of a copyright, the copyright owner has a claim against you for 3 years since it happened. In the best case for them, count those 3 years from the moment you took down the image from public view.

If the image was taken down from public view more than 3 years ago, then they have pretty much no chance against you (imo). Because they must have found it with a bot scanning the site, and if it was entirely private not only they couldn't find it, but also there's no provable gain you make from it, nor harm to them.

PS: make sure you do remove it completely either way.
(quick writing on mobile)

5
Legal Controversies Forum / Short history of copyright
« on: September 21, 2016, 08:47:11 PM »
This old post of stinger's made me think. It's not alone, many people ask similarly, how come an image is under copyright if it had no notice. And the answer, of course, is 'if it has no notice, it doesn't mean it's public domain'. Which is correct today. But there's one thing I want to say: in US, this has become true in the last few decades. People's assumption that you need notice for copyright used to be true, for hundreds of years of copyright law.

Here is a timeline, so we can see what happened.[1]

Pre-1790: English law, statute of Anne
In order to secure a copyright, it
- required registration
- required deposit of copies
- required notice
.

1790: First copyright act
- required registration
- required deposit of copies

- didn't require notice on all copies, but it required running announcements for 4 weeks in newspapers, with the work and author.

All the works for which any one requirement wasn't fulfilled, fell in the public domain.

1802 - amendment
- required registration
- required deposit of copies

- required running announcements for 4 weeks in newspapers, with the work and author.
- required copyright notice
- false notice was also punishable.
($100 fine, while damages for infringement were $1 per copy)

1831 - major revision
- required registration
- required deposit of copies
- required notice on all copies.

(gave up announcement to the public, in newspapers, for the new claim of copyright)

1865 - amendment
- added protection of photographs
Requirements unchanged.

1870 - major revision
- required registration
- required deposit of copies
- required notice as prerequisite to infringement actions
.

1897 - amendments
- required registration
- required deposit of copies
- required notice as prerequisite to infringement actions
- false notice punishable, including fraudulent copyright notice over public domain works.


1909 copyright act
- required registration
- required deposit of copies
- required notice.


Copyright started only at first publication with notice. First publication without notice = public domain.

1976 - current copyright act, first version
- required notice, though with some flexibility for inadvertent publishing without notice
- didn't require registration and deposit of copies anymore, but for statutory damages they were mandatory.


1988 - amendment, Berne convention implementation act
- didn't require notice anymore.
- double the statutory damages.

Berne implementation act became effective in 1989.

So, here we are. When stinger's lawyers told him decades ago to be careful of works falling into public domain if without notices (I assume), they were right. The law changed within our generation. It was true or close enough to true for about 200 years in US, and it became false about 25 years ago.

Look at these numbers. 200 years versus 25, is, to me, mind boggling. The assumptions built on how you obtain or prove copyright went upside down in one generation. It is extremely interesting, and in my opinion, the notice requirement has shaped the cultural behaviors and understanding. Very recently, I read a pre-publication version of a law article on this exact issue, What Notice Did, where the author, a law professor, says "many   Americans   are   unaware   [that copyright is now automatic], believing   instead   that registration  and  copyright  notice  are  required  to  secure a copyright". Not only non-lawyers, she even adds: (my emphasis)
Quote
When  I  presented  an  early  version  of  this  project  at  a  faculty  lunch,  I  began  by explaining  that  while  copyright  protection  is  now  automatic,  U.S.  law  used  to  require publication, notice, and registration in order to secure a copyright. My colleagues, brilliant lawyers  all  and  most  of  them  too  young  to  have  run  into  copyright  law  before  1976, expressed great surprise that copyright protection no longer required publication, notice, or registration.

Of course, I would say, people don't know. Notice used to mean something, and something essential, and it's only within our generation that Congress changed it to mean squat. And with it, the idea of infringing behavior, because behaviors that weren't infringing became infringing, in 1978/1989, and, there's no good way anymore to know who can license the work. As for innocent infringement, what can I say, that too changed with it.

It's necessary, of course, to tell people that now the behavior of copying images found without notice is infringing if the images are under copyright.[2] Just it seems worth to note:
- now you can't tell which is under copyright and which isn't! Notice did serve that much: notification to people of a claim of it. Observe registration isn't required either, though useful; deposit copies are not public, and not even identification of the work/author is.
- it might not be surprising to those of you who saw me criticizing Getty lately, that I would be happy to see the law bring back the penalties for fraudulent copyright notices over public domain works.
- it's odd to see the righteous tone of extortion letters (and Getty/LCS FAQs etc), who patronize people as if they're guilty for daring to think that copyright wouldn't exist without notices, when most of US copyright law history threw such works in the public domain. And, according to Prof. Litman, even lawyers don't always know what's up with that.
- I agree with the idea I've seen here multiple times, that the law should make innocent infringement have zero damages. At least that.

[1] Main source http://digital-law-online.info/patry/patry5.html
[2] Unless fair use or de minimis, or a license exists - or fall into one of the other statutory limitations.

6
Getty Images Letter Forum / Re: new image bot/spider/scraper
« on: September 21, 2016, 12:09:42 PM »
I know it's an old topic, just a note about the technical matter here.

PicScout can't look at images without copying them on their servers. It has to download the images.

For example, the technical documentation of TinEye, a similar software, says:
https://services.tineye.com/developers/matchengine/methods/compare.html
Quote
If you are comparing by image or filepath then operations are performed in the order in which they are received. If you are comparing by URL then the images are downloaded before the operations go into the queue.

The "operations" may also involve (additional) copying into RAM, but we can ignore that. In order to operate however, all these bots/crawlers first download the images.

I don't question it's fair use, though; just about the technical aspect of it.

7
Getty Images Letter Forum / Re: Judge Rakoff
« on: September 21, 2016, 09:06:29 AM »
Quick timeline:

2000-2003

In some of the MP3 series of cases, judge Rakoff held that, given the law as it is, retroactive licenses from a co-owner of the copyright are fine, and they extinguish claims of infringement from another co-owner.

Copyright.Net v. MP3.com, and
Country Road Music v. MP3. Com.

For example,
Quote
the unambiguous language of this release creates a retroactive reproduction license that cures any past infringement by MP3.com of these works.

It seems clear he accepted it, as that was the law - there were some precedent cases already.

2007
The Davis v. Blige case in the Second Circuit held that between co-owners, no there can't be a retroactive license or transfer done after an infringement occurs. The court didn't decide only that, though; it also stated its conclusions in broad language, which sounds like it applies to all situations, sole ownership and co-ownership, not only co-ownership.

Such as,
Quote
Licenses and assignments [...] are prospective.

2016
In the Palmer/Kane v Rosen case, judge Rakoff takes this language to mean what it says: that there are no retroactive licenses as a matter of law in the Second. In sole ownership situations, as well as any.
Quote
what Davis described as its holding β€” "that a license or assignment in copyright can only act prospectively" β€”
[...] is unambiguous and the result of full judicial consideration.

8
Getty Images Letter Forum / Re: Judge Rakoff
« on: September 20, 2016, 08:48:59 PM »
In Cammeby's v Affiliated and Alliant, the judge writes:
Quote
The resolution of the pending motion seeking judgment as a matter of law or a new trial is long overdue, but in one respect it presents a close call that has given the Court much hesitation. Hamlet, however, is not a good model for a judge (or, perhaps, anyone else), and so the Court hereby rules, and grants the motion in part β€” though still not without hesitation.

He granted the motion for a new trial, after a jury trial that decided some of the issues, because one issue remained, where instructions for the jury didn't fully express NY law on the matter.

9
Getty Images Letter Forum / Re: Settle with the copyright holder
« on: September 20, 2016, 03:04:48 PM »
I'll note two things. First, I think that as a matter of copyright law, the decision is incorrect. Just my opinion, mind you, and without getting into all reasons, here is one small example: it seems clear to me that the court didn't look at it as a copyright matter, where a non-exclusive license can be oral and can be implied from conduct. From the court's description of facts and "persuasive" showing, I'd say there was an implied non-exclusive license from Corbis to the user. Of course existence of implied licensing is up to court's interpretation, but my point is the court didn't even try to interpret it as such, because it said that it can't; that under Davis, there are no retroactive licenses whatsoever anyway. Everything relied on that.

If we'll see an appeal, we'll know more. After all the decision will stand or it won't.  If it doesn't, we're the same place as before. If it stands, it will mean that the law is changing. (I hope Second Circuit won't muck it up...)

Let me assume the decision will stand, and there are no retroactive licenses. Second point is an yes or no question:
- can a licensing entity, no (c) owner, still make any sort of settlement over a past unauthorized use?

I re-read the opinion and the previous Young-Wolff v Wiley, Spinelli v NFL, and Davis, and well, I'd say nope, no way.

If this stands, and the others are reversed, then it appears that there cannot be any valid settlements for past uses, unless the owner makes them. (I seriously don't get how the court thought that would work, where there are industries out there where retroactive licensing is a norm, but hey.)

I'm tempted to say: well, you know what, bring it.

If this was true, it would spell the end of most and worst of copyright trolls: those entities that came to life only to "enforce valuable intellectual property rights" over works they never created, they don't own, they don't necessarily bring payments to authors or not most of payments they make, they're not legal representatives of, only "copyright enforcement agents".

Look at LCS - "creations are valuable" guys. Creations are valuable indeed, but Getty wanted to separate this entity from itself in order to do only enforcement. I don't think LCS department/subsidiary has any copyrights, they're intending to only act for their "customers". The website doesn't even display images, except logos.
The FAQ says:
"While we appreciate the removal of the represented imagery from your website, removal of the images alone does not resolve the matter. Our customers are entitled to compensation for the past usage of their imagery. On behalf of customers, we are seeking a settlement payment for past unlicensed use of the imagery, and would be happy to work with you on correctly licensing any future use."

Under this decision, the part with "compensation for the past usage" becomes moot. They can't seek a payment for past unlicensed use, themselves, because they're unable to give a retroactive license and they're unable to enter a contract where they would release the accrued claims of the copyright holder who's not a party. At most, they can facilitate contact between the alleged infringing user and the copyright holder.

Make them a coffee or something, until *they* settle.  ;D

Hey, one can dream.

10
Getty Images Letter Forum / Re: Agence France Presse
« on: September 18, 2016, 07:25:33 PM »
sholtz, if you decide to write to them, the first thing ever to clarify is if they have copyright over the image. Make them prove it. Some word their letter like: please prove registration of the image; if not, don't bother me anymore. (in essence)

That's only the first thing, but it might be the essential. Can also make an offer if you like. It seems it might matter if it ever gets to a court, a good faith attempt to negotiate, just make sure it's a fair market value for the image (which isn't necessarily how much they ask for)

11
Getty Images Letter Forum / Re: Judge Rakoff
« on: September 18, 2016, 06:54:46 PM »
Speaking of textualism, same goes for his decision on retroactive licenses, discussed in Palmer/Kane v Rosen. One thing was that Judge Rakoff seemed to believe that he had to rule this way, because the 2nd circuit has spoken.

Quote
this Court is not of the view that it has the discretion to narrow the scope of Davis's holding on the basis that Davis was animated by a set of considerations that are arguably not relevant here. That, of course, begs the question whether what Davis described as its holding β€” "that a license or assignment in copyright can only act prospectively" β€” was truly its holding in the precedential sense. . .

Quote
The Second Circuit might one day limit the scope of Davis in the manner [defendant] seeks. But until such time, this Court cannot disregard Davis's categorical conclusion "that a license or assignment in copyright can only act prospectively.

I should note, as the decision itself does, that four (FOUR!) other district judges have interpreted Davis to not say "a license can only act prospectively" in all cases, but only in co-ownership context, or otherwise narrower.

12
Getty Images Letter Forum / Re: Settle with the copyright holder
« on: September 18, 2016, 06:00:49 PM »
Here is a list of relevant quotes from the two decisions on the issue.

From Davis v Blige:

"A settlement agreement can only waive or extinguish claims held by a settling owner"

"A settlement agreement between an injured owner and an injuring non-owner recognizes the unauthorized use while providing a remedy to the injured owner that is acceptable to all parties to the agreement."

"a settlement agreement is nothing more than a promise by [one party] to pay liquidated damages for past infringements in return for a dismissal of the infringement suit" (quoting 7th circuit)

"Licenses and assignments function differently from settlements and releases, and the use of the term "retroactive license" for "settlement" or "release" by the parties causes unnecessary confusion and potentially creates legal mischief. Settlements are generally retrospective and exclusively between the parties to the settlement β€” the unauthorized user and the owner;  and, absent clear language to the contrary, they are not licenses for future use.[...]
Licenses and assignments, however, are prospective; they permit use by a non-owner who would not otherwise have a right to use the property. "In its simplest form, a license means only leave to do a thing which the licensor would otherwise have a right to prevent." (quoting Western Elec. v Pacent, 2nd circuit)

"A retroactive license or assignment that purports to eliminate the accrued causes of action for infringement held by a co-owner who is not party to the license or agreement also violates the fundamental principle of contract law prohibiting the parties to a contract from binding nonparties. [...] Moreover, a co-owner who purports to convey not only his right to prosecute past infringements but also his co-owners' right to prosecute past infringements violates the basic rule that an owner cannot convey more than he owns. We have no doubt that [one owner] can release his own accrued claims of copyright infringement against [...] defendants, either orally or in writing. But we know of no authority to sanction his attempt to release any rights [another owner] has against [defendants], for they are not [the first owner]'s to release."

"None of what we say above should be read as preventing an owner and an infringer from settling infringement claims among themselves. See ABKCO Music, Inc. v. Harrisongs Music, (2d Cir.1983) (noting in a copyright infringement case, that "courts favor the policy of encouraging voluntary settlement of disputes")"

"An owner who wishes to release unilaterally his own accrued claims may do so using whatever language he chooses β€” including by calling the negotiated settlement the proverbial 'banana' β€” but such an agreement cannot have the effect of eviscerating a co-owner's claims based on past copyright infringement, nor can it settle accrued claims held by co-owners who are not themselves parties to the agreement. Accordingly, we hold that a license or assignment in copyright can only act prospectively."

"Licenses in patent and copyright function similarly. . . and thus it is appropriate to consider copyright licensing, like patent licensing, prospective in nature."

"The grant of a license by one co-owner cannot deprive the other co-owner of the right to sue for accrued damages for past infringement. That would require a release, not a license, and the rights of a patent co-owner, absent agreement to the contrary, do not extend to granting a release that would defeat an action by other co-owners to recover damages for past infringement." (quoted from Federal Circuit, in patent area)

"there is authority to the effect that the concepts of both royalty and license are necessarily prospective, rendering a `retroactive royalty agreement' a legal nullity" (quoted from a Massachusetts district court, in patent area)

"Retroactive Licenses and Transfers Are Invalid"


From Palmer/Kane v. Rosen

"An agreement between a licensing agent and a third party can, as a matter of law, retroactively cure claims of infringement asserted against that third party by the exclusive license holder."); Spinelli v. Nat'l Football League, (S.D.N.Y. 2015) [...] But this Court is constrained to disagree with these opinions.
[...]
As a threshold matter, this Court is not of the view that it has the discretion to narrow the scope of Davis's holding on the basis that Davis was animated by a set of considerations that are arguably not relevant here. That, of course, begs the question whether what Davis described as its holding β€” "that a license or assignment in copyright can only act prospectively" β€” was truly its holding in the precedential sense. . . While the metaphysical line between dictum and holding "is not always easy to draw," `where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.'"

"As for 'the need for predictability and certainty,' many copyrights owners contract with a licensing agent to license their works, as plaintiff did with Corbis here. If a licensing agent may license works retroactively, the sole copyright holder is not all that differently situated β€” in terms of its ability to "reliably and definitively determine if and when an infringement occurred" β€” than a copyright co-owner whose infringement claim may be extinguished by another co-owner's action. The licensing agent is of course acting as the copyright holder's agent, but the copyright holder is still placed in the unenviable position of being generally unable to know, with certainty, that its infringement claim will not be extinguished by the grant of a retroactive license.

As for the desirability of discouraging infringement, it is difficult to see how the availability of a retroactive license does not "lower the cost of infringement to infringers" even in the sole-ownership context, particularly given that the licensing fees that have been contractually predetermined between the infringer and the licensing agency will often be dwarfed by the statutory damages that would have been available in an infringement action. see 17 U.S.C. Β§ 504(c) (providing for statutory damages of up to $30,000 per work infringed in general, and up to $150,000 per work infringed if the Court finds willful infringement). Thus, while these two policy considerations might be more stark in the context of copyright co-ownership, they are at play in the sole-ownership context as well."

"The Second Circuit might one day limit the scope of Davis in the manner [defendant] seeks. But until such time, this Court cannot disregard Davis's categorical conclusion "that a license or assignment in copyright can only act prospectively."

13
Getty Images Letter Forum / Settle with the copyright holder
« on: September 18, 2016, 02:25:55 PM »
[Amanda wrote about this last year. Her first link is to the Davis v Binge case, which started the mess. But until now, it seemed like that decision would remain confined to its facts. It didn't remain; now a new decision extended its reach. I was thinking to write about the new one since it came out, but I was confused. Well, I'm still confused and decided to write to you all.]

In a recent case in the Second circuit, Palmer/Kane v. Rosen, the judge decided that in this circuit, there are no retroactive licenses. His decision is based on the 2007 case, Davis v. Blige, where the Second Circuit held that:
"a license or assignment in copyright can only act prospectively".

So the judge says, OK, in this circuit a license can only be prospective. Not retroactive. Can't give a license for past infringement.

On Davis v. Blige (2007)


However, the Davis case was unusual, because it involved two co-owners. That's rather rare, at least it rarely lands in courts, and it leads sometimes to uncommon situations. It's sort of understandable that a court may feel that when a co-owner sues someone for infringement, and the other co-owner comes in half through the trial and gives them a license for past use, erasing the suit without questions asked, something is weird. Co-owners can license the work independently of each other, and only submit a share of profits to the other co-owner. So it seemed like this could happen: for retroactive settling of claims, it could also happen that any of them settles and the other is "out of luck". So, out of some equitable feeling, in that case the court decided that a co-owner can't give a retroactive license or transfer to the alleged infringer. So the infringer was still liable to the other owner.

Now I didn't think much at that 2007 case, because co-ownership is an unusual occurrence in copyright cases. So I thought it's only for that weird detail, between co-owners, and won't affect all the rest. But on august 31, 2016, yes, that's now, judge Rakoff applied that case in a case with Corbis, Palmer/Kane and a publisher infringing photos: the Palmer/Kane v. Rosen case.

Recent application in Palmer/Kane v Rosen

Judge says:

the Second Circuit "made clear that its holding extended beyond the context of co-ownership." N. Jersey Media Grp. Inc. v. Pirro (S.D.N.Y. Mar. 9, 2015) (rejecting identical argument because the Second Circuit's opinion in Davis "admits of no such limitation"). It did so by repeatedly casting its holding in broad terms, not limited to any one particular set of facts. See Davis, 505 F.3d at 103 ("Licenses. . . are prospective. . . ."); see id. at 104 ("We hold that a license or assignment in copyright can only act prospectively."); see id. at 104 ("Licenses in patent and copyright function similarly. . . and thus it is appropriate to consider copyright licensing, like patent licensing, prospective in nature."); see id. at 104-05 ("There is little from a policy perspective to recommend a rule that allows retroactive licenses or assignments, and there are two strong reasons disfavoring them. . . .").

Rosen tried to argue that Corbis, the agent of the copyright owner, could have given it a license for past use. Court says no.

Read that again. Corbis couldn't have 'excused' past infringement. That was a copyright matter, says the court, and only a settlement with the owner could release the claim.

A good presentation of Judge Rakoff's decision is here: If It’s Retroactive It’s Not a β€œLicense”.

I extract from the decision, first justification for not permitting non-owners to settle:
As for "the need for predictability and certainty," many copyrights owners contract with a licensing agent to license their works, as plaintiff did with Corbis here. If a licensing agent may license works retroactively, the sole copyright holder is not all that differently situated β€” in terms of its ability to "reliably and definitively determine if and when an infringement occurred" β€” than a copyright co-owner whose infringement claim may be extinguished by another co-owner's action. The licensing agent is of course acting as the copyright holder's agent, but the copyright holder is still placed in the unenviable position of being generally unable to know, with certainty, that its infringement claim will not be extinguished by the grant of a retroactive license. ("If retroactive transfers and licenses were permissible, one could never reliably and definitively determine if and when an infringement occurred, because an infringement could be `undone' by the very sort of maneuver attempted by defendants in this case.").

From which, the judge thinks all retroactive licenses are unacceptable, those given by agents included, in order to preserve the right of the copyright holder to sue, and to know that his claims for past infringements won't just disappear when the agent "undoes" them.

Second justification:
As for the desirability of discouraging infringement, it is difficult to see how the availability of a retroactive license does not "lower[] the cost of infringement to infringers" even in the sole-ownership context, particularly given that the licensing fees that have been contractually predetermined between the infringer and the licensing agency will often be dwarfed by the statutory damages that would have been available in an infringement action.

In other words, the court wants to preserve the right of the copyright holder to sue, no matter the "license" that the agent gives retroactively.

On the other hand,
"an owner who wishes to release unilaterally his own accrued claims may do so using whatever language he chooses β€” including by calling the negotiated settlement the proverbial `banana'".

In other words, the copyright holder can waive his right to sue, no matter how we call it, "license" or settlement or contract or, apparently, banana.


What does that mean?


I still think about it. It's either bad news or good news, can't decide. But it seems important. Here's the thing: in practical terms, I can think that a settlement for a past infringing use can give me one of two things: (or both)

  • a license for that use; it would be a retroactive license
  • a waiver of the copyright holder's right to sue for that use.

If it's (1), it implies (2) of course. Some may say the two are just saying the same thing in different words. What I want, is obviously (2), it's that I won't be sued over it. I sure as hell wouldn't pay a settlement if the copyright holder still keeps the right to sue me.

It seems like Getty, Righthaven, and all these licensing agents, can't give *ANY* of the two now. They can't give a retroactive license, because apparently in the Second Circuit, they no longer exist. They can't waive the copyright holder's right to sue, because they're not a copyright holder and they can't sue anyway. Some learned the hard way that without being the owner of exclusive rights, they have no right to sue and can't.

(Just musing over it: the above paragraph can't be entirely true - or I can't wrap my head around how does the judge think that would work; it might be that some formulation of an agent abilities in their contract with the owner would give them the right to bind the copyright holder, so sort of give me (2) - if they're an agent after all. But that'd be a terrible idea. It was easy to understand that they can give a license (for whatever use), when they're doing that all the time, look at their website selling licenses all day. Now it turns out that they can't do that for past use. It's unclear to me if they still can do any settlement, and if yes, how the settlement AND their ability to give it has to be worded. I wouldn't trust it. I'm not even sure they can make a settlement. On the other hand, something isn't right: it can't be that they're indeed a licensing agent and sign that settlement, and a court would allow the copyright holder to shrug at it and sue me anyway; it's common sense I can prove I settled the issue. (But then why not call it a retroactive license?)

Anyway there is one conclusion I get from this mess: settle with the copyright holder. Not these licensing entities.

Really.

These licensing "agents" don't have his right to sue (2), and can't give a license for past use (1). They're freaking useless, and maybe that's not a bad thing.

Of course if these licensing agents are actually copyright holders/exclusive licensees, then yes. But if not, they're not even able to give a license anymore.

Please let me know if I'm wrong and where. This thing is happening in the Second Circuit, and I think is that it's getting more risky to pay up some entity out of the nowhere who just says it "represents the photographer". These entities might even ignore it today, but it's black on white: they no longer have the right to give licenses for past use.


PS: I note that I was sure that in the Ninth retroactive licenses were fine. At a cursory search, I get that they still are. This case might be the odd thing, but I don't know. At the end of the day, it might be a bloody good thing. Obviously the copyright holder can waive their claims, so as long as that's true, why not just bypass these entities?

PS2: If you want to delve into this and how strange these decisions are, this is a good write-up I learned from, a while ago, on the Davis decision: Second Circuit goes to dark side, written by Patry, author of Patry on Copyright treatise.

14
Getty Images Letter Forum / Re: Judge Rakoff
« on: September 17, 2016, 10:56:38 PM »
I don't know if that's the case lol but the incursion is fun. Rakoff appears to be a textualist, one extremely attentive to formalistic details and not easily swayed by stuff even impressive facts - usually. A recent case, on unenforceable contract with Uber, seems the exception. His decision there was called "judicial activism".

Hard to guess if that's good or bad for our case.

15
Getty Images Letter Forum / Re: Judge Rakoff
« on: September 17, 2016, 08:51:30 PM »

White v West Publishing

This is a lawyer suing West for copyright infringement for copying their briefs into its legal database. (It's West as in westlaw service). Rakoff finds it's a fair use.

The briefs were filed publicly into a former case, so they were available in Pacer. They weren't unpublished, which might have mattered.

Judge makes short work of the claim, it's easy fair use particularly because it's transformative use (they're not to provide legal service to a client, but part of a database for research, and stuff like adding keywords, jurisdiction, editing, "adds something new, with a further purpose or different character" as noted by a Supreme Court decision).

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