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1

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)

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.

2

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 “License”.

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 — in terms of its ability to "reliably and definitively determine if and when an infringement occurred" — 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 — 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.

3

Getty Images Letter Forum / Judge Rakoff

« on: September 15, 2016, 05:37:49 PM »

I've said in the past that it would be interesting to see what positions has judge Rakoff taken in other cases. Since then, Getty has well availed itself of a past case of his, in its answer to Highsmith. Might as well look ourselves too.

Judge Rakoff is the judge in Highsmith v Getty. An article about him:

http://www.abajournal.com/magazine/article/judge_jed_rakoffs_stance_on_the_sec_deals_draws_fire_praiseand_change

Meyer v Kalanick and Uber

I knew this one, just didn't realize it was the same judge. It's a recent decision he made, to the surprise of a number of commentators (it seems damn right to me!): he held unenforceable the online contract between Uber and a customer, Meyer, because customers didn't know well enough what the heck is it that they're "agreeing" with, merely "by registering":

http://blogs.reuters.com/alison-frankel/2016/08/01/judge-rakoffs-soapbox-on-uber-arbitration-and-fair-play/

Since the late 18th century, the constitution of the United States and the constitutions or laws of the several states have guaranteed U.S. citizens the right to a jury trial,” he wrote. “This most precious and fundamental right can be waived only if the waiver is knowing and voluntary, with the courts ‘indulging every reasonable presumption against waiver.’ But in the world of the Internet, ordinary consumers are deemed to have regularly waived this right, and, indeed, to have given up their access to the courts altogether, because they supposedly agreed to lengthy ‘terms and conditions’ that they had no realistic power to negotiate or contest and often were not even aware of.

Full decision here:
https://scholar.google.se/scholar_case?case=13002923224554771362

4

Legal Controversies Forum / Prenda's lawyer loses his license to practice law

« on: September 15, 2016, 02:15:55 PM »

Just saw this:

https://www.techdirt.com/articles/20160913/17090435512/prendas-paul-hansmeier-loses-his-law-license-wont-be-filing-bogus-ada-lawsuits-now.shtml

5

Getty Images Letter Forum / Getty answered to Carol Highsmith

« on: September 08, 2016, 01:26:50 PM »

Source:
http://www.latimes.com/business/la-fi-getty-images-carol-highsmith-20160907-snap-story.html

The article mentions that Alamy filed separately an answer too.

I didn't read the answers yet; but as expected it's clear Getty went the route to attack her copyright in the photos. From the article:

In its court papers, Getty Images noted that publishers charge money for their copies of novels by Charles Dickens or for Shakespeare plays even though those are in the public domain.

Sure thing, except that's not what Getty is doing.
So can people charge for CC-BY or CC-BY-SA works, they just don't call the charge a "copyright license" and absolutely don't claim some exclusive rights somewhere in them. LCS/Getty does that with CC licensed works too:

https://www.2600.com/content/2600-accused-using-unauthorized-ink-splotches

And, how about pursuing "infringements"?

The company’s lawyers said the lawsuit was “an attempt to regain some measure of legal protection for the Highsmith photos that plaintiff Highsmith relinquished years ago.”

Yeah, as I expected. This will be the hurdle to clear, it's because of the wording of the instrument of gift that Getty can make an argument here.

EDITED to add: if anyone has the answers filed by Getty and Alamy, please post them.

6

Getty Images Letter Forum / Palmer/Kane v Rosen Book, registration requirements not fulfilled

« on: September 05, 2016, 11:35:56 AM »

A fairly interesting decision in Palmer/Kane LLC v. Rosen Book Works LLC, filed a few days ago. As the decision notes, Palmer/Kane licenses its stock photography through licensing agencies such as non-parties Corbis Corporation and Alamy Limited.

The first part of the decision discusses the ways in which Palmer/Kane was registering a bunch of images, and finds most of them unsufficient:

http://propertyintangible.com/wp-content/uploads/2016/09/Palmer-Kane-LLC-v-Rosen-Book-Works-LLC.pdf

The main issue is that Corbis registered multiple images as once, and, when it did so, it didn't fulfill conditions for any of the two possibilities: (1) group registration of multiple individual works, or (2) registration of a compilation of individual elements/works.
Group registration has a bunch of details that have to be fulfilled, for it to be properly done, including in how long it is filed after publishing the works and others. Palmer/Kane, or its agent Corbis, now Getty, didn't fulfill those, and argued that it didn't need to, because it actually wanted to register the images as a compilation. But that doesn't work for a formal reason: copyright office requires such registration to specifically write to a field on the form, that it's a compilation..

Only a couple of images, out of 11, survive this step, and will be on trial for infringement. All the rest of images failed, for unsuitable registration.

7

Getty Images Letter Forum / Highsmith v Getty, first amended complaint was filed

« on: August 22, 2016, 03:55:09 PM »

As the title says: Carol Highsmith's team amended the complaint and submitted the new one. The text of the amended complaint is here:
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2265&context=historical

This is now 60 thoughtful pages. It lists more causes of action (good!), in particular a Lanham Act claim and some state law claims, and, it embeds now things we've been talking about here. I'm impressed. Hell, who said we can't help a right cause as mere individuals sharing/researching/expressing our experience on the internet? We sure can.

For example, the amended complaint contains Nancy Wollf's public statements we discussed, and, it contains the facts we discussed in response to that, like the misleading appearance in the eyes of the innocent user that they "need" a license they don't actually need. The amended complaint similarly includes the claims that images are "Rights Managed" by Getty, and it also uses the little ironic fact that Getty's agreement for the images threatens users with 100% more charges if they don't credit... Getty.

Oh, and also! Matthew and Robert talked in the topic linked above about Nancy's history, and position, but wait. I didn't quite understand that Nancy Wollf is *LCS/Alamy's counsel* in this trial. Did you know that?

It's at the end of the amended complaint, where it says it was sent to counsel of the opposing party.

It's not the same thing with a lawyer working for the trade association of these companies, though of course that means bias too. Being their counsel in trial is more than that. I thought she should have PUBLICLY disclosed such position, when she published a blog.

I don't intend an analysis of the amendments now, just to let you know about its filing.

8

Legal Controversies Forum / BMG v Cox, losing DMCA safe harbor for insufficient policy on infringers

« on: August 20, 2016, 03:18:21 PM »

In this case, BMG sued Cox for infringements made by Cox's users, and is winning, at district court level. The essence of the story is that Cox apparently knew that some users were repeat infringers, and didn't hesitate to ban them but also to reinstate their accounts. The emails from Cox employees seem what was most damning here. Examples quoted in the articles below:

http://arstechnica.com/tech-policy/2015/12/rightscorp-wins-landmark-ruling-cox-hit-with-25m-verdict-in-copyright-case/

http://the1709blog.blogspot.se/2016/08/judgment-against-cox-opens-up-isp.html

Apparently, Rightscorp was BMG's enforcement agent, and reported many of these user accounts; while Cox seems to have conformed to the *letter* of the DMCA, and take down material, then after repeated take downs, suspend accounts, and then, it also reinstated those accounts. It seems it was doing so while talking internally about a "semi unwritten policy" of reinstating any alleged repeat infringer.

The latest of these links presents some declarations of Rightscorp, which wasn't a party of this case, but which touts the win as a win of what they "kept saying":

"For nearly five years, Rightscorp has warned US internet service providers (ISPs) that they risk of incurring huge liabilities if they fail to implement and enforce policies under which they terminate the accounts of their subscribers who repeatedly infringe copyrights." adding "Over that time, many ISPs have taken the position that it was simply impossible for an ISP to be held liable for its subscribers’ actions – even when the ISP had been put on notice of massive infringements and supplied with detailed evidence.  "Although Rightscorp was not a party in this case, we are delighted with the outcome. The Federal District Court declared the liability of ISPs to be precisely what Rightscorp has been saying it is for years," said Rightscorp CEO Christopher Sabec.

The first decision was in 2015:
http://cyberlaw.stanford.edu/blog/2015/12/bmg-v-cox-high-cost-losing-safe-harbor

9

Legal Controversies Forum / Friedman v Live Nation appeal

« on: August 19, 2016, 11:15:19 PM »

An appeal decision was just published:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/18/14-55302.pdf

I don't know this case, and have only skimmed it, so can't comment yet. Maybe this case was known to you?

10

Getty Images Letter Forum / Article: "Everyone's the competition"

« on: August 19, 2016, 05:31:31 PM »

A good read on the web:
http://www.project-disco.org/intellectual-property/081916-shot-iphone-6-everyones-competition/

While professional photographers might not agree with everything and even when they do, they might hate it, the situation as presented in this article seems to me worth thinking about. It's pretty simple really. We have the tools to make ourselves "good enough" photos for a wide range of purposes. While those are not all purposes, they are only increasing with technology.

11

Getty Images Letter Forum / What Supreme Court is PhotoAttorney quoting?

« on: August 15, 2016, 04:18:11 PM »

In her Excuses, excuses article, Carolyn Wright says:

The courts have held that “When a party has (1) the right and ability to supervise or control the infringing activity; and (2) a direct financial benefit from that activity, the party is vicariously liable for the infringement.”  See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 418, 104 S.Ct. 774, 777 (1984).

I went to Sony v. Universal City Studios decision, and looked up the quoted phrases. To my surprise, I don't find them.

Please check out: "vicarious" appears only in several places, and none is the language "quoted" in the article.

I googled for the whole phrase: https://goo.gl/XO27Qp and all results seem to be from PhotoAttorney herself.

I googled for the last part of the phrase, to make sure: https://goo.gl/iklBN8 and all results are again from PhotoAttorney. If I insisted to look at all, two extra results were from completely different materials (something with agency law, not copyright, and surely not the Supreme Court).

Am I missing something here? It would be shocking if an attorney is publicly "quoting" the Supreme Court, with words they never said.

The Sony decision is well known, and I thought it's a curious idea to "quote" it to talk about vicarious infringement because it actually stands for the proposition that Sony *was not* liable for what users were doing with its device:
"If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory."
(this *IS* a real quote from Sony v. Universal, link above.)

12

Getty Images Letter Forum / Public domain v copyright liberal license (Highsmith v Getty)

« on: August 14, 2016, 07:25:40 PM »

I would like to post some thoughts, in no particular order, about what I think it's the main issue Carol Highsmith will encounter: as I noted in my first posts on this, Getty will claim (already does, as does DMLA) that Carol has put her work in the public domain with the instrument of gift.

Let me look at it in some detail.
"I, Carol Highsmith, (hereinafter: Donor), do hereby confirm that on March 11, 1988, I gave, granted, conveyed title in and set over to the United States of America for inclusion in the collections of the Library of Congress (hereinafter: Library) and for administration therein by the authorities thereof, a collection of 230 original 4x5 color transparencies and black and white negatives, and 230 color and black and white photoprints documenting the Willard Hotel in Washington, DC, to be known as the Carol M. Highsmith Archive (hereinafter: Archive)."

This says she "gave, granted, conveyed title in and set over to". This sounds like the kind of statement you make when you transfer copyrights to another person/company. Except for three things:
- the offer is made to "United States of America",
- the donation is further qualified "for inclusion in the collections of the [Library" - for a particular purpose,
- the offer is for physical stuff, like transparencies, though I'm not sure that makes a difference. (happy to be convinced otherwise)

One can almost understand up to here, that she tried to transfer title to the LoC, as representing closer the USA she intends to give it to.

"I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection."

This sounds like a public domain dedication. THIS will be the main sticking point for her opponent in the suit.

Part of the problem here might be: well, what the heck does this document mean? She gave title to LoC, then she makes some kind of public domain dedication, that's contradictory.

Immediately after this phrase, we have:
"1. Access. The entire Archive shall be made immediately available to researchers, scholars, and the general public at the discretion of the library."

It's a document between her and LoC, then it's an exchange of sorts: she gave something, and the LoC has to do something in return. (note the "shall")
Though it's kind of a curious "obligation": because the phrase also says, "at the discretion of the library". So it's up to the LoC in the end. (illusory term? Not sure.)

"2. Reproduction. Persons granted access to the Archive may procure single-copy reproductions of the works contained in the Archive, and video (analog) and/or optical disc (digital) copies may be made available to the public in general in accordance with the Library's rules and regulations governing the availability of such copies."

"Single-copy" language is surprising, and it helps Carol's wanted interpretation, because why single copy? If she only gave the right to a single copy reproduction to the people accessing the archive, that means she kept a certain control over the work.

Imagine the collection was in the public domain. What meaning would this language have? I don't really know? If it's public domain, then I can make as many copies as I like. OK, maybe that's not quite true, because we're talking here about physical copies that the Library will have to hand me.

Maybe it means that LoC has to give me ONE copy, but my conundrum continues, because if it's public domain, it's not clear to me what leverage does Carol have anymore to tell the library to give me one copy. (I'm probably looking at it the wrong way here). In fact, wait, it doesn't even say that: it says "persons ... MAY procure single-copy reproductions". Is this a phrase without effect if the works are public domain? If they're copyrighted, then it has an effect: the (c) holder gave the library the right to give copies to the public.

"The Library will request, through its standard procedures, that when material in the Archive is reproduced by those who have obtained reproductions credit be given as follows: The Library of Congress, Carol M. Highsmith Archive."

At my first reading of this phrase, I was puzzled by it, because it seemed to say that the LoC has to give credit and has to tell the public to give credit as well. That's not quite right unfortunately, it says "request", not "require". I don't believe Carol's opponents would miss that. But why does it say request? Well, if the works are deemed in the public domain, then of course it's "request": no one can require attribution for a public domain work. If the works are deemed copyrighted, then it might signal that the author didn't intend to force random users from the public to always give attribution, under pain of copyright infringement otherwise. (if you ever display the work without attribution, but didn't really mean to offend her or ignore her work, you can fix it later but you're not supposed to be pursued for that mistake; note that I can't read this like the user was allowed to claim falsely they own the work they do not own). Or, it might mean that the author didn't want to force the library to "require" anything from the users, since the library wasn't going to police it, no matter if she wanted to always receive attribution. Notice she doesn't say here what the public is supposed to do, she says what the Library is supposed to do: nudge the public to give attribution.

"For reasons of security, preservation, or service, the Library may, when consistent with its policies and in consideration of the national interest, reproduce, transcribe, and copy all or parts of the Archive whenever it has funds at its disposal for such purposes."

This is interesting, and supports Carol's wanted interpretation, because why isn't the Library free to reproduce whenever the heck it pleases? If the works are public domain, then what effect does this phrase have? I see none. If the works are copyrighted, then of course it has effect: it allows the library to make more copies for particular purposes.

Actually, one can interpret this as: the works are public domain, but Carol puts them in the public domain by this document, which may be read like a contract with LoC. Sort of. So, I can read this as "in exchange for Carol placing the works in the public domain in US, the LoC [who wants that to happen] promises to keep them safe, e.g. by making copies when safety requires". The problem with this interpretation is that the library isn't promising anything, is it? The document is signed by Carol (the two "parties" weren't even introduced at the start, we have only Carol, the donor, since it's a donation). To be sure, it's also signed by the library, but under the head "Accepted for the United States of America". And even if I try to read this phrase as an obligation of the LoC, it doesn't read like obliging LoC to anything. It *allows* LoC some things (reproduce/transcribe/copy for purposes of security, preservation, or service), but I don't see the obligation of LoC to do so. Note also that it allows LoC to do these things for particular purposes. One can argue it doesn't allow LoC do them for all purposes whatsoever.

"3. Use. The Library may use the Archive for its usual and customary archival, service, exhibition and publication purposes. The Library credit the Donor as cited above in Paragraph 2."

"The library may use [...] for its usual [...] purposes". OK, this seems to give the library the right to use the collection for some purposes, but I have to remind myself we're talking about physical objects. Did Carol also mean copyrights here, e.g. does this mean she also give some copyright rights necessary to do these things, if any? If the works are copyrighted, the answer should be yes, if any. If the works are public domain, then this still has a meaning: for physical works.

"4. Additions. Such other and related material as the Donor may from time to time donate to the United States of America for inclusion in the collections of the Library shall be governed by the terms of this Instrument of Gift or such written amendments as may hereafter be agreed upon between the Donor and the Library."

So, this is an agreement, because, while it is a donation, you want the LoC to accept the physical materials and make them available to the world.

Interpretation of this instrument

I think the court will need to interpret this agreement, and the interpretation is far from simple. The court can go in at least three directions:
(1) Carol gave a very liberal license to the LoC and everyone else in the world; she seems to want proper attribution
(2) Carol put the works in the public domain, in US and worldwide, in exchange for the LoC making them available
(3) Carol transferred her copyrights to the LoC or US gov, in exchange for the LoC making them available to the world. In this transfer she "cut" a license for the public to freely use the works, such that LoC can't take it away.

Carol's complaint obviously goes for interpretation (1). Getty clearly goes for interpretation (2).

The most important thing in this is that if the judge deems interpretation (1) or (3) correct, then Carol has a good case and will win most likely; but if the judge deems correct interpretation (2) then almost all her causes of action don't seem to stand. It's hard to imagine a starker contrast.

(I note quickly there seems to be a combination between DMCA sections that she could argue, but it's very problematic and I honestly doubt it's a good idea anyway)

This is why in my first topic on this I noted that there are *other* things she could argue. Easily! Fraud is the first to come to mind, if we look for the - seemingly - easiest.

13

Getty Images Letter Forum / DMLA makes a statement on Highsmith v Getty

« on: August 07, 2016, 01:26:14 PM »

DMLA is a trade association promoting the interests of digital images corporations, including Getty and Alamy, apparently. From its About page:

Working to insure the future of our industry
For over 60 year the Digital Media Licensing Association (DMLA), formerly known as PACA, has developed business standards, promoted ethical business practices and actively advocated copyright protection on behalf of its members. In this era of continuous change, we have remained an active community where vital information is shared and common interests are explored.

DMLA made a statement on the Highsmith v Getty/LCS/Alamy lawsuit:
http://blog.digitalmedialicensing.org/?p=3444
Their statement essentially argues that Carol Highsmith gave up copyright into the images, and thus stock image libraries are entitled to reproduce, distribute, sell them, and call that a purported "license".

I take below parts of that statement. I note first that Nancy Wolff, DMLA counsel, says Highsmith's photos are in the public domain. On the contrary, Carol in her complaint says that the photos are not in the public domain, but she retained copyright and offered the public the rights to free reproduction and display. But lets see about public domain.

CAN ANYONE USE PUBLIC DOMAIN IMAGES?
by Nancy Wolff, DMLA Counsel

Answer: YES, there are no restrictions on any use of public domain images, including making them available to users for a fee.
That's correct, for public domain images. The fee is not for a purported license, though. If there's no copyright, there are no copyright rights to license.

The purpose of limits on copyright is that the public domain benefits the public and serves the public good. Once a work is in the public domain, anyone can make a productive use of it, including commercializing the work. This applies to all works that can be under copyright, such as images, books and music. You can still buy a book of Shakespeare’s plays published by numerous publishers. Or you can go to the library and painstakingly photocopy each page.  You have a choice. The same is true with images.
This is correct, for public domain images.

Many DMLA members specialize in or include archival material in their image collections and make theses images available to publishers and other users and charge a fee. There is nothing improper or illegal about that. These archives or the collectors have made substantial investments in scanning, enhancing, keywording and making their copy of the public domain work easily searchable and usable. So a publisher can find a copy of an image from another source, but it may be low quality, it may only be in print form and it may not be easy to locate and use. With tight publishing deadlines, having a source of an image that is readily available and searchable adds value and is a benefit to users.

Except this is not the case here. As far as anyone can see, the Library of Congress appears to have made investments in digitizing images, and published them on its website. I've looked up an example from the complaint, and Getty and Alamy's copies are plain copies of the files on the Library website.

For example, this mentions that work:

They [Carol Highsmith and C. Ford Petross from Library of Congress]immediately started working together to raise the funds that were needed to produce hard copies of Highsmith’s negatives.

I don't know what involvement in the work had Getty Images or Alamy - is this the work and investment they were doing? Moreover, first photos were on old negatives, but most photos in Highsmith collection were born digital.

Nor is it improper to call the fee charged to use a public domain image a “license” A license merely means permission to use “my copy”. You can have a license that applies to the access and use of a copy, or it can apply to any sort of IP license such as copyright, trademark or patent. But the term only refers to permission and it is not limited to an IP right.  So archives and image libraries that have some historical out of copyright works can license those works to a user for a specific purpose because those are the contract terms a user agrees to.

It *IS* improper to call it a license, because a license on Getty's website means a copyright license, and suddenly calling it the same thing surely misleads people into thinking it is necessary.
A license almost never means permission to "use my copy", as Nancy Wollf says. In fact, I don't think I've ever seen it named that, in about seven years. Even if it was, we're not talking here about a physical paper-printed photo kept under glass in a museum. We're not talking about "my copy" to which I give you access. We're talking about 18,000+ plain copies of digital files copied from files already made public by the Library website.

In fact, while Carol's photos seem to have been taken down by Getty, everyone can see right now photos which are indeed in the public domain:
http://www.gettyimages.com/event/new-images-from-contributor-buyenlarge-139643028#amarillo-texas-general-view-1943-picture-id139233453

The same "Buyenlarge" contributor whose name was plastered over some of the Carol's photos. I clicked on "License", and I got:
http://www.gettyimages.com/license/139233453
License type: Rights-Managed.
Clicked on the Info "?" sign near Rights-Managed, and it said:

Rights-managed products are licensed with restrictions on usage, such as limitations on size, placement, duration of use and geographic distribution. You will be asked to submit information concerning your intended use of the product, which will determine the scope of usage rights granted.

What "rights" are granted, again, for a public domain digital image? I'm sure Nancy Wolff would know, since according to her, "license" is not about "IP Rights".
This whole page is just wrong. There are no restrictions on usage, if the photo is public domain, nor limitations on size, placement, duration or geographic distribution.

Click on "Rights Managed", and I get this page:
http://www.gettyimages.com/Corporate/LicenseAgreements.aspx#RM

I can't even begin to count how many things are wrong with that page, for a public domain image. I pick one: citation. The page claims that the user must cite the archive as  "[name of photographer] / [Collection Name] / Getty Images". Otherwise, he/she will be charged 100% fee in addition to other remedies Getty would allegedly have. The irony.

TL;DR: on Nancy Wolff's claim that you can call it a license, I don't believe that's okay, because it's confusing from the mere fact that we're talking big stock photo websites with a lot of copyrighted images. The user is sure to be mislead by naming it "license" on public domain works, they will understand it's copyrighted. But that's nothing compared to what really happens in this case, when Getty's website leads the user looking at the license to the pages about IP rights they do actually not have.

14

Getty Images Letter Forum / Zuma Press v. Getty

« on: August 05, 2016, 09:04:19 AM »

The text of the complaint is here:
http://www.schwimmerlegal.com/2016/08/text-of-zuma-press-v-getty-images-complaint-sdny.html

Online coverage:
http://arstechnica.com/tech-policy/2016/08/getty-images-sued-again-over-alleged-misuse-of-over-47000-photos/
https://www.dpreview.com/news/3273514842/getty-images-sued-again-this-time-by-zuma-press
https://www.techdirt.com/articles/20160804/11403535157/getty-sued-again-over-abusing-copyright-law-licensing-images-it-has-no-rights-to.shtml

Special mention on TechDirt's position: they have doubts of some allegations. But it seems to me important to note that there's no problem at this stage with allegations of copyright infringement and/or DMCA 1202. Those are pretty simple, as Getty usually says: you either did strike copyright notices or you didn't, and you either copied, displayed, distributed the 47,000 photos, or you didn't. If you did, you'd better have a license - and Getty didn't. The likelihood other copyright limitations would apply, like fair use, is frankly null.

That's why I think the case looks strong, for the causes of action it lists. Sure, copyright ownership or exclusive licenses will be a factor but at this point I don't know (and I don't see) why to doubt that. Looking forward to the next steps.

I also don't have the exhibits yet. One of them is the exclusive license Zuma Press says its photographers usually sign. It will be relevant.

My impressions from the complaint is that it was rushed. It's like they were working on it, when they saw headlines with Carol Highsmith's lawsuit, and they wrote up quickly their beefs with Getty, and filed it. It will be amended at a later date, unless they're actually looking for a quick settlement.

What I note, is that the complaint is a bit weird in that it says Getty might not prove due diligence given that it became so big so fast, but in the same time it says it's willful infringement. Actually, the first part just gave Getty some ammo to say it wasn't willful, just careless. A carefully written complaint wouldn't have done that, I'd think.

The funniest part of this is that, amazingly, Getty made a public statement in which it responds, claiming that... Getty has in place good processes to verify correct licensing...

15

Getty Images Letter Forum / BWP v Polyvore, no infringement for user uploaded images

« on: August 02, 2016, 09:40:17 PM »

A recent decision that may be surprising for older assumptions: the website being sued allows user uploads, doesn't need a DMCA agent, and yet wins on all direct infringement, contributory infringement, vicarious infringement:

http://business.cch.com/ipld/BWPMediaUSAPolyvore20160715.pdf

An excellent analysis is here:
http://blog.ericgoldman.org/archives/2016/07/sideloading-service-defeats-copyright-infringement-claims-bwp-v-polyvore.htm

I note BWP's behavior: uninterested much in doing the necessary during the case. (I don't know how to understand that)

The most important point, it seems to me, is that given the evidence in the case, Polyvore didn't need DMCA safe harbor to be shielded from copyright claims, even though the images (79) were displayed on its site. Users uploaded them, using features of the site, without any "volitional conduct" from Polyvore. That was sufficient in the end for a finding of no direct infringement as a matter of law, under Cablevision.

In addition, the tool was capable of "clipping" copyrighted and infringing images just as well as non-infringing images, and Sony-Betamax applied to shield it from contributory liability.