Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

[SoylentGreen]

Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

Article from TechDirt

http://www.techdirt.com/articles/20110614/17302814695/judge-rules-that-righthaven-lawsuit-was-sham-threatens-sanctions.shtml

"Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."

Hope that Getty is taking note.

S.G.

[Helpi]

"Hope that Getty is taking note."

The Getty standing issue was discussed on this board way back and appears to be quite different then what Righthaven was doing.

The problem with attacking Getty on standing is that Getty appears (from the standard contributor agreement I read and posted to way back) to be an exclusive licensee.  Hence, they have standing. Righthaven (from the article; I have not read the decision) purported to take an assignment of the right to sue not of any of the exclusive section 106 rights. The right to sue is not a distinct (section 106) right under the Copyright Act. The right to sue attaches to copyright owners (which includes exclusive licensees).

Put another way. Getty obtains exclusive licenses to exploit content (e.g., exclusive right to license my photo of X for web use for three years) and as a result has standing to sue to the extent someone interferes with their exclusive right to use the image for web use during the term of the exclusive license.

Righthaven appears to be in the business of bringing lawsuits on behalf of content owners presumably footing the cost and then taking a piece of the prize. If they want to do that they need to be in a different business. It's called a law firm and you need to be a licensed lawyer to do it and, in any event, the plaintiff would not be the law firm but the copyright owner.

"Gibson said the ruling left him pondering an interesting question: If Righthaven does not have "standing," or the right to file a lawsuit, then who does?"

The copyright owner, which I presume is Stephens Media. Not that interesting.

[SoylentGreen]

Thanks for your contribution to this discussion.

As the West's industrial gears are slowly grinding to a halt and many of us are trying to find our way in a new economy, we're seeing more and more of these kind of money-making schemes.
I do think that this court finding is an important decision that reinforces what amounts to common sense: you cannot sue for IP damages if you do not own copyright to the content in question.  We're in agreement here.

I personally feel that Getty (and some others) do not own the copyrights to much of the content that they sell.  In such cases they're simply an "agent"  not an "excusive licensee".
That is why Getty recently urged their contributors to copyright their works (ie. Getty's not doing it, they expect the artist to do it).
Victims here are saying that Getty won't provide them with the copyright registration information to prove that they (Getty) own sole rights to such content and can successfully litigate over such issues.
It smells fishy to me.  So, Getty may well be in the same boat as Righthaven in many instances; it has no legal standing to sue over images that it simply doesn't own the copyright to.
If Getty actually owns copyright to their content, they certainly should be able to prove it to their extortion letter victims.

Again, this decision is a game-changer for a company (Righthaven) that was conceived as a copyright troll from day one.
Their business model is as dead as the dodo.

S.G.

[Helpi]

"I personally feel that Getty (and some others) do not own the copyrights to much of the content that they sell. "

It's not a matter of what either of us feel. There must be a written agreement. That is a requirement of the Copyright Act to either assign section 106 rights or to enter into an exclusive license related to such rights. And if there is litigation you can discover the agreements as I must assume happened in the Righthaven case. The Judge read it and said this isn't an exclusive license this a (purported) assignment of the right to sue. Which doesn't work because 501(b) tells us who can sue: (1) legal owners and (2) beneficial owners (related to transfers in exchange for royalty payments.)

The standard Getty agreement that I saw grants Getty an exclusive license.

"That is why Getty recently urged their contributors to copyright their works (ie. Getty's not doing it, they expect the artist to do it)."

There could be a number of reasons, that is not one of them. Getty isn't without legal resources. They can read The Act the same way Oscar can. They are not setting up an "agency" to sue if I understand what you are trying to say because such a thing doesn't work. They are either an exclusive licensee or a non-exclusive licensee of the content. If the former, they have standing.

[Helpi]

FYI, I found this googling:

http://tinyurl.com/5v5l35o

Obviously one would need to see the actual agreement used in any particular case. But if it's consistent with this Getty is not sitting in the same position as what I understand Righthaven to be doing from that article.

Here is some of the relevant language:

1.1 License Grant to Getty Images: You grant Getty Images a worldwide, exclusive right to market and sublicense the right to copy, reproduce,
display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to
Getty Images.

DING DING DING.  Exclusive License. Pretty broad one in fact.

Here we find a provision addressing issues related to Getty's right to sue:

1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to
proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the
exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual
property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your
cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or
that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any
settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it

[SoylentGreen]

What you've provided is a "sample agreement".
It has no legal standing.

However, I don't dispute that Getty may have exclusive agreements with some parties.
No question.

But, from what I've read on this forum, they are unable to produce such proof to those that they accuse of infringement.
In these cases, the whole "We're going sue!!" song and dance is beginning to ring quite hollow.

S.G.

 

[Helpi]

"What you've provided is a "sample agreement".
It has no legal standing."

>>"Obviously one would need to see the actual agreement used in any particular case. But if it's consistent with this Getty is not sitting in the same position as what I understand Righthaven to be doing from that article."

I think you'll find the actual agreements are similar. I don't think many of the agreements would be state secrets and you could probably dig up either the current form of agreement that is actually used or an actual executed one. I did another google and found this page:

https://contribute.gettyimages.com/producer/help/workingWithGetty

In part, "Only Getty Images may license the images and Similars (defined in the Agreement and FAQ) you place with us while the Agreement is in effect (Getty Images will have exclusive licensing rights)."

Which makes clear they are interested in exclusive rights. I think if you think Getty is telling all it's potential contributors that you need to give Getty exclusive rights during the period you deal with them but that when it gets down the actual executed agreement Getty takes less is fanciful.

Getty needs to license rights in order to relicense (unlike what Righthaven wanted, merely the right to sue). They are either obtaining exclusive or non-exclusive rights. Call Getty and inquire as to becoming a contributor. I think you'll, again, learn that Getty is interested in exclusive rights. If you have something Getty really needs could you cut another deal ? Why not. But that does not appear to be the norm.

What is it you're thinking (hoping) Getty's agreement looks like ?

"But, from what I've read on this forum, they are unable to produce such proof to those that they accuse of infringement."

Unwilling does not mean unable. Why don't you ask Oscar how it typically plays ? At what stage in a dispute someone would turn over that type of agreement and to whom ?

"In these cases, the whole "We're going sue!!" song and dance is beginning to ring quite hollow."

They're entire "song and dance" and when or whether they will sue is a separate issue from whether Righthaven case/standing impacts Getty.

From what I've read (here and elsewhere) and my general understanding of Getty's relationship with contributors, I think you're barking up the wrong tree if you think standing is (generally) the way to attack Getty. Obviously each case must be evaluated on its own. (There could be defects in any particular agreement. Getty must have the rights during the relevant period etc....)

[SoylentGreen]

Oscar?  How does it usually go?
Getty's demanding money from people, but won't send the proof.

I don't think that the expense of the fighting likes of Getty comes into it either.
They're not suing anyone in the states as yet.
So, what's to defend?  What's to fight?

Is the answer just to ignore it?
People are getting wise to this.

S.G.

[Matthew Chan]

Good discussion all.  Lots of great insights and perspectives being shared.

First, there is the the theoretical discussion of what "should" be vs. what is actually practical and what can happen.

Getty, for all my criticisms about them, are still somewhat smart about this. They have created this little money-making machine and have made a ton of money without the PR exposure Righthaven attracted.

I hypothesize that there are multiple reasons why Getty hasn't fired off lawsuits yet. 

First, the obvious escalation would bring in folks like EFF and more defense attorneys into the fray. If they think Oscar has been a thorn in their side, can you imagine more defense attorneys jumping in like what happened with Righthaven?

Second, no matter what the companies may have you believe, there is no sure thing in court. You never know what the other side will bring. Being a larger company, in many ways, they have more to lose than one case.  Righthaven has shown that the occasional loss and bad karma can be very devastating. One loss for Getty Images for whatever reason would be very damaging to them.

Third, the actual cost and recovery would be low going after most of the letter recipients. It is difficult to believe that a judge would give Getty Images any more than $10,000 including legal fees for most single-image infringers. And assuming they got the judgment, how easily would it be to collect?

Fourth, sending threats and actually pulling the trigger would actually help expose the names of the employees and individuals involved. Corporate employees are notoriously cowardly and only care about their jobs and their salary.  I know this and this is why I look very hard for WHO makes and executes the decisions of a company.  They can say Getty Images all day long but ultimately it is the individuals who is responsible.

For example, Steve Gibson thought he was so smart.  But he is probably one of the most hated men in the biz today. That hatred will and continue to manifest itself in strange ways. Already, the anonymous strangers have created a mindshare on the Internet to join forces against him, Stephens Media, and what he represents.  Yes, there is some paid effort being expended but there are a ton of energy and time being expended to "get them".  Be very careful of those people who decide to take up a cause for its own sake and not for the money.

I could go on with other esoteric reasons but I am convinced that these intangibles would manifest itself in a real way.

Having said all that, the diversity of letter recipients and their individual responses/reactions are very different. As SG pointed out, there is not yet anything tangible to defend, simply the possibility of a lawsuit. But to defend against that possibility comes having a spine, some diligence, and a lot of learning.

Ultimately, you cannot always "convince" someone to see your way. Sometimes you simply part ways to agree to disagree. And I believe that happens very often from people who don't bow to the letters.

Anyhow, I am rambling but I feel better now. 

Matthew

[SoylentGreen]

Good post Matthew!!
Thanks again for this site.

"$10,000 including legal fees for most single-image infringers".
But, they'll only get their legal fees and damages if they registered the copyrights to the image.



S.G.

[Matthew Chan]

Don't take me literally on the $10K.  It was just a number I chose to illustrate it will NOT be $100K or any other crazy number.  $10K is still a crazy high number that was arbitrarily chosen as a possible worst case real number given minimal or no defenses.

My itch to do an update video is growing.  I predict there will be one sometime in July.  We will see.  I am sort of letting things build up based on what I am hearing from people.

Matthew

Good post Matthew!!
Thanks again for this site.

"$10,000 including legal fees for most single-image infringers".
But, they'll only get their legal fees and damages if they registered the copyrights to the image.


S.G.

[SoylentGreen]

Matthew,

I'm looking forward to another video, as are many others to be sure.

I see that it's pretty easy to troll in some Getty toads on here.
We're not like Righthaven at all!!  Honest!!  ...fun times.

I see that Masterfile has its own legal counsel in house.
"Dan Pollack" in the Toronto office.

http://ca.linkedin.com/pub/dan-pollack/8/885/541

He's US educated; he's probably well suited to "serve US customers".

S.G.

[Helpi]

"I see that it's pretty easy to troll in some Getty toads on here.
We're not like Righthaven at all!!  Honest!!  ...fun times.

If explaining the standing issue to you makes me a troll then sign me up. If having any relationship with Getty or RH makes me a troll then I'm not.

While I recognize the site serves to cheer and support as well as to solicit clients, I would suggest that if understanding the issues is of any concern, it's helpful to point out areas not only where Getty is weak but where they are not weak.

For the reasons already noted, Getty does not appear to be standing in the same position as Righthaven as far as standing (pun intended).

[Helpi]

It seems RHs lawyers will soldier on until the Judge has had enough and/or the clients money runs out.

http://arstechnica.com/tech-policy/news/2011/06/newspaper-chain-fights-for-copyright-trolls-survival.ars

[Matthew Chan]

They almost don't have a choice to continue justifying their position otherwise Righthaven knows they will become irrelevant and have less power than a paper tiger.

They are trying to make a questionable business model legally acceptable.  Obviously, judges are NOT making it easy for them.

Matthew