Matthew Chan Comments: PACA’s Initial Comments on Copyright Small Claims

PACA’s Initial Comments on Copyright Small Claims is very good reading and substantiates many points that ELI has made for years. It actually reveals what stock photo companies know but they don’t want YOU to know as an extortion letter recipient. Naturally, I have many comments on the matter.

The PACA Initial Comments document is something to behold. It is a gift to the ELI Community.

According to PACA: “On the legislative front, PACA filed comments on January 16, 2012 to a notice of inquiry published by the Copyright Office on the challenges of enforcing copyright claims of lesser economic value under the federal court system and whether there should be alternative means to enforce claims in which damages sought for infringement are relatively small. PACA supports the Copyright Office in looking at ways copyright owners can enforce certain infringement claims in an less burdensome and expensive forum that would not require legal assistance.”

This appears to be in the public domain since they are filing it with the Copyright Office. So, ELI will upload and keep a copy in our document library in case they decide to delete it from their website.

Quote from report. “PACA’s mission is to foster and protect the interests of the picture archive community through advocacy, education and communication. A primary purpose is to actively advocate copyright protection and copyright education.”

The industry has done a very poor job educating people or trying to convert alleged infringers into customers. The so-called education by the industry is largely a joke. ELI has done a better job educating alleged infringers than they have which is why ELI continues to gain goodwill and climb in stature on the Internet. PACA’s members are their own worst enemy and continue to drive ELI status upwards.

Quote from report. “Most member organizations manage a large library of visual content and have real concerns regarding the economic impact of infringement.. While infringement of content made available for licensing has always been present, even when images were offered in slide format via catalogs, the ease in which images can be downloaded, distributed and used without obtaining any license or paying a license fee is increasing because of the ease of digital distribution and causing real economic harm to stock libraries and the individual creators.”

PACA as with the rest of the stock photo industry keep blaming piracy and infringements as the cause of their lost income.  The reality is the sheer abundance of imagery being pumped out daily diminishes the market value of all the images. Additionally, with high-quality digital cameras being affordable to so many people, there are even more people producing images. Newspapers are going out of business because people don’t need newspapers anymore.  Book publishers are going out of business people they aren’t needed anymore.  The television industry is in turmoil having to settle for very small viewership.  People spend a lot more time on independent entertainment such as YouTube.  PACA is in denial of these larger technological trends.

Quote from report. “The ability to use the federal court system to redress the harm is limited for two reasons, the difficulty in effectively registering large volumes of images and the resources and effort involved in bringing a claim in federal court.”

Boo-hoo. They admit that filing lawsuits in federal court is an uphill battle.

Quote from report. “Because stock libraries manage images owned by numerous individual creators as well as images that are wholly owned, the formalities of registration make it difficult to protect the images that are made available online, in some cases on a daily basis, to the professional image buyer. It would be prohibitive both in terms of personnel and monetary resources to register the individual images on behalf of each copyright owner on such a frequent basis.”

Letter recipients need to read this very clearly. Photographers and stock photo agencies want to be in the business but don’t want to do the work to register their work. Instead of dumping out work, how about actually selecting those images that are worth something to register? Song writers, book publishers, and authors take the time to SELECTIVELY register their work. They don’t register every random brain fart they ever created.  Just because a “professional photographer” took 100 photos doesn’t mean all of them are valuable. And if they think they are all valuable, then register all 100 of them! The only people complaining about the copyright registration process seems to be the stock photo industry. I don’t hear these complaints from any of the other media industries.

Quote from report. “For example, many members drafted contracts based on the Copyright Office recommendations that members should acquire copyright ownership in the images in order to register the individual images that are maintained in the electronic database. Unfortunately, some federal district courts have recently disallowed this registration, asserting that these registrations only protect the compilation of the images and not the individual images.”

They obviously don’t like the recent rulings.

Quote from report. “One of the unfortunate results of these recent decisions is that blatant infringers now attack the validity of the copyright registrations, rather than trying to resolve any copyright infringement claims on an amicable basis. This practice has increased the cost of pursuing such claims by PACA members and is a significant deterrent as the decisions are easily found in any web search.”

These recent decisions did not suddenly become available to everyone. They became more widely accessible because the ELI Team not only helped make available those decisions widely available but we also explained them in way that ordinary people could understand. PACA’s members continue their campaign to threaten, mislead, and lie to letter recipients.  ELI will continue to clarify the truth.

Quote from report. “PACA members take seriously the responsibilities of enforcing copyright in the imagery they represent and many stock photo libraries have departments dedicated to copyright compliance in order to resolve infringements and secure licensing fees on behalf of copyright holders. While companies first attempt to resolve claims without resorting to litigation, some claims cannot be resolved either because the infringer refuses to respond, believes that simply removing the infringing content is sufficient, or refuses to pay adequate licensing fees.”

What they consider “adequate licensing fees” is actually outrageous, disproportionate, and totally out of line with actual market value. PACA’s members hate that even those infringements that fall into statutory damages must somehow be connected to some sense of reality of actual damages, not simply a calculated number that defies explanation. They won’t admit that in some situations, a take down is perfectly acceptable solution. Not every so-called infringement is deserving of monetary compensation. And if they want it, then they need to work to prove it.

Quote from report. “At that point, the stock photo library must make a decision as to whether an infringement action is warranted. In most instances, it does not make commercial sense to pursue an action unless there are numerous registered images infringed by a single infringed. Unfortunately, this only encourages infringement and disrespect for copyright in general.”

Filing lawsuits continues to be a rare occurrence because it is very expensive and cumbersome. Quite frankly, what PACA doesn’t acknowledge is the abuse of the court system by their sister industries by the movie, newspaper, and music industries. Judges have increasingly become tired of heavy-handed, outrageous, disproportionate lawsuits on small parties that cause little or no damages.

Quote from report. “In addition to the obvious financial deterrents in bringing an action that includes costs such as obtaining a court filing index number, (a fee that may exceed the license value of an image use), attorney’s fees, expert fees; document production and deposition costs, etc.., there is the difficulty in finding attorneys throughout the country that are willing to handle these type of actions in which the economic value, even with the of availability of statutory damages or attorneys’ fees, may be relatively low.”

PACA practically admits to knowing that any damages they might collect would not be financially feasible. Most judges aren’t going to rule based on paying the attorney bills.  They are going to rule based on the actual market values and actual damages, not some concocted, astronomical number.

Quote from report. “A company may have the benefit of an in-house lawyer, or a local lawyer that is willing to work with them, but strict jurisdictional requirements may prevent the company from being able to bring a claim in its local federal district. This is an additional deterrent in pursuing claims against defendants that do not reside in the federal district where the stock photo library is located.”

All letter recipients should pay heed to this.

All in all, this document was truly a gem of a find for the ELI community. I am quite certain that it was not intended for the ELI Community to read or use to our benefit. Maybe PACA should get a clue and actually use some common sense about their members so-called economic losses.


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