"Trolling for Copyright Claims Against Online Hosts"

|The Volokh Conspiracy |

A very interesting post by Paul Alan Levy (Public Citizen), who is a leading expert on this sort of thing; much worth reading, if you're interested on the use and abuse of copyright claims online.

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  1. “Moreover, Internet users cannot be reminded too often that the mere fact that you can find a photograph or video clip online does not mean that it is free for you to download and place on our own web site.”

    Got it.

    However, me, joe-schmoe, on a blog/website (Facebook, etc.), and I post a copyrighted photo.

    Am I liable for anything?

    1. Apedad, I make and sell seascape photos, by the print, in limited editions. There is an established market for my work, and the prints are priced mostly beyond the means of joe-schmoe. Because I discovered about 15 years ago that anything good which gets posted online will almost certainly get stolen, I don’t try to use the web as an advertising medium. I try to keep all the better images offline, all the time, and sell through a gallery instead.

      Problem is, I don’t have enough control to make sure that happens. The gallery which sells my work needs my permission to promote it—hence some digital images go online that way. It would certainly hurt my ability to sell if I withheld that permission. I might even have to find another gallery—and good luck finding one that won’t also demand to use the internet. But because that online posting happens, the work is always vulnerable to unauthorized use.

      Also, people who see a framed print somewhere have a surprising habit, if they like what they see, of whipping out the cell phone, snapping a picture of the image hanging on a wall, and sharing it online. I can never know when that is going to happen.

      The only real protection I have, is copyright, and the will to go after anyone who violates it. So if I find out someone has posted an unauthorized image of my work online, I am certainly going to try to collect damages at least equal to the price of a print. If as a result of the unauthorized online posting, the images get shared more broadly, the price of infringement may also go higher.

      Problem is, there is a paradoxical angle to all this. It’s good for my reputation if my pictures get seen, and a good reputation helps sales, sort of, in theory. It was a theory which seemed to work pretty well, back before the internet. It helped Ansel Adams quite a bit that the national press fell in love with his images, and published reproductions of them constantly in print media.

      The internet seems to have changed that. In practice, if paying the piper for what you get can’t be enforced, then it’s all theft all the time on the good old internet.

      I don’t know quite what to make of that. But if you pay me the compliment of stealing my work, and I find out about it, please do expect me to demand that you pay at least the usual price.

      So thanks for asking.

      1. I found a gallery with several of your images.
        Very fine work indeed. Bravo!

        1. If Don Nico had included the URL of the gallery (or should I have said the he focused on the gallery 🙂 would that be a copyright violation? I don’t think so, but what do I know? Would it change anything if that page had a photo under copyright on it? Again, I don’t think so, but what do I know?
          If he had included not just the, but added a in what was written, and something on that page was under copyright, would that be a copyright violation? From what I’ve read, that makes the URL into a “deep link” and that means it is a copyright violation.
          Can someone unconfuse me?

          1. That depends on what countries copyright laws you are talking about.

            Having a copy of the image directly on his own website is a violation. Some EU countries have made deep links a copyright violation, but that I am aware of neither the US Congress or any US court have gone that route with US law.

  2. 1. All photos are copyrighted.

    2. Unless you own the copyright for the photograph in question and/or have a license to use it from the owner of the copyright, yes, you are liable for the copyright violation.

    That said however unless the copyright in question has been registered, the owner is only entitled to actual damages, and the value of the case is probably too low to be worth pursuing in most cases.

    On the other hand if it has a registered copyright, the owner can ask for statutory damages, which are much higher.

    Statutory damages for copyright infringement

    In the United States, statutory damages are set out in 17 U.S.C. § 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.

    Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work.[1] Defendants who can show that they were “not aware and had no reason to believe” they were infringing copyright may have the damages reduced to $200 per work.[1]

    Under 17 U.S.C. § 412, statutory damages are only available in the United States for works that were registered with the Copyright Office prior to infringement, or within three months of publication.

    Since all works that can be copyrighted are copyrighted from the moment they are first set in tangible form. For digital works, a computer file on disk counts as a tangible form, for the “not aware and had no reason to believe” you are probably going to have to come up with a rational basis for thinking the work is in the public domain (to old for automatic copyright or old enough for the copyright to be expired).

    1. All photos are copyrighted.
      Most, but not all. Photos (and other works of authorship) created by the federal government are not subject to copyright. According to the Copyright Office neither are works created by animals or machines, especially Celebes crested macaques

      1. There are a great many privately-made photos in the Library of Congress, on which the copyright has long since expired. Those are also freely available, I think.

        1. True, but unless the Library of Congress is specifically marking items that are off copyright, it’s complicate to know what is and isn’t off copyright.

          The US 1909 (or was it 06) copyright act didn’t follow the Berne Convention and you had to register to have a copyright at all. The term was much shorter, but was renewable once and once only.

          The 1976 act brought the US more inline with the Berne convention, but still not perfect alignment.
          Automatic copyright without registration like Berne, the term is closer but not an exact match US term was slightly shorter. The 1976 act was not retroactive though allowed for continued renewal of 1909 copyrights that were still in their first term.

          Then came the “Sony Bono” term extension in the 1990s. It WAS explicitly retroactive to every work still under active copyright and the US copyright term is now LONGER than the Berne Convention term.
          Anything that was copyrighted under the 1909/6 act was still in it’s first term when the 1976 act went into effect and was renewed, would have still been under active copyright when the 1990s extension was passed. So works all the way back to 1950 could still be under active copyright.

    2. Bullet 2 needs another qualifier for Fair Use. Unless you’re arguing that Fair Use would count as “a license from the owner”?

      And while Fair Use is not a claim to be made without some real understanding of what counts (and the potential consequences if you’re wrong), neither is it a defense to be summarily ignored by copyright holders.

      1. This is true, but fair use is complicated and a fair discussion of it wouldn’t really fit in the comments section.

        Whether or not a given use is “fair”, depends on how much of the work is used, the nature of the work and the nature of the use to which it is put. And there are no bright line rules, or even rules of thumb on which to judge any of those factors.

        The only good predictor is that commercial use will almost never qualify for “fair use”.

    3. Matthew, you raise good points. I have one thought to add to them. Many photographers who sell their work as fine art, sell limited edition prints. It would be interesting to know if an unauthorized use of the image could be charged for at the value of the entire edition. It would also be interesting to know if each client who bought one print has a claim.

      If so, an artist who achieves high status and high prices, and sells largish editions, could run up some staggeringly high damage claims, far in excess of the $150,000 statutory damage limit.

      1. “It would also be interesting to know if each client who bought one print has a claim.”

        Not a copyright claim. Clients who buy the prints get no rights under copyright law. They might conceivably have a general tort claim for loss of value, but I don’t really know.

        “If so, an artist who achieves high status and high prices, and sells largish editions, could run up some staggeringly high damage claims, far in excess of the $150,000 statutory damage limit.”

        1. If the copyright is registered, the copyright owner has the choice between actual and statutory damages (but not both).
        2. My under standing would be that actual damages start with retail value of one copy * number of copies distributed (in violation), in cases where the whole work wasn’t copied, this would be adjusted for how much of the work was used. Outside of commercial scale piracy, it would be rare for actual damages to exceed statutory, but you have pointed out a case where that can happen.

  3. Correct, government work product is not subject to copyright. However, beware: not everything available on government websites is government work product. It may be work product of a contractor or researcher who works with the federal agency but isn’t an employee. The contractor or researcher may have a valid copyright in the work.

    As to it being a creation of an animal or machine, unless you have specific evidence to support that, I wouldn’t try that in court. If you try a frivolous claim of I though it was created by an animal, the court may decide that your violation was willful, with can push the statutory damages up to $150K.

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