Public domain v copyright liberal license (Highsmith v Getty)

[Engel Nyst]

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.

[Engel Nyst]

If the works are deemed public domain, I wish Carol had plan B. You know, like in anything.

The problem is that copyright law is written like 99% to support (c) holders, and give (huge) remedies for breaches of their rights. Courts have extended it to cover contributory and vicarious liability too. And there's a 1% or rather less than that, which concerns other kinds of bad behaviors, like claiming to own rights they do not own.

That would hit Carol directly, *if* the court deemed her works in the public domain.

The 1% is comprised of 512(f), the section that deals with putative (c) holders who make wrongful DMCA takedowns if they knew they were wrong (perjury); maybe 106A, which gives rights to authors not (c) holders but it doesn't seem applicable here; and I'm out of statute.

How do you call it, when a work is public domain, say, and someone:
a) claims to own it, even though they know they can't enforce such in a court,
b) puts it together with other works, which they might own indeed, and writes licensing terms, such that a reader can see no difference whatsoever, likely misleading them to buy works they may be already entitled to use freely,
c) writes extortion letters to users, threatening them to pay up, declaring they own "exclusive rights" over the work, when they don't, riding on lack of awareness from the user, on their other huge library of works, on their name as copyright holder known to enforce their rights in court,
d) doesn't stop, even after told and proven that they don't own that work, and scare others with "rights" they do not have, for money they do not deserve?

Outside copyright law, one can easily call it fraud. But I'm not sure that's sufficient, in particular considering the large scale about which we're talking here; and within copyright, there's almost nothing.

Courts, however, have started to develop the doctrine of (c) misuse, for other kinds of bad behavior related to copyright, not covered by something else already. The doctrine is underdeveloped. The first case I know of was in 1990, Lasercomb v Reynolds.

Adapting a passage from an older patent case, 4th circuit said:

The grant to the [author] of the special privilege of a [copyright] carries out a public policy adopted by the Constitution and laws of the United States, "to promote the Progress of Science and useful Arts, by securing for limited Times to [Authors] ... the exclusive Right ..." to their ["original" works]. United States Constitution, Art. I, § 8, cl. 8. But the public policy which includes [original works] within the granted monopoly excludes from it all that is not embraced in the [original expression]. It equally forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which it is contrary to public policy to grant.

Indeed, it seems to me that this point couldn't be clearer: a copyright is granted to an author for their own original work, it is not and cannot be achieved over pre-existing material, such as a public domain work. I'd argue it is against the public policy embodied in the grant of copyright to allow an entity aggregating copyrights to also grab public domain works and modify nothing to them, then claim copyright over them, and chase innocent users who don't know the origin of those works.

To be sure, one thing I assume here, is that it should become clear in these suits (Highsmith and Zuma), that this isn't a random occurrence. I believe Getty is simply not enticed to keep accurate licensing terms on their works, not when they know or think they know that nothing will happen if some or several dozens of thousands are not theirs to enforce. But I guess only a wide discovery could bring to light just how many mishaps we're talking about.

In California, there is a decision saying, among others:

Two district courts in this circuit [...] have held that the [copyright misuse] applies broadly if a copyright is leveraged to undermine the Constitution's goal of promoting invention and creative expression. In other words, there must exist a nexus between the copyright holder's actions and the public policy embedded in the grant of a copyright.

(internal quotations omitted)

Another detail: here, in ELI archive, and elsewhere on the web, I found that Getty was copyrighting the extortion letters. If they did that to Carol Highsmith letter too, I'd say that should be misuse. (the linked blog belongs to William Patry, author of one of the most influential copyright treatises in US)

There's another detail. I don't know though: does Getty copyright their collections of photos? If yes, did those collections ever contained works they don't own, like public domain works? If yes, that might be another angle.

The interesting side of copyright misuse, if found, is (same source):

Copyright misuse does not invalidate a copyright, but precludes its enforcement during the period of misuse.

Depending on which works we're talking about, a finding of misuse could mean that Getty/LCS is stopped from enforcing their real copyrights, until they cure the misuse. Depending on how the misuse would be found, with or without Zuma's argument of wide coverage like the seemingly bad records Getty is keeping OVERALL, maybe it would mean that Getty has to accept an audit of all its licensing. (hey, I can dream). Heck, someone has to do such audit one day, and that doesn't seem to be Getty.

I'm just musing over it. Please take it for what it's worth, just wanted to get some of it out of my mind. I don't know if this angle is worth trying, I would hope one of these suits would, because, well, in part because, if the court deemed the works public domain, there doesn't seem to be much else to do (within copyright). But it doesn't feel right that there'd be nothing to do, it doesn't feel right that this behavior continues; and copyright remedies are so high, and the threat of infringement lawsuits so concerning to people, that it's no surprise it's copyright that they use for this.

If nothing could be done, I don't understand where does that leave us, in a world where more and more older works are digitized, thereby creating digital embodiments of public domain works, and where some authors are so fed up with copyright that they made public domain dedications just to not hear about "enforcements" anymore.

[Engel Nyst]

Adding to the material. Creative Commons published an interview with Carol Highsmith:
https://goo.gl/mYM1uA

[Engel Nyst]

Speaking of the latter link. Here's the only quote of relevance to the trial, and I'm presenting it here because it's insightful:

Photographer Carol Highsmith has donated her life’s work of tens of thousands of photos to the Library of Congress during her decades long career. Originally trained as an architectural photographer, Highsmith embarked on an ambitious project to photograph every American state in the 1980s, traveling up to ten months a year across the country to photograph small towns, big cities, roadside attractions, and everything in between. Highsmith’s photographs have appeared in films and television as well as in books, gallery exhibits, and even on a postage stamp. In 2009, Highsmith was chosen as one of four women highlighted as part of the Library of Congress’s Women’s History Month profiles. Highsmith has been in the news lately due to her lawsuit regarding Getty Images’s use of her images.

Highsmith’s project predates our work as Creative Commons, but her work is very much in the spirit of our community. By removing copyright restrictions from her photographs, Highsmith is engaged in the important work of growing a robust commons built on gratitude and usability; her singular archive at the Library of Congress is a testament to one woman’s passion and generosity. In this interview with CC, Highsmith shared some of her favorite photographs and stories from the road, her inspirations, and why she has hope in a new generation of innovation.

This is a piece of great writing. Creative Commons doesn't take any position whatsoever on any issue of the trial. It can't, quite, do so, and it doesn't. But it suggests exactly what might help Carol on the issue in this topic: copyright v public domain. It suggests that her intentions were in the spirit of building a commons of works that everyone can use and share, not impeded by copyright restrictions.

*Like* a Creative Commons license, which didn't exist at the time of her instrument of gift; otherwise, who knows, it might have fit her intentions.

[Engel Nyst]

I take a look at Getty's answer on copyright v public domain issue of this lawsuit. As noted here, Getty's memorandum has 3 substantial parts, and I feel this topic is better suited for part (1).

Significantly, Plaintiffs do not claim that Defendants infringed the copyrights in the Highsmith Photos, and that is for good reason: Highsmith owns no such copyrights, having long ago dedicated the Highsmith Photos to the public domain.

Interestingly, in the comments on the Oscar's blog on Highsmith v Getty lawsuit, a commentator said the same - that the reason for not suing for infringement would be that works would/could be in the public domain. (I guess Getty reads the blog).

But that's not quite right; as Getty itself points out in the next pages, there has to be infringement for most, if not all, DMCA counts to exist. Rather, my guess would have been that photos weren't registered in time or something.

[...]U.S.C. § 1202, which prohibits the falsification or alteration of copyright management information that is conveyed in connection with a copyrighted work. But even if Plaintiff’s factual allegations were true (they are not), liability can attach under Section 1202 only where the defendant acted with “the intent to induce, enable, facilitate or conceal infringement” or with
knowledge that infringement would result. § 1202(a)-(b) (emphasis added). Because the public domain works at issue here are no longer subject to copyright and thus, by definition, cannot be infringed, Getty Images could not have acted with the requisite intent or knowledge of infringement.

This is Getty's main argument, and it depends simply and fully on whether infringement exists, which is to say, whether copyright in the works exists and it was infringed. While I didn't spend much time on DMCA 1202 in the past, I did with the occasion of this lawsuit. Mainly, this seems right:
https://www.law.cornell.edu/uscode/text/17/1202

Both a) and b) have the condition "with the intent to induce, enable, facilitate, or conceal infringement" or "knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement". Just doing it doesn't seem to suffice; one has to do it with intent or knowledge that it will [...]conceal infringement.

One could try to argue that for b), these conditional words are tied to sub-point 3), only, and that 1) and 2) don't depend on it, but the look of the text doesn't seem to make that interpretation believable.

That means, as noted from the very start, that Carol's copyright-related claims (including DMCA) depend on the existence of a copyright, so on the interpretation of the instrument of gift. The judge will have to deal with it on its own, and make a decision on that one.

In 1988, she dedicated the Highsmith Photos to the public domain in connection with a gift of that collection to the United
States Library of Congress.[...]
The terms of Plaintiff’s gift were broad and unconditional, providing that “I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection.” Id., Ex. I (“Instrument of Gift”)

The terms were broad. As discussed here and here, though, there are conditions, the gift has two pages of them.

The Library of Congress thus makes the Highsmith Photos available to the world with “[n]o known restrictions on publication,” id., Ex. J, and states unambiguously that “Carol M. Highsmith’s photographs are in the public domain,”

Indeed, LoC says that. It also says that credit should be given, and the shape in which it should be given. Now, to me, that's a bit contradictory, unless we understand it in one of two ways:
- either, there are no restrictions whatsoever and no credit should be given; in which case LoC just says what it would be nice to do
- or, LoC uses the word "restrictions" to mean forbidding to copy/display/etc the works; in this case, no one is restricted, everyone in the world is allowed to copy, display, etc the photos, it's just that they have to give credit when they do.

Highsmith now asserts that she did not “intend to abandon her rights in her photographs,” but the Instrument of Gift by which she in fact did so speaks for itself.

One thing I always hear in discussions with people new to open source and open licensing, is that copyrights must be used to prevent copying otherwise it means they're abandoned. But that's just not true. Copyrights are a bundle of specific rights to exclude the whole world from doing several very particular actions, like to copy or to distribute or to display a work. I can use my rights to exclude them indeed, or I can use them to authorize, one person or seven or the whole world, to copy, or display, or distribute the work. I can authorize them under some conditions or without conditions at all. I can enforce my copyright, too; if they don't respect the conditions, they might be infringing (if not fair use etc).
To authorize the whole world to do these actions reserved for me, without conditions, seems the closest you get to public domain; it's not public domain, the work is under copyright, but I *can* authorize everyone in the world to copy/etc with impunity, during all my copyright, without any strings whatsoever, if I so please. I haven't abandoned my copyright title; it still exists for the work. But it's a good question, in such extreme case, if I can do *anything* with my copyright. The answer could be complex, I will simplify it by saying: maybe not, except I do not expect that someone will come after me to threaten me with copyright infringement lawsuits of all things (!), to scare me into paying up a "license fee" to them for my own damn work. I should be able to stop that behavior, on me and on the public alike.

Interestingly, Getty makes the statement above in a footnote. Although it's the very essence of the issue. But Getty might do that for a reason: when a contract is clear by its own terms, courts should enforce it as it is. (of course, Getty wants the instrument of gift to be clear, and its footnote implies that it is, even though it's not) But when it isn't clear, then courts look at the intentions of the parties, at the moment when they made that contract. And they interpret the terms of the contract taking intentions into account.

That's why Highsmith's complaint says what she intended, not only what she did. [On a side note, I admire (seriously) the style in which the Highsmith complaint is written: it's accurate and careful. Maybe not all in it will succeed, but that's not the point: it really really carefully passes from what the contract (here, the "instrument of gift") says to what Carol intended, at the right moment, it doesn't say things that aren't reasonable, and it carefully ties the loose ends.]

The instrument of gift is not clear. Carol Highsmith says in it several rather contradictory things. I understand that, and there's a bigger context here, too.

Historically, it's an interesting - and perhaps surprising - detail, that open/free formalized licensing for works has first happened for software works, and only after, for cultural/creative works. For software, such licensing has started around 1980, if not earlier, while Creative Commons, the well known today steward of open licensing for cultural works was born in 2001, and published its first versions of licenses in 2002. Carol Highsmith's gift to the world via the "instrument of gift" to the Library of Congress was first made in 1988.

That is to say, at that time, there wasn't really an understanding of all possibilities offered by copyright, despite us living with it for a few hundred of years. Maybe because open licensing wasn't really necessary or perceived as necessary, for various reasons, in the first age of copyright. Maybe it's because widespread digital means of expression and distribution meant that many more people can express themselves, but not all have any wish to keep their works under too tight control; maybe because some saw themselves as amateurs or maybe on the contrary. Whatever the reasons are, there wasn't a public understanding - and there weren't formalized pre-written licenses for creative works - for doing *something else* with one's copyright than sell it to a publisher.

Carol wanted to do something else. But she didn't have the means of (legal) expression and understanding we have today.

If Creative Commons licenses were written and known when Carol decided to make her gift to the world, would one of them have appealed to her more than writing her own in-house-made contract with LoC? Maybe. Or maybe not exactly one of them, but they might have given her an idea as to what she can do, and how to do it, in carefully crafted language which isn't contradictory or confusing.