9th Circuit Decision

[CaliforniaDave]

I see that the 9th Circuit has issued an opinion (Alaska Stock LLC v Houghton Mifflin Harcourt; not all that great.  I personally still believe that no one should be permitted to be allowed to omit the work, the title of the work and the owner of the work; even if the owner is claimed to be the company issuing the compilation.   I wonder if it will cause a change in the attitude or threatening nature of these succubus companies for the worse. 

[stinger]

It most likely will, which is the very reason why we need to keep the pressure up on the courts and our lawmakers to fix this mess.  The law is the law, but there is something very wrong with any law that allows large companies to use the law to extort from individuals and small companies.

We must work to get this changed.

[Lettered]

This court seems to me to be overly concerned with the "intent" aspect of copyright law as it applies to PHOTOGRAPHER commercial protections.  What they have missed, IMO, is the "intent" as it applies to CONSUMER protections.

We, as consumers, should have a registration database to consult to see if works are registered.  Isn't that the underlying purpose . . . to put us as consumers on notice that work(s) are registered?  As a minimum, we should be able to easily identify registered works using a photographer's name.  And, although probably an unrealistic expectation, image recognition software would be better applied to database searches available to consumers rather than after the fact to extort them.

Letting them plead "its in the collection" even though there's no way on earth an "offender" could have known is just unacceptable IMO, no matter how long they've "been doing it that way".

[Greg Troy (KeepFighting)]

Might this also work against them too? Since Getty, Mr. McCormack and others like to state it is up to the letter victim to find out who holds the copyright, one could  make the point that it was impossible to find the copyright holder when the work is part of a "collection"

I will certainly incorporate this into the draft of the changes to the copyright we will be working on.  It needs to be addressed since there are two different ruling by two different federal courts.

[Matthew Chan]

Oscar and I have already discussed this setback.  We are going to publicly discuss our views on this new development soon as soon as both he and I can get our schedules together.

AS I want to remind everyone, while the court of law is certainly an important battlefront so is the court of public opinion.

Many cases are still not slam-dunks.  The ruling has nothing to do with the fact that the trolls can't automatically count on getting attorney costs and legal fees from courts.  They can ask and argue for it but we've seen many times those attorney fees/costs discounted and adjusted downwards or disregarded altogether.  Trolls can still take financial bloodbaths if they recklessly file suit.

The only thing the other side has done is created a headache for the idiots at the antiquated U.S. copyright office.

Basically, companies like Getty can start piling 100,000 images per registration.  And good luck to anyone attempt to research the validity of ANY image whatsoever.

And lest the trolls decide to recklessly file suit, may I remind everyone what happened to RIAA, Righthaven, and the porn trolls?  They were brought to their knees by the media and the court of public opinion.

Rest assured, Oscar and I are ready to speak loudly to the media if and when the trolls decide to do something stupid.  As a lot of people know, I have a big mouth and a loud keyboard so I have a LOT to say and point out. 

Don't fret. The ruling is only one battle in this war against copyright extortionists.  They have to run and hide their identities.  They have to be embarrassed in what they do.  Because practically no one outside of their ivory castles believe how and what they are doing is right.

[Lettered]

I was particularly annoyed that the copyright office showed up with an amicus brief.  Wish they would have used all that time and resources to rewrite their registration policy to something fair.

Our tax dollars at work against us?

[Peeved]

Ya...some Jackwagon on Oscar's blog feels it's all about "invalidating the registration":

http://www.courtroomstrategy.com/2014/03/california-appeals-court-rules-in-favor-of-group-registration-of-copyrights-big-boon-to-mass-photo-agencies/#comments


Let's see...here's an update from Timmy's blog regarding the "Virtual Clinics" case decision.

http://www.jdsupra.com/legalnews/order-awarding-statutory-damages-and-ent-27269/

A classic case of "willful infringement" if I ever saw one. I don't think any ELI contributor
felt sorry for these people when this case was first brought to attention. Yes, they did lose and lost big at 300K for statutory damages on two registered images as well as actual damages for non-registered images.

This brings me to the 9th Circuit decision. The "end users"/"customers" of Virtual Clinics a WEB DEVELOPING company, could also be subjected to LAWSUITS due to this company's negligence. Um...these people would be the "INNOCENT INFRINGERS" who would have no way of identifying a specific registered image in a BULK COMPILATION in order to try to protect themselves when it comes to "trusting" a company for hire such as in this case.

But hey (from Oscar's blog)......
"Who would ever register photos individually. It’s madness. Which is to say it’s $35 a pop. The whole point of is to get the amount down to $35 for the entire collection. [sic]"

Just keep those demand letters coming boys and girls! 
(Disclaimer: Sarcasm)

[lucia]

Ya...some Jackwagon on Oscar's blog feels it's all about "invalidating the registration":

http://www.courtroomstrategy.com/2014/03/california-appeals-court-rules-in-favor-of-group-registration-of-copyrights-big-boon-to-mass-photo-agencies/#comments
A classic case of "willful infringement" if I ever saw one. I don't think any ELI contributor
felt sorry for these people when this case was first brought to attention. Yes, they did lose and lost big at 300K for statutory damages on two registered images as well as actual damages for non-registered images.

This brings me to the 9th Circuit decision. The "end users"/"customers" of Virtual Clinics a WEB DEVELOPING company, could also be subjected to LAWSUITS due to this company's negligence. Um...these people would be the "INNOCENT INFRINGERS" who would have no way of identifying a specific registered image in a BULK COMPILATION in order to try to protect themselves when it comes to "trusting" a company for hire such as in this case.

I agree with you. When I read the case, I thought that Virtual Clinics is the sort of defendant who ought to lose. They were in business developing websites. The websites they created subjected their clients who had hired them to create web sites to potential liability. We often image companies threatens who hired web developers-- so this was negligent on many levels.   So: yes Virtual Clinics deserved what they got.

Unfortunately, this seems to be a situation where "Hard cases make bad law". The fact that the 9th circuit doesn't consider who accepting this form of registration would affect clients of Virtual Clinics had the stock company chosen to sue them is unfortunate.  And for those clients-- who really would be innocent and non willful-- and for all those who might potentially receive threatening letters suggesting levies could be as high as in this case-- this case will create a large problem.

[lucia]

I should add: the 9th court not deeming that registration covered the collection only and not the individual photos wouldn't have "invalidated" registration. It would have recognized the existence of a perfectly valid registration: that pertaining to the collection. So I don't really understand the argument about "invalidating".

[Greg Troy (KeepFighting)]

I agree, if there ever was a case of willful infringement it was this one.  If you willfully infringe you deserve what you get and I have no sympathy for them.

[Oscar Michelen]

The wilfulness of the infringement did not help that's for sure; there's an old adage in law practice that you don't appeal cases with bad facts because "Bad Facts Make Bad Law" Of course here, the appellant had the "bad facts" on its side so it made sense to appeal. The decision has definitely emboldened many in this arena.