PDN Article Featuring "Kindly Uncle" Glen Carner

[SoylentGreen]

PDN Article Featuring "Kindly Uncle" Glen Carner

http://pdnonline.com/features/Can-a-Kinder-Gentle-7134.shtml

I apologize in advance if this has been posted already.
It's good that Uncle Glen wants to help us with our (alleged) infringement problem; glad that he's on our side. lol.

S.G.

[Robert Krausankas (BuddhaPi)]

I guess Ill have to comment on this one as well...Just when Glen and I were becoming "friends"! : )

the honeymoon might be over...

[Lettered]

[sarcasm] gotta love pdn's hard hitting "in your face" investigative journalism [/sarcasm]

"PDN: It sounds like you're bending over backwards to be nice to people who are stealing images. Why is that?"

[Matthew Chan]

SG, Welcome Back!

And nice find!  It appears I am going to have to make some comments on this brand-new (and unexpected) article also.

[SoylentGreen]

Thanks a lot Matt, it's good to be back!!

"Lettered" makes a good point.
There are several well-documented past actions taken by Mr Carner and those under his employ that raised a few eyebrows, to say the least.
The article doesn't touch on the fact that some of Mr Carner's art collections are offered for free on dozens of websites, and Mr Carner seems to have taken no action to rectify that.
Carner and his company hired a couple of lawyers in the recent past.  While these people are not disbarred, they are clearly not in the business of “legal representation” any longer.
While I do not expect the author of the article to attack Mr Carner, the author missed a great opportunity to address some major concerns surrounding Carner and his operation.

---


Now, people make mistakes.  If Mr Carner has "turned over a new leaf", then that's a good thing for sure.
However, I'm not convinced that much has changed at all.

Mr Carner and his companies no longer litigate on behalf of their clients.
But, according to the article, he receives 40 percent of any revenues gained through litigation. His name just won’t appear on the court docket as a plaintiff.

Mr Carner stated that he does not pursue bloggers any longer. In any case, there's probably not much money to be made in doing so.
There’s usually no way to track these bloggers down, and make them pay.  Certified letters and lawsuits can’t really be sent to email addresses.

Carner may only demand the “list price” from alleged infringers.  But that’s still a king’s ransom compared to what similar images can be purchased elsewhere for.

His business model really hasn’t changed much, only his communications strategy.
It’s actually rather clever that he no longer mentions “copyright infringement” in his communications to alleged infringers.
That conveniently bypasses questions about registration with the copyright office, and inquiries as to whom has the right to collect in legal terms.

I think that Carner might be alluding to Tylor’s exit from CSI in the article as follows:
"PDN: What criticism are you getting from photographers or other agencies about your position?
GC: We have had photographers who didn't want to work with us, in the retroactive licensing side of it, because they felt the recoveries were too minimal."

---


I “get” that Carner  wants to treat alleged infringers as “customers”.  But, infringers (alleged or otherwise) aren’t customers.
Those that infringe rarely go from using images for free, all the way to paying absolute top dollar.
In the past, I’ve actually acknowledged that companies have the right to ask for compensation for their products/services.
However, what people really want is cease and desist letters.  Not letters that demand (politely) top-dollar prices, and the “customer” still gets sued if he/she doesn’t pay up.




S.G.

[Mulligan]

S.G., welcome back. Thanks for the good insights and analysis of Carner's new business model.

Too bad Carner and his ilk can't use a business model that doesn't take advantage of people making innocent mistakes with images. (I'd estimate the percentage of conscious infringement is quite low.)

But then guys like Carner would have to actually put in an honest day's labor, and God knows trolls aren't going to do that when they can extract financial settlements simply by mailing letters.

It's unfortunate (and telling) that Carner has never addressed the important matter image seeding.

Happy New Year to you, S.G., and to all the other ELI regulars and visitors who do what they can to put an end to these extrajudicial payment extraction schemes.

[Matthew Chan]

I would say that Glen has been more honest in this article than I have ever seen before.  The one thing I can respect about Glen in the article is that he acknowledges the "reality" of the situation, conflict, dispute, debate.

Dealing in "reality" very much agrees and resonates with my personal and professional sensibilities.  If you can't win the philosophical debate or the opponent refuses to accept your arguments, bringing it to "reality" can be an ice-cold splash of water to the face.  Glen has mostly certainly learned "reality" the hard way, and I think his peers in the business best start listening to some of his advice and pay attention to his first-hand observations.

[Lettered]

I sort of agree with Glen Carter's approach.  Where I disagree with him:

1) The Market value of the image should be used for the "demand" and be based on sales history.  Where no sales history exists, a market average for similar images could be used.

2) The above soft handed approach should not be required for blatant thieves of registered works.  For example, if someone is a repeat offender, or a self confessed theif ("screw you I'll steal any image I want"), then I think some of the more heavy handed approaches we've seen (e.g. Masterfile) might be in order.

[lucia]

I sort of agree with Glen Carter's approach.  Where I disagree with him:

1) The Market value of the image should be used for the "demand" and be based on sales history.  Where no sales history exists, a market average for similar images could be used.

If the image has been made available for more than 6 months and no one has bought/licensed it at that price, I think that should be taken as evidence the requested price is too high.

Moreover, I think a photographers failure to even bother to register a copyright on an image made available on the web should be taken as evidence the photographer thought the likely revenue stream from that image was low.   

There are photographers who take photos that are potentially very lucrative.   These can include celebrity and sports photos.  (example: http://c4241337.r37.cf2.rackcdn.com/2012/215/239/gabrielle-douglas-performs-on-the-balance-beam_420.jpg )  Those photographers or their employers are well advised to register copyright-- and I imagine they do register them.

In contrast, people who take post images to flicker generally don't bother to spend the relatively modest copyright registration fees because they don't anticipate sales sufficient to cover the fee nor the value of their time filling out forms.

2) The above soft handed approach should not be required for blatant thieves of registered works.  For example, if someone is a repeat offender, or a self confessed theif ("screw you I'll steal any image I want"), then I think some of the more heavy handed approaches we've seen (e.g. Masterfile) might be in order.

If someone was stealing images to populate a "free wall paper" site used to draw in clicks to advertisers, that copyright violation should be penalized heavily. I don't think we've read of a single example here where a Getty Letter was sent to someone running a free wallpaper site.

[Oscar Michelen]

You would have to have a pretty steady and significant sales stream to show that your sales history is "market value." Three or four sales of the images over a year or more is not enough to establish that this is what the image is worth, when you consider that it would be easy to show that similar images are being bought every day for far less. In one of the key cases in this area, Davis v. The Gap the court (NY Federal Appeals Court, The Second Circuit)  established that fair market value of a lost license fee is the appropriate test in assessing "actual damages": 

"We recognize that awarding the copyright owner the lost license fee can risk abuse. Once the defendant has infringed, the owner may claim unreasonable amounts as the license fee -- to wit Davis's demand for an award of $2.5 million. The law therefore exacts that the amount of damages may not be based on "undue speculation. The question is not what the owner would have charged, but rather what is the fair market value.

Davis v. The Gap,246 F.3d 152 (2d Cir. 2001).  Another interesting section on this case talks about how de minimis (minimal or trivial) infringement is not infringement at all: 

"The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on Jose de Creeft's Alice in Wonderland sculpture. We record television programs aired while we are out, so as to watch them at a more convenient hour.8 Waiters at a restaurant sing "Happy Birthday" at a patron's table. When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement."   

I have often cited Davis to Getty and others as precedent establishing (1) that while a court will look to a company's licensing fee, in the end it is the fair market value of the item that will count and (2) minimal infringement is not infringement at all. 

[Robert Krausankas (BuddhaPi)]

Thanx for this lesson Oscar!! This is very interesting indeed...

Disney is known top be very protective of their IP, yet when I visit the parks, they encourage me to pose with Tigger or Mickey for pictures..I assume if I post said image of Tigger it would be "trivial" as obviosly they own Tigger and anything associated with him/her...

Vincent K Tylor is in essence doing the same thing by encouraging folks to "download" his FREE wallpaper images..

Somehow I have a feeling that "Freakshow" Greg Troy will be snapping this little nugget up and adding it to his packet, that must be nearing the size of "War and Peace" at this point!

[SoylentGreen]

Man, Oscar really posted a couple of gems there... he totally nailed it.

It's a fact that de-minimis infringements are now the norm, and are pretty much accepted by the public at large.
Successful businesses have even been created based on this (Pinterest, I'm looking in your direction).
While this may appear to create a huge revenue stream for the trolls, that revenue stream exists only if the trolls can force people to pay monies on a regular basis.

Now, I'm not in favor of infringements, but the copyright trolls will lose in the long run.
Those businesses will fail, and people will buy from companies that offer good selection at the prices that people can afford.

S.G.

[Greg Troy (KeepFighting)]

Oscar, thank you so much for posting this case and explaining it. This is a real nugget here and I am already looking for the case to add to my collection of information.

@ Robert
You know “Freakshow” would never pass up a nugget like this.  It will be added to my collection tonight and by the weekend my letters in the “ready to go” file will have been updated to include this new nugget.

[Mulligan]

Added to my resource folder as declaratory judgment ammunition should I ever hear from Getty or its copyright troll lawyer and collection agent Timothy B. McCormack or his "Mistress of Misrepresentation" paralegal Ashanti A. Taylor. Thanks, Oscar!

[Jerry Witt (mcfilms)]

"trivial copying is not an infringement"

Thank you for posting this Oscar. I'm happy to see we are finding more and more actual case law that supports the general anti-extortion position.