I find it interesting how many commentators express their understanding that legal briefs would be out of copyright, at least upon filing.
They're not. Though a fair use argument is likely easier to make, they're not public domain. But maybe they should be: become public domain upon publication in a docket.
That's exactly what the CDA says, section 230: that no internet service provider shall be treated as a publisher or speaker of information provided by another. And, that nothing in that section applies to intellectual property. https://www.law.cornell.edu/uscode/text/47/230
I was also concerned about it allowing software developed by federal government employees to be locked up by a license -- something that I'm pretty sure is not allowed, since works created by federal government employees are automatically in the public domain.
Actually, as we speak, US is looking to exactly add a "contract-based" license for government-developed code, apparently hoping to obtain through contract what it doesn't have via copyright: some restrictions:
On the bright side, the "restrictions" in this case are negligible, since it's an apache-like license.
The more important point, it seems to me, is that US gov appears to believe that a contract-based "license" for public domain code should have some teeth, going as far as potentially stopping use of the public domain code at all, if one breaks it.
There are allegations of infringement too, just not as basis for damages. There's another reason for that: the photos were probably not registered before infringement was discovered, so she wouldn't have the right to ask for statutory damages.
I agree there will be problems with interpretation of that document. The thing with it is that it also lists restrictions as it continues. Those restrictions don't seem possible if the intention was to put the images into the public domain properly. So I don't know; a judge might find that the intention was to give a broad license to them.
Yes, it's wrong. Courts have said that it is the prerogative of the copyright holder to renounce their rights, by making a very clear statement to that effect.
Part of the reason for the strange doubt that it's "possible" is that after Berne implementation act (1989) there hasn't been, to my knowledge, a case litigated successfully, that decided that x language is clear enough. So maybe the problem, if there is a real problem, is that we don't know what language exactly will convince a court today.
Both Getty and Alamy put their own copyright over the photos, and LCS shook down people for money for "infringement".
LCS is Getty. It appears to be a name under which Getty operated for a while, without any other incorporation than Getty. I believe it was a department within Getty, or so it looks like, in 2015.
It appears that in March 2016, LCS was incorporated. It might have been Getty's intention all along to incorporate LCS as a new company, but it did that only recently, and some internet commentators noticed that 3/4 owners of LCS are Getty's too, even after incorporation.
I just saw this, after I commented. Yes it will need examined.
One note: LoC should be added as joint plaintiff, not defendant. Because this document isn't what LoC is claiming, is what Carol signed, and the court might decide that LoC holds the copyright in question.
I'm surprised that the second article on Techdirt on this lawsuit still doesn't address the actual terms of Carol Highsmith's gift: https://www.documentcloud.org/documents/2999595-Gov-Uscourts-Nysd-460787-1-2.html
If you take a look, you will understand why unfortunately, a judge will have to interpret this contract, and the result isn't open and shut. The interpretation might be: 1) Carol kept copyright and gave a license to LoC and the public; 2) Carol granted all copyright to LoC in exchange for it making it available for free to the public; or, 3) Carol relinquished copyright and the work is the public domain.
On the bright side, Carol is suing under DMCA 1203, which says "anyone harmed can sue", she's not suing as copyright owner. So she has standing, in all 3 options.
But it will be difficult to prove the causes of action if the court will decide option 3.
The instrument of gift is this: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2250&context=historical
Yes, it will be a problem. Notice that it says sometimes she gave copyrights to the public, and then that she will be credited, and the library has restrictions on reproduction.
I expect the judge will have to rule on what the agreement really means.
The amazing part here is that Carol Highsmith still has standing to sue according to DMCA 1203, which says that "any injured person can sue", for false copyright management information. Even if the judge rules that the collection is in the public domain, she has been injured by Getty fraudulently chasing people down over her donated work.
Incidentally, I think the Techdirt should pay attention to the agreement, and post about it. The article assumes the copyright situation is clear and believes the complaint allegations fully, but this agreement will be problematic.
Yeah, I don't disagree. But, as noted in the complaint and this article, Getty has been sued before for misattributed photos, also by an individual photographer.
Carol Highsmith is a known name, not Jane Doe. While a Jane Doe deserves her rights vindicated just the same, I admit I believe the whole context here matters to a judge.
I would add that the TPP says that the TPM doesn't need to prevent an infringing use, it will apply no matter if the user isn't infringing any copyright. That changes the US law as I understand it after Chamberlain. If ratified, the DMCA will need to be amended to 'clarify' that it creates a new liability, without connection to an underlying copyright infringement.
I always thought it would be a really bad thing. So much uncertainty after the APIs were declared copyrightable can't bring anything worthy that I see. At least the fair use decision brings some hope that a number of actors would stop to think twice, before pursuing similar mindless claims.
I take comfort in the fact that the arguments for fair use would be similar in almost any case, as far as I see. They wouldn't apply only to too closely compatible software.
Now that you're asking though. A new trial on this and it alone should mean it goes to a circuit appeals court, not a federal circuit...
I would argue that all intended restorations, regardless of inaccuracies, should not be copyrightable.
It's precisely this point that the copyright estoppel doctrine addresses in US: when you claim to have tried hard to discover facts, realities, to picture something existent outside your imaginary, you cannot come back later and claim it wasn't real and have copyright over it.
While I don't know UK law, I get there seems to be a quick hearing, at which the judge listens to the parties, and it can award up to lost licensing fees to the (c) holder in case they win. With uplifts up to the court. Lawsuit fees can be around £100, with pro-bono lawyer.
From my limited information, I'd say it works great compared to the times and costs of US copyright proceedings, at least for simple cases.
Re:
Dastar specifically bars using Lanham Act instead of copyright, for a claim of false attribution.
I find it interesting how many commentators express their understanding that legal briefs would be out of copyright, at least upon filing.
They're not. Though a fair use argument is likely easier to make, they're not public domain. But maybe they should be: become public domain upon publication in a docket.
That's exactly what the CDA says, section 230: that no internet service provider shall be treated as a publisher or speaker of information provided by another.
And, that nothing in that section applies to intellectual property.
https://www.law.cornell.edu/uscode/text/47/230
Re: Protectionism
Your comment reminds me of Melancholy Elephants.
We'd better win the copyright wars sooner.
Don't be too sure...
Actually, as we speak, US is looking to exactly add a "contract-based" license for government-developed code, apparently hoping to obtain through contract what it doesn't have via copyright: some restrictions:
https://lists.opensource.org/pipermail/license-discuss/2016-July/019406.html
On the bright side, the "restrictions" in this case are negligible, since it's an apache-like license.
The more important point, it seems to me, is that US gov appears to believe that a contract-based "license" for public domain code should have some teeth, going as far as potentially stopping use of the public domain code at all, if one breaks it.
That can't be right. And it would be bad policy.
Re: Not a clear cut case at all
There are allegations of infringement too, just not as basis for damages. There's another reason for that: the photos were probably not registered before infringement was discovered, so she wouldn't have the right to ask for statutory damages.
I agree there will be problems with interpretation of that document. The thing with it is that it also lists restrictions as it continues. Those restrictions don't seem possible if the intention was to put the images into the public domain properly. So I don't know; a judge might find that the intention was to give a broad license to them.
Re: Re: RIGHTS AND RESTRICTIONS PAGE AT LIBRARY OF CONGRESS
Yes, it's wrong. Courts have said that it is the prerogative of the copyright holder to renounce their rights, by making a very clear statement to that effect.
Part of the reason for the strange doubt that it's "possible" is that after Berne implementation act (1989) there hasn't been, to my knowledge, a case litigated successfully, that decided that x language is clear enough. So maybe the problem, if there is a real problem, is that we don't know what language exactly will convince a court today.
Re: Public Doman
Both Getty and Alamy put their own copyright over the photos, and LCS shook down people for money for "infringement".
LCS is Getty. It appears to be a name under which Getty operated for a while, without any other incorporation than Getty. I believe it was a department within Getty, or so it looks like, in 2015.
It appears that in March 2016, LCS was incorporated. It might have been Getty's intention all along to incorporate LCS as a new company, but it did that only recently, and some internet commentators noticed that 3/4 owners of LCS are Getty's too, even after incorporation.
Re: Re: It IS in the public domain
I just saw this, after I commented. Yes it will need examined.
One note: LoC should be added as joint plaintiff, not defendant. Because this document isn't what LoC is claiming, is what Carol signed, and the court might decide that LoC holds the copyright in question.
I'm surprised that the second article on Techdirt on this lawsuit still doesn't address the actual terms of Carol Highsmith's gift:
https://www.documentcloud.org/documents/2999595-Gov-Uscourts-Nysd-460787-1-2.html
If you take a look, you will understand why unfortunately, a judge will have to interpret this contract, and the result isn't open and shut.
The interpretation might be: 1) Carol kept copyright and gave a license to LoC and the public; 2) Carol granted all copyright to LoC in exchange for it making it available for free to the public; or, 3) Carol relinquished copyright and the work is the public domain.
On the bright side, Carol is suing under DMCA 1203, which says "anyone harmed can sue", she's not suing as copyright owner. So she has standing, in all 3 options.
But it will be difficult to prove the causes of action if the court will decide option 3.
Re: LoC disagrees with Highsmith
The instrument of gift is this:
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2250&context=historical
Yes, it will be a problem. Notice that it says sometimes she gave copyrights to the public, and then that she will be credited, and the library has restrictions on reproduction.
I expect the judge will have to rule on what the agreement really means.
The amazing part here is that Carol Highsmith still has standing to sue according to DMCA 1203, which says that "any injured person can sue", for false copyright management information. Even if the judge rules that the collection is in the public domain, she has been injured by Getty fraudulently chasing people down over her donated work.
Incidentally, I think the Techdirt should pay attention to the agreement, and post about it. The article assumes the copyright situation is clear and believes the complaint allegations fully, but this agreement will be problematic.
Re:
Yes, they're supposed to have an unsubscribe link.
Re: 'Please hold all apluase until after the high-court treatment is handed out.'
Yeah, I don't disagree. But, as noted in the complaint and this article, Getty has been sued before for misattributed photos, also by an individual photographer.
Carol Highsmith is a known name, not Jane Doe. While a Jane Doe deserves her rights vindicated just the same, I admit I believe the whole context here matters to a judge.
About damn time
About damn time someone sues a copyright aggregator for misleading people about copyright rights they do not have.
Re: Masterful complaint
Brilliant outline, thanks.
I would add that the TPP says that the TPM doesn't need to prevent an infringing use, it will apply no matter if the user isn't infringing any copyright. That changes the US law as I understand it after Chamberlain. If ratified, the DMCA will need to be amended to 'clarify' that it creates a new liability, without connection to an underlying copyright infringement.
Re: I predict a narrow and unsatisfying punt
Can you give an example of such rejections?
Re: Practice common in U.S.
For the benefit of other readers, here's the discussion mentioned:
http://lj.libraryjournal.com/2014/08/opinion/peer-to-peer-review/asserting-rights-we-dont-have-libraries-and-permission-to-publish-peer-to-peer-review/
Re:
I always thought it would be a really bad thing. So much uncertainty after the APIs were declared copyrightable can't bring anything worthy that I see. At least the fair use decision brings some hope that a number of actors would stop to think twice, before pursuing similar mindless claims.
I take comfort in the fact that the arguments for fair use would be similar in almost any case, as far as I see. They wouldn't apply only to too closely compatible software.
Now that you're asking though. A new trial on this and it alone should mean it goes to a circuit appeals court, not a federal circuit...
Re: Re: Re: copyrightable derivative work?
I would argue that all intended restorations, regardless of inaccuracies, should not be copyrightable.
It's precisely this point that the copyright estoppel doctrine addresses in US: when you claim to have tried hard to discover facts, realities, to picture something existent outside your imaginary, you cannot come back later and claim it wasn't real and have copyright over it.
While I don't know UK law, I get there seems to be a quick hearing, at which the judge listens to the parties, and it can award up to lost licensing fees to the (c) holder in case they win. With uplifts up to the court. Lawsuit fees can be around £100, with pro-bono lawyer.
From my limited information, I'd say it works great compared to the times and costs of US copyright proceedings, at least for simple cases.