Watching Getty Images Watching Canadians

I have become aware of multiple instances recently in which Getty Images has been sending demand letters by e-mail to Canadians whose websites allegedly have unlicensed copies of images allegedly owned by Getty Images. They are probably using some sort of “bot” to find these images.

Assuming that these demands actually emanate from Getty Images, they raise some serious questions.

Getty Images is demanding exorbitant amounts of money for what appear to be trivial infringements at the most in the case of which I am aware, and the demands are far in excess of what any Canadian court would ever likely award even after a trial. The actual damages in terms of the alleged infringer’s profits are likely zero, since the alleged infringers are not selling the images as such or directly profiting in any way from their use. The cost of an actual license in many cases would be quite low and a very small fraction of the demand. Even statutory minimum damages would likely be at the minimum end of the scale, which is $500 per work, which can in turn be reduced to $200 in some cases, and even less still per work where there are many works involved in appropriate circumstances.

The settlement rhetoric I have seen or heard about is extremely formulaic, aggressive and threatening, and the settlement offers are still far beyond what a Court would likely award, absent commercial intent and behaviour by the defendant.

Naturally, it is rarely going to be cost effective for any of the recipients of these letters to retain counsel to actually fight Getty Images in court over a few thousand dollars. This is the nasty, brutish economics of statutory damages at work - as practised most obviously up to now by the RIAA.

But likewise, it may not be cost effective for Getty Images to actually sue someone where there is no real commercial aspect of the alleged infringement and the actual damages recoverable in court may be only a few hundred dollars at most, if properly defended. A bad result in a test case could prove very problematic for Getty Images.

This all raises questions about misuse and abuse of copyright rights. Read Justice Bastarache’s comments in the Supreme Court of Canada's landmark decision in Kraft v. Euro Excellence at para. 98 on this point. While these comments were admittedly obiter dicta, two of his colleagues joined in and the comments as such were not contradicted. The issue of abuse and misuse of copyright rights is now open for serious argument in Canada. . In principle, the copyright misuse doctrine could render any copyright rights unenforceable.

I have spoken to David Fewer, Counsel at the wonderful CIPPIC clinic at the University of Ottawa, who has agreed to keep track of these demands from Getty Images and to consider CIPPIC’s possible involvement. He can be reached at 613-562-5800 ext. 2558. His e-mail is:

dfewer@uottawa.ca

All rights holders are certainly entitled to enforce their legitimate rights in a legitimate way. But they should not be permitted to do so in a manner that is abusive and/or to misuse these rights. This is Canada and such behaviour is likely to prove most unwelcome in Canadian courts, especially after the signal sent by Justice Bastarache.

Policy makers thinking about a Canadian DMCA should take note. If this type of thing is happening now, what may we expect if these types of American enforcement techniques are made even easier and more potent?

Getty Images should know that they, too, are being watched.

HK