Getty Images is still threatening people, so it seems from comments that continue to come in on my earlier posting on Watching Getty Images Watching Canadians.
Here's an update to November 11, 2008.
To date, Getty Images has still launched only one copyright infringement action in the Federal Court in Canada, according to the Federal Court’s website as of November 11, 2008. That was on March 28, 2008. It is possible that it has sued in one or more provincial courts, but this would not make a lot of sense if it is planning a cookie cutter approach.
Masterfile, another stock photo company, has filed several actions in the Federal Court, many of them discontinued, which suggests that there may have been a settlement in such instances. I haven’t actually looked at any of the files, since details are not available online. Masterfile filed several statements of claim on January 22, 2008. As of November 11, 2008 there is nothing more recent on the Federal Court website.
An American law firm has posted a couple of comments on my blog looking for business from recipients of letters from Getty.
I have taken these posts down because Canadians may not be aware that an American law firm cannot act for them in a Canadian court. Furthermore, Canadian and American copyright law differ in many respects.
Canadians who are looking for advice should contact David Fewer at the wonderful Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) at the University of Ottawa
His phone number is 613-562-5800 ext. 2558.
Canadians should be aware of the provisions regarding statutory minimum damages. These can range as high as $20,000 per infringed image. But more importantly, a judge can lower the amount to as little as $200 per infringed image, or even less if there are multiple images involved. Here’s the provision in the Copyright Act:
Statutory damages
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
Where defendant unaware of infringement
(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.
Special case
(3) Where
(a) there is more than one work or other subject-matter in a single medium, and
(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement, the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.
HK
Showing posts with label demand letter. Show all posts
Showing posts with label demand letter. Show all posts
Tuesday, November 11, 2008
Tuesday, May 13, 2008
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
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
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