On 7/7/05, Ray Saintonge <saintonge(a)telus.net> wrote:
(Which to me
says, if we are not going to purge all of them, then we
should try and subcategorize them into smaller fair use categories,
similar to those used for book covers and so forth, but expand to
other relatively "safe" things such as "historical images" and
"headshots" and "large scientific instruments" or something like
that.)
That seems sensible. Can't we just adapt the existing category system
for this purpose?
Yes, I think so. Sub-categories for "fair use" also would likely mean
that the image so tagged had been thought about a bit by at least one
person and would hopefully cut down on the things needed for review.
One also has to distinguish between civil and criminal
infringement.
Criminal infringement is a highly unlikely scenario because of the need
to prove wilfulness and outright refusal to comply when there is no
doubt about the person's copyrights. There would also need to be
"commercial advantage or private financial gain". That would require a
level of stupidity beyond what our most ardent copyright crusaders would
exhibit.
For civil infringements, which can only be based on specific items, the
claimant needs to jump through a few hoops before he gets his big payoff.
He needs to have issued a takedown notice.
He needs to have registered his copyright. This is not needed for
simply owning the copyright, but is needed to start an infringement action.
He needs to sort out which court has jurisdiction and where the
possible trial would take place
He needs to counter any reasonable fair use defense that we may
raise at trial.
He needs to elect to have statutory penalties apply. This one's a
no-brainer since a claim on profits would get him laughed out of court,
and actual damages to him will likely be negligible.
Hmm... well, maybe. Again, I'm not a lawyer, but I've heard of people
claiming damages for other things which clearly had no proof of damage
or obvious deficit. Additionally, it would not be hard for a company
like Getty Images or Corbis to say, "We make our income licensing
photographs to publications, and you're blatantly using them in yours
without paying us a cent."
This is not an argument for a you-can't-catch-us
attitude. It is a
strong argument against copyright paranoia.
I still don't think it is paranoia to say that in this day and age it
is not a good idea to sit willingly on 14,000 pieces of copyrighted
works, each of which say on them, "We know this is probably a form of
infringement, but we think we're safe by threatening a preemptive
invocation of one small and relatively weak part of U.S. copyright
law." Since many of the companies we'd be infringing upon are those
which make their business selling photographs to, say, news sources
and encyclopedias, I don't think we're quite out of the clear in any
sense. What's the old Burroughs quote -- paranoia is just knowing
exactly who is out to get you? ;-)
FF