Copyright enforcement gone wild
As someone interested in the intersection of culture, law, and technology, I would like to share my thoughts after reading commentary that has been spread through the Twittersphere about the article “Automated image recognition: How using ‘free’ photos on the internet can lead to lawsuits and fines” that was published last week.
Since its publication, there have been further interesting developments.
It’s a fascinating story about how a business model can be created and sustained out of pursuing alleged infringers of licensed ‘free-to-use’ images with significant financial penalties, ultimately persuading them to settle out of court. The cause? Failing to provide proper attribution according to the terms of the license.
Presumably, the profit is there because once someone gets an engine like this running, all they have to do is wait to collect payments after sending out legal escalation notices.
It raises the questions below, which I will answer from my perspective:
- This business model taking advantage of ‘free-to-use’ image licenses is possible, but should it be allowed with no exceptions?
- Is it not enough to require the alleged infringer to correct their mistake and, if proportionate, take other non-monetary steps to remedy the matter?
- How much education should individuals and businesses have on their copyright obligations?
- Should our legal systems take into account the intended ‘free’ financial value of the image even though the owner can prove infringement occurred?
As the article brings into focus interesting considerations about copyright law and litigation, automation tools and their potential, and the role of communication in resolving disputes, and I intend to write more about these topics in detail separately from this post.
Q: This business model taking advantage of ‘free-to-use’ image licenses is possible, but should it be allowed with no exceptions?
A: The primary element of consideration in the license agreement is not related to money. Instead, the user of the image may make use of the image according to the terms as long as they provide the relevant attribution or credit to the “Original Author”. And what if that credit isn’t given? What was it that the author intended when they allowed others to use the image? To earn money? No, it was to get credit.
There is the argument that if the image helped the user earn money while no credit was given, then the image viewers who helped the user earn money did not get to appreciate the authorship of the image. It is this lack of appreciation that is harmful to the author.
How can the alleged infringer make up for this harm? Paying money is one way, but it is the first way? Should it even be allowed to be the first way? I argue “no”. Indeed, Creative Commons makes this more explicit in the updated version of the license agreement under Section 6(b)(1). Granted, there is the perspective that the complex set of available licenses that are promoted and maintained by Creative Commons may well have helped certain copyright owners thrive on such a business model:
However, should consumers be protected further, even enterprise ones, from being pursued for money in all cases? I argue “no” here as well. If the remedy that the user can provide, such as curing the violation, does not provide the author what they could have gotten had the credit been provided from the outset, then it is quite possible that the author could have been deprived of potential commercial benefits and the user similarly enriched. How? This is a complex topic which I will not aim to address in full in a blog post.
To keep it simple, I am explicitly recommending an exception in the law to account for protection against being pursued for money with respect to “money-free” contracts if the market will not adapt its practices (see next question).
Q: Is it not enough to require the alleged infringer to correct their mistake and, if proportionate, take other non-monetary steps to remedy the matter?
A: If legal systems around the world should update their laws based on my opinion (I can dream, right?), I would suggest the following in order to tame copyright enforcement (effectively, to stop the copyright trolls):
For any commercial contracts involving the licensing of copyrighted works. If attribution for using the work was not provided as required under the license agreement, and the agreement did not require monetary consideration for the use of the work, the author may not seek monetary damages from the alleged infringer provided that the alleged infringer should, depending on the duration and nature of the breach: (1) cure the lack of attribution within 30 days of receiving the notice, (2) publish a statement online apologizing for the violation, including providing further marketing support to the author proportionate to the harm of not providing credit from the outset, and (3) not have conducted a breach that would warrant monetary remedy. A monetary remedy could be pursued under point (3) if it is not possible to provide support mentioned in point (2) in a proportionate manner that remedies the harm to the author.
It should be enough to take non-monetary steps to remedy the matter, but in our market system, there are valid cases where monetary remedies would still be reasonable. For example, if a business uses another’s materials without permission, and both parties are working in a similar industry, then there is a legitimate competition concern here. It may well be the case that the author’s content may have been deprived of getting the attention that it was seeking when the topic was still relevant. I believe the proposed “spirit” above accounts for this, in which case the parties would have to negotiate what is the reasonable settlement on a case-by-case basis.
Q: How much education should individuals and businesses have on their copyright obligations?
A: The excuse may be used, “the intern did it”. Is that a good enough excuse? While I argue that seeking money for free-to-use images is not reasonable, it is not equally reasonable that our society and its people should remain unaware of their surroundings.
All publishers, ranging from bloggers to enterprise news corporations, should think about what they are publishing before they click to publish. However, should the default of the law allow them to get pursued for money if they could correct a violation of copyright for a free-to-use image? I have already argued “no”, and I have provided justification in the answer to the previous question.
Q: Should our legal systems take into account the intended ‘free’ financial value of the image even though the owner can prove infringement occurred?
A: The answer is provided in the answer to the second question, but just to be clear, I argue “yes”. The proposed points in that answer account for the lack of monetary value of the image with respect to the license agreement.
My opinion of what should happen is not the black letter law, though, so all publishers should remain vigilant and enhance their awareness of what could be possible if they do not handle copyrighted works with care.
It is also evident that the lack of awareness by society on this form of copyright enforcement has contributed both to market forces capitalizing on the lack of awareness and to businesses and consumers not generally discussing the topic. Perhaps if we engage in the discussion more loudly whether on Twitter or within our workplaces, we might be able to reduce people’s willingness to pursue such a monetization strategy. However, I believe a change to the law will stop the practice right in its tracks.
As Diane Peters, General Counsel of Creative Commons, stated in the article, “we don’t like…our tools being used opportunistically” where “litigation is threatened as the first course of action”.
That their tools are being used opportunistically where litigation is threatened as the first course of action is just one more example of copyright enforcement going wild.
This blog post is derived from the one I published on LinkedIn.
This is a personal blog. The views and opinions expressed in this article are those of the author and do not represent those of people, institutions or organizations that the author may or may not be associated with in a professional or personal capacity. All information is provided on an as-is basis.
