Judge Rules Twitter Images Cannot Be Used Commercially

New submitter trekkie314 writes "Reuters reports that a Manhattan District Judge has ruled that AFP and the Washington Post infringed a photographer's copyright by re-using photos he posted on his Twitter account. The judge rejected AFP's claim that a Twitter post was equivalent to making the images available for anyone to use (drawing a distinction between allowing users to re-tweet within the social network and the commercial use of content). The judge also ruled against the photographer's request that he be compensated for each person that viewed the photos, ruling instead that damages would be granted once per infringing image only. This last point might have interesting implications in file-sharing cases — can it set a precedent against massive judgments against peer-to-peer file-sharers?"

Comments

Yay double standards

[Anonymous Coward]

If an individual were to tweet an image originally made available on a large corporation's website, you can bet the Judge would rule that damages would be granted per each viewing of it.

Re:Yay double standards

[Anonymous Coward]

Corporations can afford to hire better lawyers.

Re:Yay double standards

[UltraZelda64]

Am I wrong in assuming that probably every corporation's website has a copyright notice in small print at the bottom of all of the pages, complete with an "all rights reserved" notice? Meanwhile social, user content-based sites are governed typically by a Terms of Service and Privacy Policy page (which can, of course change without notice)? So what's the confusion?

Re:Yay double standards

[Zordak]

If an individual were to tweet an image originally made available on a large corporation's website, you can bet the Judge would rule that damages would be granted per each viewing of it.

No they wouldn't. Statutory damages for copyrights are always awarded per infringed work. The only discretion for the fact finder is the amount, which can vary anywhere between $200 for innocent infringement to $150,000 for willful infringement. But it is always per work, which means that it doesn't matter if two people saw it or ten million. This is exactly what is happening in the RIAA file sharing cases, by the way. The damages are so large because there are lots of infringed works (e.g., if you shared 10 songs, damages could be up to $1.5 million).

If you want damages based on how many people saw the picture, you would have to prove those as actual damages, either by proving that there is a profit per view attributable to the infringer, or that there is a profit you lost per infringing view. That's a lot harder than just collecting statutory damages.

Re:Yay double standards

[Anonymous Coward]

I think they chose this outcome. The alternative was the possibility of any copyrighted work being free to use if its been put on the internet.

Re:Yay double standards

[cheekyjohnson]

That's a lot harder than just collecting statutory damages.

Due process is also hard and costly. Then again, I wouldn't be surprised if corporations and the government wanted to get rid of that, too...

Re:Yay double standards

[cffrost]

Statutory damages for copyrights are always awarded per infringed work. The only discretion for the fact finder is the amount, which can vary anywhere between $200 for innocent infringement to $150,000 for willful infringement. But it is always per work, which means that it doesn't matter if two people saw it or ten million. This is exactly what is happening in the RIAA file sharing cases, by the way. The damages are so large because there are lots of infringed works (e.g., if you shared 10 songs, damages could be up to $1.5 million).

At whose discretion is the delineation of what constitutes a single "work?"

To elaborate: If a P2P user is sued for allegedly sharing (for example,) two albums of equal play-length and file size*, each in its own monolithic archive file (e.g., .rar), but one album contains ten tracks and the other is a single-track DJ set, would a court more likely consider this two, or eleven works/infringements? If the latter is the norm, couldn't, say, a publisher sue for each chapter/recipe/etc. contained in an book, and so forth?

Re:Yay double standards

[gnasher719]

To elaborate: If a P2P user is sued for allegedly sharing (for example,) two albums of equal play-length and file size*, each in its own monolithic archive file (e.g., .rar), but one album contains ten tracks and the other is a single-track DJ set, would a court more likely consider this two, or eleven works/infringements? If the latter is the norm, couldn't, say, a publisher sue for each chapter/recipe/etc. contained in an book, and so forth?

In Apple vs. Psystar, Psystar was found guilty of making about 700 illegal copies of MacOS X. MacOS X was counted as _one_ work, and Psystar was ordered to pay $30,000.

So it's quite simple: You count separate works. A CD with 30 two minute pop songs is 30 works. Mike Oldfield's one hour Amarok is one work. MacOS X is one work. War and Peace is one work. 300 short stories are 300 works.

Re:Yay double standards

[AmiMoJo]

If you want damages based on how many people saw the picture, you would have to prove those as actual damages, either by proving that there is a profit per view attributable to the infringer, or that there is a profit you lost per infringing view.

In other words the GP was right, a corporation would be able to claim they lost ad revenue from page impressions or paid viewings of the image and claim damages. An individual would find it much harder if the image was not produced for some commercial purpose.

Re:Yay double standards

[Zordak]

A single "work" is whatever is registered at the Copyright office. If you have 100 photographs and register each one separately, then you have 100 separate works. If you register them all together as a collection, you have one work. The catch is, to get statutory damages, you have to register before infringement starts or within 3 months of first publication. So you have to decide in advance whether it's worth it to pay 100 separate $40 registration fees or one single registration fee.

Re:Yay double standards

[Zordak]

Nobody got rid of actual copyright damages. Statutory damages are just easier to get if you qualify for them. It's the plaintiff's choice whether to seek actual damages or not. If you can prove them, they might be much more than statutory damages. Or they might be next to nothing and impossible to prove.

Re:Yay double standards

[squiggleslash]

It's not double standards. The submitter is misinformed. It is indeed the case that when a music publisher sues you and the courts calculate a fine, the fine is per work, not per (other) person who made a copy. If, somehow, the copyright holder were able to prove that you hosted a single copy of "Milkshake" (or whatever the devil it is you young people listen to these days) and it was downloaded ten million times, the fine would still be, at most, $150,000 (if the copyright holder can show the infringement was willful.) The fine is variable and can be anything between $200 and $150,000 depending on a range of different factors, none of which are "How many copies were made".

The reason you see such high fines isn't because "The Man" gets his laws differently, it's because $150,000 x # songs (the theoretical maximum for hosting on your P2P client) is a lot of money, and because the most high profile cases have been people being sued who have pretty much openly doing everything they can to annoy the judges and juries involved.

Re:Yay double standards

[Zordak]

If the corporation has provable damages, why shouldn't it get the damages it can prove? That's not a double standard. It applies to anybody. Either prove your damages, or seek statutory damages if you qualify.

Re:Yay double standards

[cffrost]

I framed my question based upon the understanding that under US law, everything anyone creates that can be considered a "work" (for example, these comments) is protected by copyright from the time the work is created... Am I mistaken, or does the registration process merely serve to codify/insure the rights-holders' claims?

Re:Yay double standards

[Anonymous Coward]

If the corporation has provable damages, why shouldn't it get the damages it can prove? That's not a double standard. It applies to anybody. Either prove your damages, or seek statutory damages if you qualify.

Except that the MAFIAA's (Music And Film Association of America) 'proof of damages' consists of asserting "We have evidence that [work] was downloaded from [file-sharing location] three hundred times; that is three hundred lost sales. Because we value [work] at $5,000, we are asking for $1,500,000 in damages. No, the fact that we're selling copies of [work] for $9.99 has nothing to do with its value. In fact, my principals have informed me that the actual value of [work] is $10,000, so we're going to have to double the amount of damages we're asking for." and the courts rolling over and accepting this.

Re:Yay double standards

[Zordak]

You are correct that anything with more than "de minimis" creativity can be considered a separate copyrighted work. Your comment, for example, would be a "work" under the copyright law, and copyright automatically attached to it as soon as you typed it. But before you can sue somebody on that work in federal court, you have to register it. As I said, the catch is that you have to decide what to register before infringement starts if you want statutory damages. If you wait until after infringement has already started, you can only get actual damages (if you prove them). In that case, it's not so important how many distinct works you have, though it can still matter for some other purposes.

Re:Yay double standards

[Painted]

No, it's not- you're works are copyrighted regardless of registration or not. I feel you're deliberately misleading us.

Re:Yay double standards

[pbhj]

>A single "work" is whatever is registered at the Copyright office //

You're not a copyright lawyer then I take it.

Re:Yay double standards

[cheekyjohnson]

Nobody got rid of actual copyright damages.

I probably didn't phrase it correctly. I meant to say that I think the statutory damages for copyright are just ridiculous, and that sometimes the excuse that people make for unjust laws is "it's too hard to punish people any other way." Or at least, it seems that way. It's just a convenient way to ruin someone's life if the corporations can't prove actual 'damages.'

Re:Yay double standards

[DarwinSurvivor]

Umm, that's pretty much the decision they were ASKING for.

Re:Yay double standards

[DarwinSurvivor]

MacOS X contains many works within in, all in individual files. Your "simple" answer isn't as simple as you think it is. For instance, many classical pieces were written in "parts", all of which would now fit on a single CD. If those works were still under copyright, would each part be an infringement or would the entire piece be 1 infringement?

Re:Yay double standards

[Zordak]

Having a copyright and being registered are not the same thing.

Re:Yay double standards

[Zordak]

Actually, yes I am. 17 U.S.C. 411(a):

(a) Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), [1] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

The fact that you have a copyright doesn't mean you can sue on it. If you want to sue, you have to register it.

Re:Yay double standards

[Zordak]

I don't watch all the RIAA cases closely, but at least in the Jammie Thomas case, the labels have been seeking statutory damages, and it's the jury that keeps nailing her with huge statutory damages for willful infringement. The judge actually tried to reduce it, then got smacked down on appeal, then there was a new trial and the jury nailed her with an even bigger judgment.

Re:Yay double standards

[cffrost]

Thank you for taking the time to answer all of my questions—patiently, promptly, plainly, and pro bono. Despite my anti-imaginary-property leanings, in my book*, I say that you, sir, are a gentleman and a scholar. :o)

* My book, entitled "Slashdot Comment History of User cffrost (885375) with Addendums" is hereby released into the public domain. No rights reserved.

just a district judge

[Anonymous Coward]

Yeah right let's see what happens once this hits a higher court. Let me guess, AFP is "too big to fail" and since the photographer is only a person, his rights aren't quite equal enough.

Re:just a district judge

[bondsbw]

Aren't corporations only people too?

Re:just a district judge

[JeanCroix]

Only rich people, with huge legal departments.

Re:just a district judge

[Anonymous Coward]

Aren't corporations only people too?

Not quite... corporations are a mob with psychopaths at the helm.

Old News

[Jetra]

Could this be used against Facebook and Instagram?

Re:Old News

[Anonymous Coward]

No.

Re:Old News

[chrismcb]

No. You give permission to facebook and instagram (don't you remember this discussion about instagram not long ago, and the reason they've lost half their users)
BUT you could use this against facebook and instagram users who repost your photo outside of facebook and instagram

terms of service

[Dr. Tom]

This is all spelled out in the Twitter Terms of Service, right? Who owns the content? Is a picture any different from text? Not in the database, except for type. You can quote a Tweet, picture and all, but you don't own it.

Re:terms of service

[Dahamma]

It may be spelled out for *Twitter's* commercial use, but not for any company that wants to take your image and use it for themselves.

Re:terms of service

[TheRealMindChild]

I'm pretty sure my bitmap data contains more than the lower ASCII char set

Re:terms of service

[Dr. Tom]

When the higher courts get done with that, it's possible they'll decide other people can use your images, but unlikely.

Re:terms of service

[Dr. Tom]

My text might be unicode, Japanese for example.

Re:terms of service

[Dahamma]

Yeah, it would be about as likely as you being able to download a photo from the Washington Post and use it just because they had a license to it from the original photographer.

A contract is a contract. People can claim otherwise on slashdot, but in the vast majority of cases the courts interpret the law correctly and don't make arbitrary decisions against clearly written agreements.

Damages ruling isn't unusual

[HaqDiesel]

Damages for copyright infringement are always set on a per-work (rather than per-copy) basis, whatever the context. Judgments are huge in file sharing cases because they typically involve multiple tracks, each of which can fetch up to $750,000 if willful infringement is found.

Re:Damages ruling isn't unusual

[Anonymous Coward]

Note to self: Release each panel of my comic book as its own work.

Re:Damages ruling isn't unusual

[gnasher719]

Up to $150,000 per work in statutory damages, not $750,000. Not that it is much less ridiculous for some random file sharer. Above that, actual damages need to be proven (good luck with that).

Re:Damages ruling isn't unusual

[cpt kangarooski]

For statutory damages, this is correct. The number of infringements don't matter, only the number of works. This is set forth in the statute at 17 USC 504(c)(1).

Of course, that doesn't mean it always works out that way. I attended the Tenenbaum case, and when the attorneys were working out the jury instructions on damages with the judge, the plaintiff's attorney suggested an instruction that calculated damages per infringement, not per work. The defense counsel was pretty bad all through the trial, IMO, and failed to catch this, although a number of people in the gallery seemed to.

When the verdict was returned, it was an even multiple of the minimum damages, which makes me suspicious that the jury was trying to make a low award, but multiplied as instructed by the number of infringements that they thought had or may have occurred, or some such.

Note also that copyright plaintiffs can opt (or may be obligated to seek, depending on certain issues) the actual damages they suffered, plus the profits made by the infringer, rather than statutory damages determined by the court within a range provided in the statute.

And as HaqDiesel correctly notes, awards can skyrocket merely by the plaintiffs suing over additional works; defendants in these sorts of cases probably didn't stop at a mere handful. However, I would point out that the statute for calculating statutory damages says that works comprising a single compilation or derivative work are to be counted as just one work overall. So it's more likely different albums (or tracks from different albums), rather than merely different tracks, that is the issue. Still not much help.

Re:Damages ruling isn't unusual

[Anonymous Coward]

I am not a lawyer or judge but I think most sane judges are unlikely to regard the panels of a single comic book as separate works, especially if the panels are related to each other.

If you publish each individual panel separately then sure.

Re:Damages ruling isn't unusual

[Anonymous Coward]

Pretty sure that wouldn't work. The Comic book would be treated as a single work derived from the many images (similar to how an anthology would be treated).

Perpetual license

[bondsbw]

The judge also ruled against the photographer's request that he be compensated for each person that viewed the photos, ruling instead that damages would be granted once per infringing image only.

Once damages are granted for an image, would this ruling indicate that the defendant would be able to continue infringement without ever paying again?

Re:Perpetual license

[geekoid]

Once you are convicted of a crime, are you free to do that crime again without punishment?

Re:Perpetual license

[bondsbw]

Once you are convicted of a crime, are you free to do that crime again without punishment?

But unlike this ruling, if I commit a crime 20 times, I could be convicted for 20 crimes.

Re:Perpetual license

[Cyberax]

No, they would still need to acquire a license to this image. Damages only cover the past infringements.

Re:Perpetual license

[Anonymous Coward]

To be fair the defendant only used the image once. He doesn't commit a new crime everytime a new person sees it...

Re:Perpetual license

[Anonymous Coward]

Once you've killed someone you can't kill them again.

Re:Perpetual license

[Anonymous Coward]

Isn't he transmitting a new copy of the copyright protected work to each new viewer?
Isn't IP the same as non-IP? If I use your copyright protected work without permission that is theft right? Same as stealing a car?
The "damage" inflicted by the theft is directly proportional to how many people you stole for right? Steal 1000 cars, is F(1000) times worse than stealing 1 car yes?

Obviously; I know your answer is "correct", it just shits me up the wall that the copyright assholes get to write laws where the above is "true" but when they breach it they get the opposite in justice.

Re:Perpetual license

[Anonymous Coward]

Yes, but they could do it again and pay damages for one infringement in another six months, when it goes to court again. That's a minor cost of doing business.

Re:Perpetual license

[akpoff]

The plaintiff will almost certainly seek (and receive) an injunction against further infringement of the work by the defendant. I imagine it would also raise the plaintiff's next complaint against the same defendant to willful infringement with its painful $150,000 per-infringing-work penalty.

Being found guilty and paying a fine is not a blessing to do it again.

Re:Perpetual license

[akpoff]

Note: I think you have to register a work to seek $150k penalty.

Re:Perpetual license

[Cyberax]

The punitive damages are up to $50,000 per infringement. That's way more than the average price per photo. Besides, they'd have to remove it from web-accessible archives.

Go Judge

[YodasEvilTwin]

This seems like a fair and informed judgment to me. I don't think the photographer could harmed more by each view, and the distinction between re-use on Twitter and re-use elsewhere is a nuance I wouldn't expect most judges to understand. Let's hope he gets some filesharing cases and tells the RIAA they're owed $0.99 per song and no more.

Re:Go Judge

[Zordak]

The absolute minimum that can be awarded per infringed work is $200, and that's if you can convince the fact finder that you infringed without knowing. For a file sharer, that's a hard case to make. Damages can go up to $150,000 per infringed work if it was willful. Also remember that in the Jammie Thomas case, it's the jury that keeps awarding huge damages. The judge has actually tried to cut it down and been reversed on appeal, only to have the next jury award an even bigger number. I get the feeling that Jammie Thomas doesn't play well to a jury.

Re:Go Judge

[whoever57]

The absolute minimum that can be awarded per infringed work is $200, and that's if you can convince the fact finder that you infringed without knowing. For a file sharer, that's a hard case to make. Damages can go up to $150,000 per infringed work if it was willful

Only if the copyright was registered within some period of first publication. Was the copyright on these photos registered in the appropriate timeframe? If not, then all that can be awarded is actual damages, not statutory damages, so no "up to $150,000"

Re:Go Judge

[Zordak]

Specifically, within three months of publication or before the first act of infringement by the defendant. I don't know if Twitter photos were timely registered, but the songs file sharers are getting sued on certainly were.

Re:Go Judge

[AmiMoJo]

The distinction was between reproduction for non-commercial sharing with friends, which it is implied is allowed by the author when they post to a service like Twitter, and reproduction for commercial gain.

Once per infringing image

[girlinatrainingbra]

It's a bit ambiguous: does "once per infringing image" mean -- "once per image infringed", so that Agence-Presse-Francais and the Washington Post would only pay half of the cost each per each image infringed
-- "once per infringing use [posting or publishing, not per view] of image", so that whatever the "use cost" of the image is, the Post would have to pay full use cost, and AFP would also have to pay full use cost.

.
I can actually see the point and usefulness of "per view" of image, because I would guess that the contractual or negotiated "use cost" of the image would be different for different uses:

-- smaller payment for a small magazine with low distribution and readers
-- larger payment for a large magazine with large distribution and lots of readers
-- even larger payment for exclusive publication rights (which helps magazines sell even more copies, and also helps tabloid newspapers with paparazzi photos)
-- some other negotiated fee for web usage, with a sliding scale for number of impressions / views / click throughs.

So it would make sense that a web site that copied it and had a lot of page views of the image ought to pay more for infringing it than a web site that didn't. Unless of course, you bring in "statutory damages" which will not require bringing in any proof of dollar loss, merely prroof of copyright infringement.
Etrange. Tres etrange.

Re:Once per infringing image

[tepples]

Statutory damages under U.S. law are "once per image infringed".

Bad Judge, No Bribe For You

[pseudorand]

Okay, who's the wise guy who let common sense into the court room. That judge should be severely reprimanded for ignoring the natural order of the Military-Industrial Complex.

You're about 60 years too late

[Safety Cap]

Long ago, if you didn't post a copyright notice on your work, it would lose copyright protection. That was changed by our brave congresscritters (may Sonny Bono rot in hell!)

Now copyright applied the moment the work is fixed.

Unless someone posts it Public Domain or one of the CC flavors, it is Copyrighted, period.*

*US only. YMMV, especially if you're a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

Re:You're about 60 years too late

[UltraZelda64]

Still, the point is, whether required or not, corporations generally place a copyright notice on their site anyway. Correct?

Re:You're about 60 years too late

[Anonymous Coward]

especially if you're a foreigner, living in some country where the government isn't (quite as) beholden to the copyright lobby

Re:You're about 60 years too late

[Anonymous Coward]

*US only. YMMV, especially if you're a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

Actually...the Berne Convention is an international agreement that was lead to the US changing its laws, rather than a decision by any lawmakers in the US.

Re:You're about 60 years too late

[steelfood]

a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

That's what happens when you don't have strong copyright controls. Especially the part about eating smelly food. Only with strong copyright controls will your food be completely bland and odorless.

Re:You're about 60 years too late

[akpoff]

The Berne Convention was written and first formally accepted in 1886...but not by the United States. The US steadfastly refused to adopt the convention because it would have required large changes to our copyright laws and acceptance of doctrines like author's moral rights for which we don't have analogous protections.

The US did eventually adopt the Berne Convention and did so in the only way permitted by our Constitution: Congress passed the Berne Convention Implementation Act of 1988. The US Senate then formally ratified the Berne Convention making the US a signatory to the treaty.

So yes, (some) US lawmakers did make a decision that resulted in changing our copyright laws.

The OP, however, is not correct in his oblique suggestion that Sonny Bono is in part or whole to blame. (Though I have no doubt Sonny Bono supported it.) Sonny Bono's name is sometimes attached to the Copyright Extension Act of 1998 but he did not vote for it. (Though he had sponsored similar legislation earlier.) He died nine months before it's passage. His wife Mary, who was elected to his Congressional seat after his death, was instrumental in getting it passed in his name.

Berne Convention
Copyright Extension Act

Re:You're about 60 years too late

[AvitarX]

The Berne convention requires the registration be optional, but does it require that a (c) be such ?

Re:You're about 60 years too late

[Anonymous Coward]

If a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's defense based on innocent infringement. Innocent infringement occurs when the infringer did not realize that the work was protected.

That's why you put the notice, so someone can't say they infringed "by accident"

Re: You're about 60 years too late

[Anonymous Coward]

Um, no?
CC is still copyright, just like GPL. It's simply more permissive that most are accustomed to. Public Domain, is free of copyright.

Re:You're about 60 years too late

[AmiMoJo]

Actually the initial resistance to Berne was mostly because the US infringed copyright on a massive commercial scale. Books published in Europe were being reproduced in the US royalty free and sold for a profit, and then later on the same thing happened with sound recordings and movies.

The US changed its copyright laws the moment it became economically beneficial to do so.

Re:You're about 60 years too late

[Anonymous Coward]

Great, then Google can pay me for every ad impression shown along with any of my archived Usenet posts, including anything retroactively owned by DejaNews.

After all, if Twitter images are copyrighted, so are the Usenet posts.

Alternative, Google can dump every archived post of mine that they have, including any reply post by anyone else that quotes my post in whole or in part.

And same goes for anyone else whose post is archived, right?

After all, a Usenet post predated Twitter tweets.

Missing the point.

[Anonymous Coward]

Idiots here never seem to understand how the Law works. There is NEVER a possibility of a company getting away with stealing another's IP and using it commercially. In the case of data posted freely on the Internet, further use MUST have the character of distributing the data in likewise fashion. 'Likewise', in this case, meant the TOS and purpose of the 'Twitter' service.

However, news agencies have an army of lawyers engaged explicitly to explain how to SAFELY break the law. Safe may be judged in terms of likelihood of legal action by the offended party, or the cost of losing against such action in court. News agencies have no principles.

Stealing a photo from a person who makes his living selling such photos to news agencies would seem a risky bet, but if the court penalty is only several times what the paper might have had to pay in the first place, it is a sound bet for an organisation always in need of 'exclusives'.

Why didn't the owners of AFP and The Post just pay him off? Only works if the photographer wants to play ball, and accept a pittance. If, on the other hand, the photographer wants to calculate the cost of defending an action in court, and wants the agencies to pay HIM that money instead, the agencies will usually choose to 'stand their ground', no matter how stupid that seems to us.

The agencies work to the knowledge that powerful targets can sue the agencies (and often win), even when the agency is in the right, but ordinary people rarely have the means to sue, even when the agency is deplorably in the wrong.

Re:Missing the point.

[qubezz]

>> Why didn't the owners of AFP and The Post just pay him off?

AFP didn't just not pay him off, after the photographer's agent sent take-down notices to AFP, AFP sued him. Then they sent a message over the wire service to kill all of Morel's own images, but not the identical images that had been sent out initially under the false credit.

AFP deserves even more of a serious courtroom smackdown equivalent

Re:Missing the point.

[sconeu]

Aren't AFP the guys who want Google to pay them for just LINKING to their content?

Re:Missing the point.

[Kalriath]

Yes.

cannot ?!

[Barryke]

Can not be used commercially? Of course they can! They just need ask the owner first.. isn't this common sense in the US? In the Netherlands it is. News reporters contact people and ask for their consent before reusing the image they made and posted online.
.

Re:cannot ?!

[Anonymous Coward]

In the U.S. that would not be deemed commercial use, but editorial use.

Re:cannot ?!

[steelfood]

Common sense does not dictate corporations' actions here. It's all about who you can intimidate and what you can get away with.

Re:cannot ?!

[Jason Levine]

Sadly, too many people think "put on the Internet" means "Public Domain". If you find an image on the Internet and it doesn't specifically say that it is public domain (or under a copyright license such as Creative Commons that allows you to reuse the image for free), assume that it is copyrighted and that you can't use it without permission. Then, contact the owner of the image and ask if you can use it for your intended purpose. The copyright owner might just let you (and if he/she doesn't, then you've saved yourself legal threats).

Wait, what?

[bill_mcgonigle]

How is 'commerical use' the criteria here? The delineation should be use within the Twitter system (nobody is copying the image, just perpetuating links to it, and within the ToS) or outside the Twitter system, where the image needs to be copied so copyright applies.

Commerical use might help frame damages sought, but copyright (however antiquated and silly in today's world it might be) isn't about intended use.

"can it set a precedent"?

[DaveV1.0]

No, it can't because it relies on other precedents and concepts. Specifically, the idea that transient cached data doesn't require a license or infringe. The judge ruled the only infringing copie were the ones displayed on the websites and not the ones created by web browsers caching the web pages. So called "file sharing" deliberately creates multiple infringing copies of a work. These are not transient cached copies created incidentally, but intentionally created "permanent" copies.

Re:"can it set a precedent"?

[Anonymous Coward]

So if they reproduced this story in a paper-article with a picture, that's a permanent copy they would have to pay for, but an internet-hosted story isn't because it is somehow a "lesser" copy that is theoretically more transient in nature?

Nonsense?

[angel'o'sphere]

can it set a precedent against massive judgments against peer-to-peer file-sharers?
What has the copyright infringement of a photo done by a press media to do with the copyright infringement of a lay man uploading movies to a file sharing side?
If you copy something that is not your own work you are reliable for it. Thats it.
What is true for big media if you upload something to youtube is also true for big media if they "steal" your twitter photo ... how retarded is the poster to ask this question?

Re:Nonsense?

[Zordak]

Also, the judge applied the same rule of statutory damages (per infringed work) that is being used in the file sharing cases.

Re:Yay double standards - really?

[icebike]

Am I wrong in assuming that probably every corporation's website has a copyright notice in small print at the bottom of all of the pages, complete with an "all rights reserved" notice? Meanwhile social, user content-based sites are governed typically by a Terms of Service and Privacy Policy page (which can, of course change without notice)? So what's the confusion?

I'm not sure this is germane.

One does not actually tweet a picture, you tweet a link to a picture, and anyone seeing that tweet hits that link (often a cached copy on a third party image service), bypassing any pages or notices. So anyone mining a picture out of a tweet would more likely pull up an image stored on some service which usually contain no copyright information.

More interesting it the single payment for each infringement. The judge has a set himself squarely against big media here.

Injunction

[Turminder Xuss]

Damages cover past infringement, an injunction can issue restraining future infringement. Breach of the injunction is a contempt which can result in imprisonment or fines which are not discharged by bankruptcy.

.99% 1 share ???

[Anonymous Coward]

What if people in countries with these ridiculously huge($150,000) fines for sharing copyright material were to say share thru a torrent client and set the reshare reatio to .99%.... Would that actually not be considered sharing the file then, since nobody actually got a true and full copy from the sharer??? How about if they set their torrent client to never allow anyone to be able to download a full copy off their computer, but would allow many to all download at up to 99% of the file?

Talk about sticking it to the top 1% of income earners who prey on the poor to 'steal' $150,000 from someone for punishment of basically stealing a $.99 copy!!!

Re:.99% 1 share ???

[AvitarX]

Cute, but no. Substantial (even insubstantial) parts count. See sampling in music.

This again

[dbIII]

The USA goes above and beyond anything that the Berne Convention politely asks for. The USA could have refused, just like with the Hague war crimes convention and a pile of other treaties, and not suffered for it. There's no point blaming some World Government tinfoil hat conspiracy for the laws that the Disney Corporation and a pile of others lobbied for.

IANAL, but...

[xenobyte]

Isn't this relatively simple?

If the creator of something like a photograph publishes this, for example by sharing it on twitter, then:

- It gets copyrighted (Berne)
- People can see it
- People can copy it (they do by just looking at it, both electronically and mentally)
- People can re-share it (twitter rules)
- People cannot sell it or make money from it due to it being copyrighted.

This also reminds me of the famous Scientology verdict where their 'secret teachings' turned out not to be copyrighted as they were not published in any fashion. This is why there's a bunch of books these days detailing exactly what's the inner secrets of Scientology are (meet Xenu!), and they can do nothing about it (except harassment of course). Oh, and not to forget: Operation Clambake.

Re:.99% 1 share ???

[xenobyte]

Cute, but no. Substantial (even insubstantial) parts count. See sampling in music.

Very fuzzy.

There used to be an 8-bar or 8-second rule (exception), but that seems unreliable these days as well.

Take ABBA for instance. They have successfully prevented anyone from using any form of samples from their recordings, regardless of length. The only legal sample out there is the one from "Gimme, Gimme, Gimme" Madonna used for "Hung Up". Basically Madonna made the song and recorded a demo without clearing the sample, then sent it to ABBA asking how much it would cost to clear it. She got it at the bargain price of double-digit millions ($) upfront plus a double-digit percentage of all sales, easily the most expensive sample ever. Despite this horrendous price, Madonna still made a fortune on the song.

no it cannot..

[SuperDre]

No it cannot set a precedence for file-sharing, because other judges already set a precedence for that, so it's rather weird why this judge ruled like he did.. Looking at this, it makes clear that precedence doesn't have any real value...

Re:no it cannot..

[bws111]

What are you (and the summary) talking about? The judge ruled exactly the same way as the judges in the file sharing cases.

Re:.99% 1 share ???

[Anonymous Coward]

You can't really be that stupid, can you?

There is a word for a bunch of people each performing a small (maybe even legal) act in order to perpetrate a crime: conspiracy. And far from your stupid idea that that implies nobody can be charged with the crime, they are all charged with the full crime, no matter how small their part. And as an extra added bonus, they have committed an additional crime of conspiracy, which they will also be charged with.

?? Confused ??

[camperdave]

I'm confused. I thought Twitter had a 140 character limit. How much of an image can you stuff into 140 characters? Maybe a little ASCII art might be possible, but I wouldn't think anything like that could be copyrighted.

Editorial use?

[Barryke]

That raises questions.

What does that mean? They don't make any money on it? Or whats the difference?
Or is this some freedom of speech and therefor i'm allowed to distribute copyrighted material under that umbrella if i call myself an editor?