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Comment by oliwarner | Hacker News Reader

Public domain is special. You free yourself of all ownership which means that somebody else can pick it up and relicense their distribution of it, including saying you cannot do things with it. I emphasise "saying" because that's pretty much all you can do unless they know they're the only entity distributing it.

The problem here was trying to enforce on something that was obviously non-exclusive. This mistake happens with all sorts of content available through multiple channels. Getty should have marked it as such on ingestion.

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Putting copyright matters aside, there is an issue of misrepresentation.

A case that would be interesting would be one where Getty had represented that they were acting on behalf of an exclusive copyright holder, and where a third party had acquiesced to those demands, only to subsequently learn that Getty was not the rights holder.

This is about basic contract issues. Getty falsely represented themselves to be X, with the use of aggressive language, leading to a contract being formed based on invalid premises. If it is a pattern of practice, it starts to look like a RICO matter.

I think cases like this is why public domain does not exist in Sweden, nor can you disown Copyright, only “commercial Copyright”. What always remains is “moral Copyright”, which can’t be used for much except that it’s some sort of attribution to the original author which always remains.

Moral rights are not transferable in the USA either, but they are much more limited in scope. Pictures are included in this protection.

I disagree on the fundamental point that this was misrepresentation. They had every right to enforce a claim, they were just stupid to assume others wouldn't have their own claims.

You're breathing air. I own all the air. Pay me.

Now, if I claimed this seriously, most people would laugh me out of the room. But some might not and actually pay up. Especially if I threatened to sue them if they didn't pay up and the "I" was a big, well-known company.

What Getty does is not just muddy grey misrepresentation, it's outright fraudulent.

- They say it's copyright infringement in their letter. It is not.

- They say you need a valid license to use the image. You do not.

- They demand a license fee. Not a "you used our service to find and download this public domain work" fee. A license fee.

- There is no indication whatsoever Getty/Alamy had any role in how the photograph got onto the website of Highsmith's foundation. Given it's her own photograph, it's unlikely she used Getty at all. But they do not claim a fee for using their services anyway, they claim a license fee based on copyright law, which they cannot.

Highsmith gave up her copyright and cannot demand attribution or damages under the copyright law, so I agree with the court there. What she instead should have done is file a criminal complaint and a civil suit regarding the attempt to defraud her.

I take an amazing photo and give it to you with all rights to redistribute and sublicense it as you wish. You choose to redistribute it under a restrictive license for cash. As far as you know you're the only person selling this photo.

You see my photo being used in a national advert. The advertiser is not your customer. Again, you think you're the only person with the right to redistribute this photo, and infer that your rights to a licensing fee is being infringed.

As I say, they were stupid to treat this as if they had an exclusive license, but they had every right to redistribute under their license and ask for a license fee. Just as the recipient of that demand had the right to tell them go away.

>I take an amazing photo and give it to you with all rights to redistribute and sublicense it as you wish.

This is not what happened. They never were granted the rights to sublicense it. It is in the public domain. They can use it, redistribute it, or charge you if you somehow use their services to do things with it, or even create derivative works which they then own. But they cannot relicense it or claim they own it, or represent the owner.

Now, the only thing I would let them bring forward as their argument is if they themselves were defrauded by somebody claiming ownership of the photograph. I see no indication that this is what had happened, tho.

> This is not what happened. They never were granted the rights to sublicense it.

This is not what happened. They were granted the rights to sublicense it. Placing a piece of work in public domain automatically grants others to do whatever they want with it including sublicensing it.

They were not granted the exclusive right to sub licence it.

Happy now?

The image was put in public domain. No further exclusive rights are required to sublicense it. You are allowed to pick work from public domain and sublicense it if you want to.

Since they were not given exclusive rights, how could they know that whoever used the picture was infringing their rights and had to pay them a license fee? They didn't.

The whole example was about having exclusive rights so anyone that had the image must be infringing. That presumption is gone once the image is in the public domain.

The problem isn't that Getty is trying to license an image, the problem is Getty is contacting people already using a public domain image and trying to get them to pay them money to use it.

What "license" was sub-licensed?

You can't have a sublicense for something in which no licensing rights inhere to begin with. I think you understand this very well and are choosing to pretend otherwise.

That is not how grammar works... . The point is about exclusive sublicensing. Of course, they are allowed to sublicense it, nobody ever questioned that, but that has nothing to do with the discussion.

IANAL, so honest question - is that actually true? Is it legal to sell a license to a public domain work? Is it OK to fail to tell the person you're signing the contract with that they don't need it?

That's sort of like me selling you a driving license - when you already have one, and I don't actually have any authority to grant or rescind that permission either way. I mean; sure... you will have the permission after the sale, but it's at least a pretty dubious construction.

It's extortion.

It's fraud.

> it starts to look like a RICO matter.

I don't think false representation counts as a racketeering activity. Also, which defendant would the action be brought against? The CEO?

One of the worst things about the modern world: when you automate a crime and do it ten thousand times it becomes likely the justice system will simply ignore you.

See : SPAM

And don't forget there exist people that will literally try to defend this behaviour by claiming it is "too hard" (doesn't scale, or whatever) to do it right.

Like Facebook moderation, or Youtube complaints.

They charged Huawei with RICO.

> This mistake happens with all sorts of content available from multiple areas.

Sure, mistakes happen. But I think someone in the business of licensing should be held to a higher standard and that there should be a punishment for false demands/false presentation of copyright.

The fact that they can threaten someone for thousands of dollars and then just say "honest mistake. You get nothing for your troubles" might be legal, but I am not convinced it should be.

It was not a false representation of copyright. PD allows this. It was just stupid to assume that nobody else would have a legitimate copy.

The tactics used are questionable, but asking for $120 is at the softer end of the spectrum when it comes to demands.

They didn't just ask. They threatened the author of the photograph with court action for "unlicensed distribution".

No. I know we're supposed to assume that all HN commenters have read the source material, but did you?

The letter stakes their claim and then immediately —before any numbers mentioned or "threats" made— say "If we are wrong and you do have a valid license"... In fact, they make no threats of lawsuit. All inference there is from the LA Times.

IP licensing is hard. Enforcement is harder. This example is a very soft approach.

This is not preschool. You can't just excuse all your actions with a "if I'm wrong". Everyone has a "valid license" to a public domain image.

There is no such thing as a license to public domain material. That's what public domain means -- no license required.

In your other comment (too deeply nested for me to reply to) you mitigate their actions with the quotation:

> If we are wrong and you do have a valid license

The crux of the matter is that this sentence does not make it clear that a licence may not be needed at all. In fact it seems to re-enforce the idea that you definitely do need a licence.

The appropriate sentence that they could have used instead is more like "if we are wrong and do not actually own the copyright", which is materially different from what they said. Of course, aside from that being a totally different meaning and implication, as others have said it is 100% Getty's responsibility to figure out what they do not own the copyright to.

That's why people who specifically do not want their art to be exploited by big corporations like Getty Images should never use the "public domain" license period. It's ripe for abuse. Consult a lawyer and create your own special license, or use creative commons.

> The problem here was trying to enforce on something that was obviously non-exclusive.

No problem here, only Getty Images acting in bad faith. They know very well how the photographies are licensed and are abusing their position to "threaten" people and businesses who don't know better. It's morally reprehensible as a business model, legal, but scummy.

Is it legal to threaten you based on a false assumption? To me it looks like extortion. They would deserve to pay the whole 1B dollars.

There no such thing thing in law as a "public domain license". That's part of why CC0 was created, because public domain is an ill-defined concept, not a license.

How about we just forbid copyright claims over public domain material, instead of shifting the burden from the large licensing corporation to the individual creators and consumers? In other words, change the law to make Getty's behavior illegal.

My reading of this article is getty was claiming they own the rights to the photos, and requested payment from the photographer. Because they didn't have a record of her paying them... Despite the fact she didn't get it from them.

Yeah, that's my reading too. Getty treated this as if it were exclusive and that they were working as sole agent for the owner. They do this for lots of the things they distribute.

But PD is incidental here. Getty could have legitimately had a exclusive license and still incorrectly gone after its creator.

Getty treated itself as the state and the work as a government royalty subject. (government royalty subject is what your work becomes if you do a work-for-hire for a continental European government, i.e. the government becoming the copyright owner)

In the USA all works of the government are considered public domain. The idea of a public copyright is a legal contradiction in terms. So it's perfectly legal to take PDFs of official government publications and republish them if you think there's a market for it.

Minor nitpick:

All works of the _federal_ government are public domain. The works of other governments may, or may not be.

> In the USA all works of the government are considered public domain.

Only the federal government. State governments can and do (automatically, just like other creators) own copyright to their works under US law.

> The idea of a public copyright is a legal contradiction in terms.

No, its not.

> So it's perfectly legal to take PDFs of official government publications and republish them if you think there's a market for it.

It often is not, even with federal government publications, because:

(1) Official government publications may include non-federal works that are protected by copyright with a non-sub-licensed permission from the copyright owner (including works created by government contractors.)

(2) Even though copyright may not apply, rules regarding use of government-owned trademarks, government agency logos, etc. may restrict your commercial use and marketing of government works.

(3) If your use isn't strictly limited to use within the United States, it may still fall afoul of federal government copyrights, because the US federal government can and does assert international copyrights to its works, its works are only copyright-free within the US.

https://www.usa.gov/government-works

It is the norm in continental Europe. All government works being public domain is exceptional, only being valid in USA, PRC and Israel.

Um, no. You can't take a public domain image and claim you own it and are thus due licensing fees, that's both immoral and .. save this ruling which I'd hope would be over turned, tout de suite .. should be illegal.

This is a serious problem. If companies can take public domain images and claim them as their own that's going to seriously curtail the public domain. What benefit is there to the pubic in that, the balance of copyright would be entirely broken by such a ruling of it held.

Now claiming $1B? Not sure. But the sum would need to be a significant portion of Getty's global revenue to make sure they didn't claim they had ownership of other public domain works.

>Um, no. You can't take a public domain image and claim you own it and are thus due licensing fees

Yes, you can.

You would be wrong. And you would lose in court when attempting to extract those license fees. But the act of making such a claim is not itself something that can be sued over, because no one has rights to the photo once it has been released to the public domain, and thus no one has standing to sue.

everyone has the right to use the photo. The standing would be harassment and fraud and SLAPPing, for threatening to sue on false pretenses.

> somebody else can pick it up and relicense their distribution of it, including saying you cannot do things with it.

How do you differentiate the Getty Image distribution of it vs. the original public domain distribution?

The side with the most lawyers chooses. The original public domain version doesn't have any lawyers.

When a work's copyright expires, it is commonly said to be in the public domain. Does the same apply to these?

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