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Comment by cturner | Hacker News Reader

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.

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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.

> 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.

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.

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