While $1B seems excessive, and more of a number to make a point, it does seem outrageously egregious to send her a bill for her own photo on her own website that she donated for public use.
It would be like coming home to find a naked vagrant sitting on your couch, demanding that you pay him rent.
It's likely that Getty have also fraudulently charged many other customers licenses for these photos. It's not inconceivable that each of them could individually sue Getty for their own damages. This looks like it could become a very expensive case of sloppy (or deliberately negligent) copyright overreach.
That's the problem, isn't it? Many crimes, for the law to apply, have to be committed knowingly. But if your internal controls are weak, and if cross-checking when billing is discouraged you just overbill on the chance that the customer will pay up. And you don't commit crime, only if you check and bill anyway, then it's crime!
If we are arguing language, the correct words should be "criminogenic environment".
> Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway.
No, "negligence", in law, means you failed to act according to the duty of care you owed, which can include knowing about a risk but failing to act reasonably to mitigate it as much as it can include not knowing about a risk that one reasonably should have known about.
Negligence and recklessness are not mutually exclusive
Negligence is a stand-alone tort/cause of action in civil litigation, as well as a qualifier for intention-based infractions in criminal law. The two meanings to the term are connected, but do not overlap 1:1.
The poster above you is correct as to the test for negligence in civil causes of action.
The likely cause of this mix-up is that false-licensing touches upon the law of misrepresentation, which contains as a subset, rules for both fraudulent misrepresentation as well as negligent misrepresentation.
In USA law isn't wilful blindness an example of what might be considered deliberate negligence in other jurisdictions?
Your link discusses the ill-defined nature of the middle ground, indeed if someone is apathetic as to whether the actions they take are negligent, those actions being deliberate, then it appears to fall in the even less well defined middle ground between recklessness and negligence. The link summarises with 3 conditions for recklessness, the first two being:
>As to recklessness, the better rule to apply is that requiring a strict test, i.e., the defendant must (a) actually know the course of conduct he is about to embark upon involves the probability of death or great harm to another, and (b) choose to risk occurrence of harm. (duke.edu link, ibid ) //
It primarily discusses criminal recklessness and only briefly touches on torts, as copyright infringement is, so I'm not really sure how relevant it is.
Perhaps you could comment on this imagined scenario:
A company deliberately includes CC-NC works (for example) in their morgue files and then neglects to check whether those works are then sold or included in the works that they chase up as infringements. Indeed they consider the problem but choose not to investigate whether they might be inadvertently charging for works that they have no rights to charge for, isn't there deliberate negligence there? They chose to avoid doing what the notional reasonable-man would consider to be necessary to avoid copyright infringement? They don't know they're infringing and so their actions aren't reckless??
TL;DR I propose that if you avoid acquiring the knowledge that would make you aware how reckless something were, you continue to be negligent just deliberately so.
(Didn't read your link entirely, sorry).
>"I'm not sure which law school taught you that" (morninj) //
Isn't the point of the link that judges don't even the line between negligence and recklessness correctly and that state laws muddy the line considerably; that "criminal negligence" should be an oxymoron under what the author considers to be proper interpretation of the USC. However, and correct me if I'm wrong, "criminal negligence" is a charge that is currently brought quite properly in various States of the USA.
IANAL just butting in with my tupenneth in the hope of getting educated.
The basic definition [1] is not about failing to know the risk but rather failing to exercise care. Can one not deliberately fail to exercise that care?
I am not versed in law, so please accept this as a request for clarification, not a debate.
"Gross negligence" means you really really should have known of the risk. But it's still a contradiction to say that someone was deliberately grossly negligent.
Not really, I don't think. That's basically the idea behind deniability - you kinda sort know about something, but you kinda sort make sure you never actually know about it.
Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".
In Wilson v Brett Baron Rolfe (later Lord Cranworth) said he "could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative epithet."
eh, if they're listed as public domain on the library of congress and Getty got their images there, wouldn't be the library of congress the one committing copyright infringement?
Getty is using the license they got the images with, after all.
many works are distributed under dual licensing and how you obtained the files define it's license.
now what I don't know is the legality of attaching a license to a redistribution of a public domain work - technically one can claim recompression is transformative and that you hold a license to the altered work, in which case the origin of the file matters in defining if third parties are infringing (and this is why gpl works better in these cases, you don't get to change the license downstream)
You can resell public domain works as much as you want, but you can't go around claiming an exclusive right to the image and trying to force other people to pay you to license a right that you don't possess.
> technically one can claim recompression is transformative
No, because transformative applies to uses of the work, not the work itself. A recompressed image has the same uses as the original image so there's absolutely no scope for considering it to be transformative.
As far as attaching licenses to public domain works goes, you can do what you like. There are no restrictions. However, you can't claim to have an exclusive license, and you certainly can't claim to own any copyright in the work, because none exists.
Others have already answered the question, but let me add to their answers that "I Am Not Your Lawyer" is usually rendered as IANYL, not IAMNYL, which is why you could not find it.
More common is IANAL, which means "I Am Not A Lawyer".
That's my take as well. It's bad enough companies make legitimate but lazy mistakes like filing DMCA strikes against works with the same name as something they own. But it seems like the absolute minimum you ought to do is make sure beyond a doubt you own what you claim to own.
It's only about twice the statutory damages. And it looks like the article is only using $25,000 per work for that number. For willful infringement, statutory damages can go up to $150,000, which would be about $2.8 billion for 18,755 photos here. I'd say she's being fairly generous by offering to settle for a mere $1 billion!
I would have sued them for the full amount the law permitted for each image if the company goes under as a result that would act as example/discouragement for any other company that would think about doing that in the future.
People get fined ridiculous amounts all the time as discouragement so why shouldn't companies have the same happen to them their technically a person in the US no?
If the company goes under because it can't make the full payment, I'd accept a transfer of the remaining copyrights and promptly place everything in the public domain.
While $1B seems excessive, and more of a number to make a point...
Broadly speaking, the "content industry" has habitually been dragging individual file-sharers into court and claiming life-altering, bankruptcy-forcing judgements for more trivial violations, in order to terrify the general public into compliance.
If the threat of a $1B judgement is enough to threaten Getty with bankruptcy, if it's enough to scare other rights-claimers into making their businesses more businesslike, that's actually very comparable.
First rule of any price negotiation, always start WAY too high :) On a serious note, Getty has been doing this underhanded shit for ages, and the amount they pay photographers is even worse. From what I've read, they don't even report to photographers, who downloaded their works. So there really is no accountability, on how many you REALLY sold. It's shady nonsense.
Yes, $1B sounds excessive... but that is also a valid legal strategy -- making your complaint cover everything under the sun, for as much damages as possible, expecting their lawyers to fight each point and amount, and hopefully the end result is something you actually find acceptable.
It might be excessive, but we are talking about 18,755 images, and I bet Getty has won cases over single images in the $55,000 range. Its only fair they pay the same that they won from others.
Your analogy is pretty precise up to the "naked" part. I've heard pretty bad things about Getty Images from their customers (much more expensive than competitors, much worse customer service.) Naked I've never heard...
To distinguish from a nudist's casual disregard for garments and a hermit's inability to acquire substantial coverings, perhaps it would be better if Getty were not entirely naked, but instead had its underpants dropped to its ankles.
That says, "I own clothes, and usually wear them in a socially acceptable way, but I made an exception just for you and your formerly unstinky couch cushions."
I very much hope that a $1B judgment is enough to put Getty Images out of business based on their terrible practices but sadly I would imagine it would take much more than that.
It would be like coming home to find a naked vagrant sitting on your couch, demanding that you pay him rent.