No tolls for trolls
The thing about copyright law we all understand is that no one understands it.
We have all written about the old Righthaven copyright trolling scam, as everyone did. As you will recall, the fatal flaw in the Righthaven scheme, though there were many, was that Righthaven owned no right in the copyright besides the right to sue for its infringement, and under copyright law, that’s no right at all.
Now Pamela Chestek, who writes frequently on agency issue and has done so very well at it, posts about another failed, if less notorious and sleazy, attempt to square that circle. This case, just decided in the Second Circuit, involves trolling campaigns aimed at what can fairly be described, from a copyright point of view, as a relatively sleazy category of defendants — textbook publishers:
I’ve written in the past (recursive link) about the phenomenon of copyright infringement lawsuits brought by photographers or their agents against textbook publishers. The textbook publishers allegedly exceed the license they had for the use of stock photos, either by exceeding the number of print copies authorized or using the works outside of the territorial scope of the license. It has been a hard-fought battle, with the publishers expending a great deal of effort to avoid getting to the substance of the suits by using procedural challenges to registration and, for discussion here, standing.
I thought it was black letter law that only the owner of the rights infringed can bring a suit for infringement. This is a shoe that doesn’t fit well for agency-as-plaintiff, because the agency never, in reality, acts as a copyright owner. That is, it doesn’t use the works itself but is a licensing agent for the rights. The agencies have tried to find ways to paper up their relationship with the photographers to allow the agency to bring a claim, but my anecdotal recall is that it is generally unsuccessful. The courts examine the documentation and, a la Righthaven, find that the only right that the agent truly had was the right to sue.
That was the case in the district court opinion in John Wiley & Sons, Inc. v. DRK Photo. The district court held that none of the various agreements vested the photo agency, DRK Photo, with enough copyright interest to have standing to bring the copyright infringement lawsuit against John Wiley & Sons, the publisher.
The thrust of the appeal wasn’t the reading of the documents though, it was to the very premise that the bare right to sue cannot be assigned. That is one of those things I thought was well-settled, and then the day comes when someone challenges it.
The Second Circuit gives a thorough exegisis, re-examining the cases underlying the legal premise and the statute. Nevertheless, it reaches the same conclusion, that one cannot assign the bare right to sue on copyright, efficiency notwithstanding[.]
You really should take a look at all the work Pamela has done on this topic, which makes you realize that everything you know about copyright is wrong. The titles of just some the posts themselves tell you the story:
- An Exclusive License or Exclusive Agent?
- You Will Never Get a Copyright Registration Right
- If It’s Retroactive It’s Not a “License”
- The Copyright License As a Property Right
- Righthaven, the Gift that Keeps on Giving
- Four Agreements, No Standing
- How to Do a Copyright Assignment So You Can Sue
What a train wreck. Which makes the punitive regime of statutory damages for essentially trivial copyright infringement even stupider, no?
Yes. Now juxtapose it with that proposed “small claims” copyright enforcement business, in case one train wreck isn’t good enough for you.
I’m no blaming anyone — well, hardly anyone. We’re living in a copyright world none of us ever made.