from the damn-copyright-trolls dept

Copyright regulation is meant to encourage creativity. Too usually, it’s used to extract payouts from others.

Higbee & Associates, a regulation agency known for sending copyright demand letters to web site homeowners, focused Could First Motion Expertise, accusing it of infringing {a photograph} owned by Agence France-Presse (AFP). The declare was baseless. Could First didn’t publish the picture. It didn’t even personal the web site the place the picture appeared.

Could First is a nonprofit membership group that gives webhosting and technical infrastructure to social justice teams world wide. The allegedly infringing picture was posted years in the past by one among Could First’s members, a human rights group primarily based in Mexico. When Could First realized concerning the copyright criticism, it ensured that the group eliminated the picture.

That ought to have been the tip of it. As an alternative, the agency demanded fee.

So EFF stepped in as Could First’s counsel and explained why AFP and Higbee had no valid claim. After receiving our response, Higbee backed down.

This consequence is a reminder that targets of copyright calls for usually have robust defenses—particularly when another person posted the fabric.

Internet hosting Content material Isn’t the Similar as Publishing It

Copyright regulation treats those that create or management content material in a different way from those that merely present the instruments or infrastructure for others to speak.

On this case, Could First supplied internet hosting providers however didn’t publish the picture. Courts have lengthy acknowledged that service suppliers aren’t direct infringers once they merely retailer materials on the path of customers. In these instances, service suppliers lack “volitional conduct”—the intentional act of copying or distributing the work.

Copyright regulation additionally acknowledges that intermediaries can’t realistically police every little thing customers add. That’s why authorized protections just like the Digital Millennium Copyright Act safe harbors exist. Even exterior these secure harbors, courts nonetheless defend service suppliers from legal responsibility once they promptly reply to notices.

Could First did precisely what the regulation expects: it notified its member, and the picture got here down.

A Declare That Ought to Have Been Withdrawn A lot Sooner

The troubling a part of this story isn’t simply {that a} demand was despatched. It’s that Higbee and AFP continued to demand cash and threaten litigation after Could First defined that it was merely a internet hosting supplier and had the picture eliminated.

In different phrases, the declare was constructed on shaky authorized floor from the beginning. As soon as Could First defined its function, Higbee ought to have withdrawn its demand. People and small nonprofits shouldn’t want legal professionals simply to cease aggressive copyright shakedowns.

Statutory Damages Gas Copyright Abuse

This isn’t an remoted case—it’s a predictable results of copyright regulation’s statutory damages regime.

Statutory damages can attain $150,000 per work, no matter precise hurt. That giant leverage incentivizes companies like Higbee to ship mass demand letters searching for fast settlements. Even meritless claims can generate income when recipients are too afraid, confused, or resource-constrained to battle again.

This hits group organizations, unbiased publishers, and small service suppliers that don’t have in-house authorized groups particularly laborious. Confronted with the specter of ruinous statutory damages, many simply pay what’s demanded.

That’s not how copyright regulation ought to work.

Know Your Rights

When you obtain a copyright demand primarily based on materials another person posted, don’t assume you’re liable.

You’ll have defenses primarily based on:

  • Your function as a internet hosting or service supplier
  • Lack of volitional conduct
  • Immediate elimination of the fabric after discover
  • The statute of limitations
  • The copyright proprietor’s failure to well timed register the work
  • The absence of precise damages

Each scenario is completely different, however the important thing level is that this: a requirement letter is just not the identical as a legitimate authorized declare.

Standing As much as Copyright Trolls

Could First stood its floor, and Higbee deserted its demand after we defined the regulation.

However the larger downside stays. Copyright’s statutory damages framework allows aggressive enforcement ways that targets the unsuitable events, and chills lawful on-line exercise.

Till lawmakers repair these structural incentives, organizations and people will preserve going through strain to pay up—even once they’ve performed nothing unsuitable.

When you get one among these demand letters, keep in mind: you’ll have extra rights than it suggests.

Republished from EFF’s Deeplinks blog.

Filed Beneath: , , , ,

Corporations: afp, higbee & associates


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