PicScout - Rights, Wrongs, and Facts

What a difference a day makes makes in this 24-hour world. One day after we published, in a criticism of PicScout:

PicScout is supposed to be looking out for photographers, and previously, it seemed that they were putting their great technology to use for good. This blog post, full of misinformation about Orphan Works gives every indication that PicScout has re-charted their course into dangerous waters, and they are now intent upon lulling photographers into believing that the previous versions of Orphan Works bills would have been good for them. This is an unfortunate change of strategy at PicScout, and will harm, rather than help, individual photographers and the photography industry at large.

In response to negative reaction to their blog post on the orphan works act, PicScout has made two public statements on the issue. First, the same author who wrote the original piece we were critical of, PicScout's Vice President of Marketing, (Dan Heller Update..., 5/28/09), wrote "The OWA is not relevant to PicScout. PicScout has no financial or other interest in seeing OWA pass or fail. Am I back-peddling? Absolutely not.", and then, in a personnel matter in the same post, he writes, "On an entirely unrelated matter, here’s another bit of news. When I first started working with PicScout, it was on contract. Things evolved to a point where it seemed to make sense that I join the company. But as the weeks wore on, but the reality of day-to-day logistics such as split between the time zones, made it clear that there was too much to do under the unusual conditions of a small and innovative company. So we’ve decided to return our relationship back to the consulting role we originally had."

Then, later that same day, the CEO of PicScout put out a press release:

(Continued after the Jump)

"Earlier this month PicScout announced the appointment of Dan Heller as Vice President of Marketing. After several seeks together, Dan and I have concluded that the fit just isn’t right. So we’re starting fresh. Dan will return to consulting after a brief transition period."

"We wish Dan all the best, and we will continue to be in touch with him in his capacity as an industry analyst.

Offir Gutelzon,
CEO
PicScout

As was noted on the PDN blog (Dan Heller Goes Through Revolving Door at Picscout, 5/28/09), we too believe he meant to write "weeks" and not "seeks" in his press release.

Its hard to reconcile PicScout’s statements yesterday with the recent PicScout blog posts.

Yesterday, PicScout states that "The OWA is not relevant to PicScout. PicScout has no financial or other interest in seeing OWA pass or fail. Am I back-peddling? Absolutely not.”

But on the PicScout blog PicScout states that the outcome of the orphan works act will be “very very beneficial for copyright holders,” and that ” the opportunities for the creation of the OWA database far exceed the downsides,” and that “if people genuinely care about those billions of images, then supporting the OWA will get the database built.” PicScout has publically stated that the photography industry should support the orphan works act. Huh?

Then we see why. PicScout goes on to state that if the OWA passes, web crawlers (such as picscout) will mine” every record of the copyright office database, and that if an infringement case goes to court, the” judge then hears from the copyright holder who says, “Your honor, I simply used the PicScout search-once-takes-a-second engine I the image is right there.”

For a company focused on copyright protection and enforcement, PicScout is sadly misinformed about the orphan works act, copyright law and copyright office regulations. PicScout’s statements are so outlandish, so incorrect and so dangerous to rights holders that I don’t know what else to do, other than to let their statements and my brief replies speak for themselves:

PicScout:
“Once the Orphan Works bill passes, the Copyright Office will create a database so your works can be found”

Wrong. The copyright office has no intention of creating a database for use in finding works (as evidenced by our previous Q&A with them, which appeared in PicScout - Delusions of Grandeur?, 5/27/09), and the Orphan Works Act has no provision requiring that they do so. The copyright office would prefer not to be involved in the process of certification of third party databases, but would do so if required by law.

PicScout:
“ The CO will, as specified by the OWA, create a “certification process”, which means that it will create the specifications for one to be created. Third parties will apply for certification based on those specs. Contractors that are selected will be paid to create the database itself, at which point, the Copyright Office will put it into operation (including populating it with content and administering it).”

Wrong: The OWA has no provision requiring the CO to select contractors to create a database for the CO. The OWA provides that the CO will be a certifying authority for third party databases which will be operated independently of the copyright office, without further CO involvement, management or supervision. The CO will not operate, populate or administer a database under the OWA.

PicScout:
“If you register your works “there is no downside to the Orphan Work Act….If you never register your photos with the copyright office, then all this hoopla about the OWA is entirely irrelevant… The OWA only affects statutory damages, so only registered works are affected.”

Wrong. Under the proposed language of the OWA, whether you register or not, an infringer may use your work for any purpose without your prior knowledge, and if you ever happen to learn about the infringement, you have no right to stop the infringement, even if it conflicts with exclusive licenses that you have issued, and even if it is objectionable to you, and even if it harms or destroys the market for your image.

PicScout:
"copyright law currently states that no one whatsoever can access records within the copyright office without a specific court order"

Wrong. There is no provision in copyright law limiting access to records within the copyright office, and there is no court order required to access copyright office records. Section 705 of the Copyright Act states that all copyright office records including deposits, registrations, recordations and other actions, including copies of copyright deposits “shall be open for public inspection.” Section 201.2(b)1 of the Copyright Office Regulations further provides that the copyright office shall provide the public with access to registrations and deposits. There is no requirement for court orders or other qualifications.

PicScout:
“Fair use is hard to codify into exact language that everyone can agree on, but that hasn’t prevented it from being applied for decades."

There is unfortunately little similarity between the OWA and the Fair Use provisions of copyright law. Fair Use allows usage for very limited purposes (criticism of the work, comment on the work, news reporting on the work, teaching about the work, scholarship related to the work, or research on the work), and only where the use has no negative effect on the rights holders ability to profit from his work. In contrast, the OWA allows usage of the work for any purpose, even purposes that harm or entirely wipe out the owner’s ability to market for the photograph.

PicScout:
“ if there is a dispute about someone’s use of a work, and they happen to gamble on the bet that they can convince a judge that they did a “diligent search”, then like any other judge looking at facts and circumstances, he or she will assess whether it’s apropos…the onus of proof is on the defense, not the copyright holder. All a photographer has to do is come forward with a claim, and the defense has a big decision to make: will a judge really determine that his search was diligent? I would be hard-pressed to believe that any publisher is ever going to take that risk.”

Wrong. Under the OWA, the rights holder bears most or all of the risk when filing a claim of copyright infringement. With the determination of diligence left to the court, a photographer takes a huge risk in filing an infringement claim. In the event that the court finds that the search was diligent, the photographer’s damages will be limited to the fee that both the photographer and the infringer would have agreed upon before the infringement occurred. The fee could be quite low, if for example the infringer can demonstrate that he typically licenses microstock for $1 for unlimited worldwide usage. This would leave the photographer with $1 in damages and tens of thousands of dollars in court costs. An unacceptable risk for most photographers. Pursuing claims of copyright infringement will be nearly impossible under the OWA.

PicScout:
“If so, the OWA could affect some claims made by copyright holders. However, only a tiny fraction of image uses are ever directly linked to profits anyway.”

Wrong. Under existing copyright law, a photographer need only show evidence of the gross revenues of the infringer. The infringer must then prove to the court all revenues that are not attributable to their infringing use of the image. Any profits that the infringer can’t prove unattributable will be awarded to the photographer. The burden of proof is on the infringer, no the photographer, and profits can be directly or indirectly attributable to the use of the image.

PicScout:
“Since the only images that are affected by provisions of the OWA are registered works, then one or both of these will be true: (1) all databases will have a complete set of CO records, and/or (2) web crawlers (such as picscout) will mine every single one of them, fingerprint the images, and still provide the same search-once-takes-a-second methodology.

Wrong, wrong and wrong. Both registered and unregistered works would be significantly impacted by the OWA. There are no plans to allow third parties to mine the CO database.

PicScout:
“The only people who would truly be protected are certain kinds of non-profit educational institutions and uses that are considered education or for the public interest.”

Wrong: the OWA is structured to provide comprehensive legal shelter from copyright infringement remedies for anyone who wishes to use a photograph but can’t find the owner. Not just non-profits, but also publishers, ad agencies, design firms, special interest groups --- anyone. Provided that they complete a diligent search and fail to find the owner, the infringer may use the photograph for any purpose without permission of the owner, and is only liable for a fee that the infringer agrees is reasonable. Further, the owner has no right to stop an infringement once it begins, even if the owner surfaces and objects to the usage because it competes directly with the owner, or because it is otherwise objectionable to the owner.

PicScout:
“No matter how you look at this, the mere existence of a database is a good thing.

I must point out that we can enjoy the benefit of databases without the horror of the orphan works amendments as they were proposed in the last session of Congress, and which will be a likely starting point whenever they return to the legislative scene.

I have so much respect for the fireman who comes to the rescue and saves people from a burning building. I have contempt for the fireman who hopes for a fire so he can come to my rescue. Prior to PicScout telling everyone to "Relax" and misinforming everyone with "If you never register your photos...You already have very little protection (or recourse) against infringers, and OWA doesn’t make it worse..." I saw PicScout as that former fireman who was coming to the rescue of a lot of photographers and doing good. When PicScout took the relax, don't worry position, when every photo trade organization has said OWA is bad for photographers in one way or another, that was a cause for alarm and concern that they might have been the latter fireman.

Well, it seems, PicScout has heard the alarm, and reacted to the smoke in their own firehouse. Let's hope they don't make another mistake, because, frankly, when OWA passes, PicScout, Idee's TinEye, Digimarc, and others yet unannounced, will likely be, in one form or another, parts of the solution. I just don't want them cheering for photographers to need them like that, it's bad karma, if nothing else.

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