By visitor blogger Elizabeth Townsend Gard, John E. Koerner Endowed Professor of Legislation, Tulane College Legislation Faculty
[See part 1 about defendant opt-outs and part 2 about defendant defaults.]
Eight months after submitting, the primary two Copyright Claims Board (CCB) Last Determinations have been handed down. Flores v. Mitrakos, 22-CCB-0035, February 15, 2023, and Oppenheimer v. Prutton, 22-CCB-0045, February 28, 2023.
The Copyright Claims Board permits claimants to file copyright dispute claims for five situations: alleged copyright infringement; a declaration of noninfringement of an unique proper; declare for misrepresentation throughout the discover and counter-notice course of beneath the DMCA; counterclaims; and all “authorized or equitable defenses beneath copyright legislation or in any other case accessible.”
The method is as follows:
- Step One: A claimant begins a declare (infringement, noninfringement or misrepresentation), and pays the primary a part of the submitting price, $40.
- Step Two: The CCB does a compliance review of the filed declare to find out if the declare qualifies for the CCB. That is finished by a employees legal professional. If the declare is rejected at this stage, the claimant has alternatives to amend a declare twice.
- Step Three: If the declare is discovered compliant, the subsequent step is service of course of on the respondent, which is the claimant’s accountability.
- Step 4: after being served, the respondent has sixty days to opt out.
- Step 5: if the respondent doesn’t choose out, then the declare enters the “lively section.” The respondent information a response to the declare. There’s an Preliminary Order, the place the claimant pays the second a part of the submitting price, this time $60.
- Step Six: 14 days after the Preliminary Order and fee of the second price, the CCB issues a Scheduling Order, which features a timeline for the respondent’s response, pre-discovery convention, discovery, post-discovery convention, written place statements, a listening to, and dedication. The claimant should additionally, in the event that they haven’t already, register their work beneath the expedited system for the CCB.
Flores and Oppenheimer are the primary two claims to achieve a Last Willpower. (Others have dropped out as a result of they didn’t move the compliance assessment, the respondent opted out, or for different causes). These first two closing determinations present a glimpse into the method that’s occurring, and the way the Board is making its selections. Let’s have a look.
Flores v. Mitrakos
The primary dedication to be handed down was Flores v. Mitrakos. Not like a lot of the CCB circumstances to this point, this case includes Part 512(f), the DMCA reason for motion for bogus takedown notices. Per the CCB’s small claims courtroom ethos, the case concerned each a professional se claimant and respondent. The result itself was stipulated by the events, deferring a lot of the attention-grabbing questions in regards to the CCB to future rulings.
Michael Flores, representing himself, filed a declare for misrepresentation beneath Part 512(f) on June 28, 2022, twelve days after the CCB started. He alleged that Michael Mitrakos had filed a false DMCA takedown discover with Google. He included the total notification of the take-down within the kind. Flores despatched a DMCA 512(g) counter-notice on June 27, 2022, and filed with the CCB the subsequent day. He explains: “My use of details was from a database that initially was partially beneath my copyright authorship and printed on-line and viewable by way of the content material taken down since 2021, and the database was then used with written permission to populate the one viewable from the content material because it was when taken down.” Basically, a working relationship has gone bitter.
Right here is the outline of the misrepresentation:
I’ve a database of “details” and handpicked photographs for a whole bunch of places world wide. This extension stole all of that information, each single considered one of my photographs and each single “reality” letter for letter.” Respondent claims he’s the “proprietor” of this “factual” information, and that the pictures he’s additionally the proprietor of. Actually, the factual information was scraped by each of us over a time frame in 2021 and 2022 and put right into a database. Once we decided that we should always finish our working relationship, I asserted my authorship declare over the content material being taken down, and in writing he mentioned “I offer you permission to take the API codebase to recreate heroku” (Heroku is a supplier of database and different companies). I proceeded to do this. Now right here he claims this infringed his copyright, when in actual fact that is merely a retaliatory declare attributable to my submitting a DMCA declare based mostly on his appropriation of my design and copyright laptop code expressions on a number of events with out written or verbal permission.
Flores claimed the hurt suffered is earnings from the location.
Discover of Compliance and Instructions to Serve: August 3, 2022
The CCB supplied Michael Flores with a Discover of Compliance and Course to Serve. (Less than half of CCB cases have reached that stage). The CCB Board discovered his criticism met “statutory and regulatory necessities for bringing a declare,” and that the declare “supplied sufficient info” for respondent to answer the declare. The doc then directed Flores to serve in a “Service Packet,” supplied by the CCB in a PDF, and add proof of service to the CCB inside 90 days of discover. The Service packet contains:
- An preliminary discover
- The authorised declare, together with any supplemental paperwork submitted together with your declare
- An opt-out notification kind.
Flores was to print out the Service Packet, staple it (sure, they embody that step), and have it served to every respondent. That is the primary bodily component of the method. Then, Flores needed to add the Proof of Service to the eCCB inside seven days of finishing service.
If service didn’t occur inside 90 days of this discover, the declare could be dismissed with out prejudice. The Proof of Waiver was uploaded by Michael Flores, however it’s locked.
Decide-Out Interval
As soon as discover is waived or served, a 60-day opt-out interval started for the Respondent. The respondent didn’t choose out and the choose out interval ended on October 24, 2022.
The “Energetic Part” – October 24, 2022
As soon as the waiver had been uploaded, the case entered the “lively section” as a result of the respondent accomplished a waiver of service kind and didn’t choose out throughout the sixty day interval.
Flores chosen the “smaller claims” observe, which is extra streamlined, with just one presiding Copyright Claims Officer.
First Default Discover
The respondent had till December 27, 2022 to file a response. The respondent didn’t reply then, and the CCB despatched a discover on January 11, 2023. Six days later, on June 17, 2023, the Respondent filed a response:
In different phrases, the respondent acquiesced to the complainant’s requests. At an preliminary convention on January 23, 2023, the events reached a settlement and requested to dismiss the declare. On February 3, they submitted a joint request to dismiss the continuing:
So, did the CCB course of work? It looks as if it did. It took eight months, however the possession query of the pictures has been settled.
Nevertheless, it isn’t what I anticipated for the primary case to be lastly decided: Part 512(f) and an possession dispute between former enterprise companions. And the Copyright Claims Officer didn’t make a substantive dedication; the case was merely settled.
To recap:
- Occasion occurred (notice-and-takedown despatched by Respondent): June 27, 2022
- Counter discover by Claimant despatched: June 27, 2022
- Claimant filed CCB Misrepresentation declare: June 28, 2022
- A month later: Respondent is requested to create an eCCB account July 25, 2022
- Discover of Compliance and Course to Service Discover (together with Decide-Out Choice to Respondent) – August 3, 2022
- Proof of Waiver uploaded on August 16, 2022
- Decide-out Interval expires and Order to Pay Second Submitting Payment and Register for eCCB (registering the work) – October 24, 2022
- Claimant pays the secondary submitting price the identical day.
- Preliminary Scheduling Order – October 26, 2022
- The respondent doesn’t reply – First Default Discover Jan 11, 2023
- Declare Response by Respondent, January 17, 2023 (he concedes)
- Preliminary Convention on January 23, 2023 the place events agree they’d reached a settlement and wished to dismiss.
- Request for Dismissal by each Events, February 3, 2023
- Last Willpower Feb 15, 2023.
Eric requested me: how would this have been totally different if the claimant had pursued the normal route of suing in federal courtroom? The CCB submitting price is about $300 lower than federal courtroom. The CCB prices solely $40 to initially file, and $100 complete if the respondent doesn’t choose out. Second, the CCB has been designed to be streamlined and useful to the professional se applicant. They fill in a kind, somewhat than draft a criticism. The CCB additionally appears to supply a straightforward different to the subsequent steps in a Part 512 challenge, which was what occurred on this case. And maybe, the CCB is a much less intimidating venue — these are actually small claims, and this one even self-identified as a smaller declare. It made me consider a brand new alternative: perhaps in the future we can have a “Choose Judy” present for the CCB claims! We should wait and see!
Oppenheimer v. Prutton
The second closing dedication was handed down on February 28, 2023. This declare was introduced by a photographer–the inhabitants we thought could be utilizing the CCB. But it surely was not a declare filed by Oppenheimer, however a declare referred to the CCB from the US District Court docket for the Northern District of California. What? Yep.
§1509. Relationship to different district courtroom actions
(a) Keep of District Court docket Proceedings.-Topic to part 1507(b), a district courtroom of the US shall challenge a keep of proceedings or such different aid because the courtroom determines applicable with respect to any declare introduced earlier than the courtroom that’s already the topic of a pending or lively continuing earlier than the Copyright Claims Board.
(b) Different Dispute Decision Course of.-A continuing earlier than the Copyright Claims Board beneath this chapter shall qualify in its place dispute decision course of beneath part 651 of title 28 for functions of referral of eligible circumstances by district courts of the US upon the consent of the events.
Right here’s the odd half. The keep was issued on April 6, 2022 — over two months earlier than the CCB turned lively. So, let’s return to the unique criticism Oppenheimer filed in federal courtroom.
On February 25, 2021, David Oppenheimer filed a criticism towards Douglas Prutton. At challenge was one {photograph} of the Ronald V. Dellums Federal Constructing in Oakland, California. Oppenheimer had made the {photograph} accessible on his web site, http://performanceimpressions.com. He seems to take aerial images of many alternative cities. The image at challenge was taken in 2017, and was registered with the U.S. Copyright Workplace on July 29, 2017. Here’s a screenshot of his web page, together with apparently the picture in query:
Douglas Prutton seems to be a solo practitioner working towards within the Bay Space. In 2019, he had a easy web site that included a “The place We Work” web page. As a part of that web page, he had photographs of buildings; considered one of them included Oppenheimer’s picture. Word: this isn’t on the entrance web page of Prutton’s web site, and appears like a typical internet web page, the place somebody made it for him, grabbed some photographs, and caught them in. Screengrabs from October 29, 2019 from the Wayback Machine.
On June 4, 2018, Oppenheimer discovered his picture on Prutton’s web site. Prutton admitted to copying and mentioned that his grownup daughter had helped him together with his web site. (A typical factor that occurs in our world). Oppenheimer despatched him a letter. Prutton eliminated the picture from his web site. By November 21, 2019, the picture is not included within the Wayback archive of that web page.
Oppenheimer sued two years later, alleging infringement and removing of copyright administration info. The case proceeds alongside in federal courtroom. On April 16, 2021, Prutton responded. The case then is scheduled for mediation, which doesn’t appear to go properly. The case is scheduled for trial for Could 2022. Then, on April 6, 2022, an order granting a keep of motion till the matter is resolved earlier than the CCB is issued. “The events should file a joint standing assertion inside one 12 months of this order or inside 14 days after a closing determination by the Copyright Claims Board, whichever happens earliest.”
So, they moved the dispute to the CCB venue, as soon as it was open for enterprise, as a substitute of going to trial. Each agreed to this transfer, and as a part of that, dropped the removing of copyright info declare. The Last Willpower notes that Oppenheimer feels entitled to a licensing price, regardless that he has not offered this {photograph}, and suggests that he’s entitled to $2,775 a 12 months for the usage of the {photograph}.
So, they began the CCB course of. It took 13 steps/paperwork to finish. Listed here are some highlights.
- The declare was filed on July 2, 2022. The declare says hat infringement is ongoing from 2018-present, regardless that the picture was eliminated in 2019. Claimant hooked up the unique criticism, the order granting a keep, and reveals.
- Scheduling Order, together with details {that a} Scheduling convention was held and that respondent waived their proper to choose out.
- Prutton information an Reply, which seems to be his reply from the courtroom case, in addition to a Declaration of Respondent. Pruttton appeared professional se, regardless that he’s an legal professional himself. His “Declaration of respondent” says: “In 2019 I acquired a letter from a lawyer in Arkansas advising me that the picture of the Oakland courthouse on my web site was his consumer’s picture (his consumer was David Oppenheimer). I responded with a letter telling this lawyer that I used to be sorry for the error and that the picture had been faraway from my web site. He responded with a letter to me demanding $30.000.00. I responded with a proposal of $200.00. He responded by refusing to go under $30,000.00. I then supplied $500.00. Mr. Oppenheimer then, via a lawyer in California, sued me in federal courtroom.”
- We additionally get the declaration of his daughter, Mariana Prutton, who’s a licensed marriage and remedy counselor in California. “A number of years in the past I supplied to assist my father together with his enterprise web site. He agreed and I made some adjustments to his web site. As a part of these adjustments I consider I’ll have downloaded a photograph of the federal courthouse in Oakland, California and put it on his web site. I don’t recall the place I situated the picture on the web. I do know that the picture I downloaded from the web of the federal courthouse didn’t have any copyright info seen on the picture. There have been many images of that courthouse on the web that didn’t have any copyright info on them. I might not have chosen one which had such info on it. There would have been no purpose to. I additionally didn’t crop the picture in order that any copyright info couldn’t be seen. I might not have eliminated any copyright info as I don’t even know the way to do this. I don’t even know if that’s potential.” This was a declaration for the CCB Case, dated 1/10/2023.
- We get just a little extra info from Douglas Prutton’s assertion of details, together with how Oppenheimer finds his images and litigates, and likewise that the trial date was set for Could 2022: “The federal case was scheduled for trial on Could 16, 2022. I served a subpoena on Mr. Oppenheimer’s legal professional on March 29, 2022 demanding that Mr. Oppenheimer produce at trial paperwork relating to his earnings sources (from promoting and licensing images and from copyright trolling). The subsequent day, March 30, 2022. Mr. Oppenheimer’s legal professional emailed me suggesting that we comply with current the declare to the copyright claims board in lieu of trial. and that the DMCA declare and legal professional’s price claims could be dropped, leaving solely the copyright infringement declare.”
There’s a little bit of mud throwing, e.g., Prutton calls Oppenheimer a “troll”. The CCB within the Last Willpower sidesteps that challenge, and appears to Prutton’s two defenses: honest use and unclean fingers.
Truthful Use:
From my perspective, the honest use evaluation is what I’ve been ready for. How is the CCB Board going to conduct a good use evaluation, and are they going to have a look at the precedent of the district courtroom by which the case initially arose, on this case the 9tth circuit? As a part of the legislation, that’s what they’re purported to do.
The citations for the fundamentals of honest use do come from ninth circuit circumstances. They word that Prutton didn’t tackle the primary three components: “As a result of the proponent of the affirmative protection of honest use has the burden of proof on the problem, Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 459 (ninth Cir. 2020), cert. den., 141 S. Ct. 2803 (2021), his failure to deal with three of the 4 components is deadly to that protection.”
It’s price reiterating that it is a professional se respondent, albeit an legal professional, so the failure to deal with authorized components may warrant some grace. Nevertheless, the honest use query has been addressed all through the method of the district courtroom determination, and the fourth issue was what the courtroom and dialog was targeted upon. The Last Willpower didn’t embody their earlier dialog on this case about honest use, and as a substitute, merely mentioned that the respondent had not addressed the 4 components.
The Board continues: “Furthermore, based mostly on the proof within the file, the Board can not conclude that any of these three components weighs in favor of honest use.” They really do a good use evaluation, issue by issue, utilizing ninth circuit circumstances.
First, Prutton’s web site selling his legislation agency is industrial in nature and the use was non-transformative. Second, Oppenheimer’s {photograph} was artistic. Third, Prutton makes use of the entire picture. The fourth issue, affect in the marketplace place, was addressed by Prutton, with the protection that Oppenheimer by no means licensed the {photograph}. It’s price quoting the Last Willpower:
It’s true that if Oppenheimer has not truly licensed the Work—and he has not come ahead with any proof to recommend that he has licensed of any of his images—any market impact brought on by Prutton’s use of the Work could also be minimal. Nevertheless, that doesn’t imply that this issue weighs in Prutton’s favor on this case. Whereas not figuring out any particular licenses for any of his images prior to now, Oppenheimer does state that he makes his images accessible for license on a public web site and that this Work was likewise accessible. Oppenheimer Decl. ¶ 4 & Ex. C. Different circumstances the place Oppenheimer has been a litigant present that he has some licensing historical past, nevertheless minimal. See Scarafile, 2022 WL 2704875, at *4 (suggesting Oppenheimer made “lower than $5,000” from licensing his works in 2017). Due to this fact, there’s a market accessible for this Work, which Prutton evaded by copying and displaying the Work on his web site with out permission. As a result of Prutton’s use of the work was industrial and “quantity[ed] to mere duplication of the whole thing of” the work, cognizable market hurt is presumed to exist. Brammer v. Violent Hues Prods., LLC, 922 F.3d 255, 268 (4th Cir. 2019) (citing Campbell, 510 U.S. at 591); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 531 (ninth Cir. 2008). Moreover, even when Oppenheimer had determined to not license the Work in any respect, he has the precise to make that call somewhat than see his works used with out permission. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 551 (1985).
Some takeaways:
- Respondent didn’t do a good use evaluation, however the Board did anyway.
- The Board used the circumstances from the related circuit, on this case the ninth Circuit.
- Utilizing somebody’s {photograph} on a industrial web site (even buried on the “about us” web page) doesn’t represent honest use as a result of it isn’t transformative and makes use of the entire {photograph}. Inform your grownup daughter this instantly!
- And the Board didn’t have interaction or acknowledge the already ongoing broader social or jurisprudential discussions about honest use on this case.
It makes me consider all of these photographs getting used on web sites throughout the Web. This Last Willpower actually opens up the marketplace for photographers to file CCB claims for makes use of.
Unclean Fingers: The second protection is unclean fingers. Prutton claims that Oppenheimer was unreasonable in settlement negotiations. We be taught that Prutton supplied $500 to settle, however the legal professional insisted on $30,000. Additionally, Oppenheimer took Prutton to federal courtroom over an incidental use of {a photograph}, which when requested was taken down two years earlier than the criticism was filed in federal courtroom. Prutton additionally brings up the allegation that Oppenheimer has a protracted historical past of pursuing copyright litigation fits.
The CCB turns to the ninth circuit once more for the definition of “unclean fingers,” together with that it’s hardly ever acknowledged. “Prutton doesn’t current any proof of actions taken on this case that might result in the rarely-recognized discovering of unclean fingers.”
Damages. The Board then turns to damages. Keep in mind, this case has been going since 2021. One can solely think about the authorized charges and prices so far. Oppenheimer requests the utmost statutory damages beneath the CCB of $15,000, because it was well timed registered. (The Last Willpower notes that the damages are $7,500 for not well timed registered works). The Board then confirms it’s well timed registered. However then: “The problem is moot, nevertheless, on condition that the Board wouldn’t award over $7,500 on this case whatever the cap.”
The Board addresses the Harmless Infringer Protection. The Board notes that for infringement the everyday minimal award is $750. That is a part of the Copyright Act, not CCB rules. 17 U.S.C. Part 504(c)(1). Prutton desires the Board to use the Harmless Infringer Protection, which lowers the minimal award to $200. 17 U.S.C. Part 504(c)(2) says: “in a courtroom’s discretion the place the infringer “sustains the burden of proving, and the courtroom finds, that such infringer was not conscious and had no purpose to consider that his or her acts constituted an infringement of copyright.” What’s the burden? His daughter submitted a declaration that she discovered no copyright discover on the picture.
The Board responds: “Nothing within the Board’s mandate beneath 17 U.S.C. § 1504 would prohibit awarding as little as $200, ought to a respondent fulfill the burden of proof beneath the harmless infringer customary.” That’s actually attention-grabbing. Are they together with that info of their handbook to assist respondents with their defenses? Let’s look!
The Handbook gives a desk of frequent defenses.
https://ccb.gov/handbook/Response-Infringement.pdf
I don’t discover anyplace discussing damages, and definitely not Harmless Infringer Protection. But, the burden is on the respondent to show these components. Furthermore, the Harmless Infringement Protection is proscribed to copyright discover on a piece, and removing of that discover is even worse. 17 U.S.C. Part 401(d). “Oppenheimer submits proof that at the least in some locations the place the Work is posted, there are full copyright notices.” So, did the Grownup Daughter get it from a spot the place it had copyright discover or not? She says she didn’t take away it, and there was no copyright discover on the picture she used. Wouldn’t one be capable of inform from the unique picture uploaded at Go Daddy? This looks as if a knowable reality.
The Last Willpower continues: “Nevertheless, on this case, the Board doesn’t have to resolve whether or not Prutton had entry to copies of the Work with a copyright discover. The burden positioned upon Prutton, an legal professional, to show that he “was unaware and had no purpose to consider that his or her acts constituted an infringement of copyright” is clearly not glad right here.” The Board doesn’t clarify why. We’ve no clear understanding of what the usual and requirement is likely to be, and if this was a professional se respondent, apparently no steerage, at the least within the CCB Handbook.
The Board does cite to a case that rejects the notion that an harmless infringement happens whenever you discover one thing on the Web and assume it’s free to make use of. So, that’s one thing. The protection that “I discovered it on Google and thought it was okay to make use of” is not going to fly with the CCB.
So, we get to the award a part of the Last Willpower. This half is fascinating.
- The Board affirms that statutory damages would not have to correspond to precise damages, of which Oppenheimer had none.
- Courts have discretion so long as the award falls throughout the statutory vary of $750 and on this case, $15,000 for well timed registered works on the CCB.
- Courts usually look to the connection of the particular damages and statutory damages, together with the Northern District of California.
- Numerous courts have restricted damages to $750 when a plaintiff has not submitted legitimate proof of precise damages, in order to not have a windfall.
Oppenheimer didn’t submit proof that he licensed this work or another works. The Board notes that Oppenheimer has been awarded $750 in at the least two earlier circumstances which can be just like this one. So, that’s attention-grabbing. First, that there’s a file of Oppenheimer’s work, and second, that the Board reviewed the damages from earlier circumstances. These are talked about by Prutton in his responses to the CCB.
Additionally attention-grabbing: the three-panel Board voted…and included the vote within the Last Willpower. Two members needed to award $1,000, and one needed to award $750. They settled on $1,000. “Prutton used a small picture of the Work on a subpage of a web site and there’s no proof that Oppenheimer suffered any damages or that Prutton reaped any positive factors from the use. Nevertheless, Prutton’s use was industrial in nature and lasted at the least a 12 months. The Work is an aerial {photograph}, which arguably provides it further worth. The dimensions of the picture positioned on his legislation agency web site was not giant, however it was clearly bigger than thumbnail-sized. On stability, the damages awarded ought to exceed the minimal of the statutory vary.”
That is superb as properly. The damages appear to be based mostly on:
- Size of time on the web site
- The dimensions of the picture
- The character of the web site (e.g. industrial, though there’s not a lot deeper evaluation of what makes a webpage industrial, and if an info web page in regards to the solo legislation agency constitutes a industrial use).
- The character of the picture: that it’s an aerial {photograph}.
So, I’m undecided how satisfying this second Last Willpower is. In some methods it’s each hopeful and worrisome.
Hopeful:
- Cautious evaluation is being finished, together with utilizing the suitable circumstances from the jurisdiction at hand
- Even when a respondent doesn’t make a full honest use evaluation, the Board does.
- The Board seemed to earlier outcomes of litigants to ensure there was no windfall.
- The Board is utilizing the parameters of the Copyright Legislation for damages, which implies we will depend on the case legislation to grasp that.
Worrisome:
- Frequent habits was penalized $1,000 plus years of litigation.
- When respondents don’t make full arguments, they’re penalized. That is worrisome with professional se respondents.
- The Handbook doesn’t appear to assist the events perceive the damages a part of the evaluation, which doubtlessly contains Harmless Infringer.
- The CCB didn’t tackle the provide to accept $500, and the claimant’s insistence of $30,000. There was no taking this into consideration. Ideally, the provide to settle ought to have been addressed.
So, that’s the second case. I used to be curious if Oppenheimer had filed different claims on the CCB. It seems, for the second, that is the one one. Will probably be attention-grabbing to see if the result feels profitable to a serial litigant or not.
However the Oppenheimer determination is rather more troubling, when you notice {that a} good quantity of the circumstances being filed are photographers complaining that an organization — usually small just like the legislation agency — are casually utilizing {a photograph} on a web site. Will the CCB change our tradition? When my child was within the 4th grade — a few decade in the past — the primary project after the primary day of faculty was to seek out Google photographs and put them on their binder. The CCB with this determination could sign that the period of grabbing photographs and pasting them on one’s web site is over or it may cost $1,000. And with firms like Pixabay and others, that’s a lot simpler to do. So CCB + search capabilities could change our relationship to how we take into consideration photographs. We are going to see what occurs.
[Commentary from Eric:
In the Oppenheimer case, I wonder if the CCB process was helpful to the parties compared to remaining in federal court. I think we could make an argument that the CCB resolved the dispute that had been festering in court, but we also have proof that the plaintiff in this case didn’t need the lower-cost access provided by the CCB because he proved he was willing to go to court. Maybe both parties would have been better off if the case had started in the CCB rather than in federal court.
As for the denouement, the $1k award surely isn’t that exciting to photographers. It’s vindication of the plaintiff’s claim, but photographers will have to spend $100 just to start, plus the cost of effectuating service, and then spend many months adjudicating it–all for a $1k payoff…? Is that a good use of photographers’ time and money? Perhaps the CCB won’t attract more photographer claims if $1k proves to be the prevailing damages award. Plus, since the photographer’s C&D got the defendant to stop the infringement by removing the photo, maybe society would have been better if no litigation took place at all?
If this case had remained in federal court, it’s not clear what the court would have done with the attorneys’ fees. Oppenheimer was nominally the prevailing party, but the damages award of $1,000 was much closer to Prutton’s $500 settlement offer than it was to Oppenheimer’s unreasonable demand of $30,000. For that reason, I think a court might have decided that PRUTTON was the prevailing party and made Oppenheimer pay his attorneys’ fees. The CCB has very limited rights to award attorneys’ fees, so perhaps Oppenheimer dodged that bullet.]
Conclusion
One case associated to possession and Part 512. The opposite associated to what looks as if a copyright proprietor who litigates on photographs that haven’t any licensing earnings, coming from the district courtroom. We’re nonetheless ready for a fundamental infringement case – began as a declare, and with doubtlessly a good use protection. Let’s see what comes down subsequent.
Prior Weblog Posts on the CCB