Comments on: Sideloading Service Defeats Copyright Infringement Claims–BWP v. Polyvore https://blog.ericgoldman.org/archives/2016/07/sideloading-service-defeats-copyright-infringement-claims-bwp-v-polyvore.htm Sat, 23 Jul 2016 15:03:33 +0000 hourly 1 By: Ralph Haygood https://blog.ericgoldman.org/archives/2016/07/sideloading-service-defeats-copyright-infringement-claims-bwp-v-polyvore.htm#comment-1593 Thu, 21 Jul 2016 00:55:00 +0000 http://blog.ericgoldman.org/?p=16191#comment-1593 As an incipient founder of an online service featuring user-uploaded images, I find this case discouraging. Sure, Polyvore won on liability, but presumably, their victory wasn’t cheap. Given the situation as you’ve described it, it seems to me this case should have been thrown out almost immediately. By not throwing it out and by denying a fee shift, the court has handed BWP a victory, in that when BWP attacks other online services, those services, in view of this case, may decide to pay BWP off in order to avoid the expense of litigation, even if it’s obvious they too would win on liability.

]]> By: David S. Gingras https://blog.ericgoldman.org/archives/2016/07/sideloading-service-defeats-copyright-infringement-claims-bwp-v-polyvore.htm#comment-1592 Wed, 20 Jul 2016 18:53:00 +0000 http://blog.ericgoldman.org/?p=16191#comment-1592 I am not a fan of BWP. They are bottom-feeding copyright trolls so it’s always enjoyable to see them lose.

But seriously — I cannot comprehend how many lawyers (and judges) fail to grasp this most basic concept of copyright law — since 1976, THERE IS NO SUCH THING AS “COPYRIGHTED” vs. “NON-COPYRIGHTED” images. If you use either of those words when trying to explain the concept of whether a work is protected and thus capable of being infringed, you should find another line of work.

Excluding only those rare works which lack sufficient creativity to qualify for protection (i.e., a photo of a white wall without any discernible features) ALL images are “copyright-protected” or “copyrighted” from the moment they are created. Some of those images may also be REGISTERED with the copyright office at some point, but all works — registered and unregistered — are still subject to protection. Registration only affects the available remedies, not the existence of a valid copyright in the work.

Accordingly, it blows my mind to see a federal judge focusing on the fact “that Polyvore users can … clip both copyrighted and non-copyrighted images.” Um, actually, NO THEY CAN’T — because ALL images are “copyrighted”…it’s just that some of those images are registered while others are not.

SMH.

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