Tuesday, January 31, 2006

The Embedded Photographer in Iraq

The Wizbang blog had a posting yesterday about a copyright dispute involving the U.S. Army and Michael Yon, a former Green Beret and photographer/blogger who took the most searing photograph of this profoundly controversial war: a May 2005 picture of a solider cradling an dying, very young Iraqi girl, one of tens of thousands of innocent civilians and soldiers killed, tragically and wholly unnecessarily. As the father of a daughter the same age, I will never forgive the one individual responsible for her death and all the others.

Mr. Yon was not an employee or contractor of the United States government, and indeed was employed by no one. The only agreement he is reported to have had with the government was a "hold harmless" agreement with respect to physical injuries, an entirely understandable agreement. According to Mr. Yon, the Army released the photograph without his permission, where it was prominently reproduced and displayed. The Army claims that the hold harmless agreement covers copyright (the document will, as is said, "speak for itself"), and is also reportedly asserting an implied license from Yon having uploaded the picture using government servers.

The implied license argument seems like a stretch, since there is no allegation in the reports that Yon created the work for the Government and intended that they use it. Moreover, given where Yon was, use of government servers may have been the only option. The government's position would, if accepted, presumably apply to all material that passes through its servers, a class that would sweep in quite a lot of material from a diverse number of sources. But even if there was an implied license one would have to determine its scope. No doubt the government will also claim fair use news reporting. If so, perhaps the Government's motivation for the exploitation of what was a deeply moving, private act of compassion and sorrow would be factored in as well.

Any claim will not be brought in federal district court. Instead, pursuant to 28 USC 1498(b), the claim must be brought in the Court of Federal Claims. No attorney's fees are available, no injunctive relief, only "reasonable damages." On the plus side, the current Chief Judge of that court is my old friend, Ed Damich, a former copyright law professor and a former Senate Judiciary Committee staffer to Orrin Hatch. If he gets the matter, we are assured of expert and scrupulously fair treatment.


Anonymous said...

Hmm,I wonder if there is a remedy. Para (c) of 1489 provides: "The provisions of this section shall not apply to any claim arising in a foreign country."

Anonymous said...

Jim - the subsequent paragraphs below are largely academic exercises b/c the Army and Mr. Yon have resolved this copyright dispute: http://www.michaelyon-online.com/wp/copyright-dispute-resolved.htm

Without doing any research, the servers utilized by the Army were likely on military grounds possessed by the US in whatever foreign country(ies), or hosted by servers possessed by the US. IIRC, most military bases amd possessions (such as moving naval ships in foreign waters) are considered as part of the US (or controlled by the US). So, technically, I think the photographer would have a CoA based on that understanding, even though it would seem that the activity was purely extraterritorial.

In addition, or an an alternative, there is an argument (little known to many) that could be borrowed from a Court of Claims case from 1976: Decca Ltd. v. the United States.

So as not to take up too much bandwidth, the bullet points from Decca (and patent infringement jurisprudence in particular) are:

* 200 years of patent infringement precedent indicates that direct infringement under 271(a) (and by extension 1498(a))cannot be extraterritorial

* in Decca, Court of Claims created a "beneficial use and control" standard to capture the extraterritorial activity of the navy within the snare of direct patent infringement as set out in 1498(a) (which many accept as an analog of 271(a))

* this standard was revived / resurrected by the Fed. Cir. in NTP v. RIM, aka "The Blackberry Case"

In the case of Yon v. US (hypothetically, of course), the servers that the photographer were hosted on and or distributed through (worldwide) were controlled by the US army and was for the beneficial use of the army. Thus, an argument could be made, by analogy, that the same logic would shift from 1498(a) to 1498(b).

Personally, I think the Blackberry decision is bad, and unfortunately, could be used by analogy in copyright cases (which may butt heads with extraterritoriality jurisprudence in copyright cases).

I wrote my master's thesis for our LLM in IP program on the NTP case, and remain convinced that the courts blew this decision, but were trying to nail RIM for what appears to be an attempt to circumvent US patent laws. JMHO.