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Resnick et al. v. CCC, Inc.

The announcement that Seth Resnick, Paula Lerner, and Michael Grecco had initiated a law suit against the Copyright Clearance Center (CCC) and that the suit was framed as a class action suit did not take ASMP's leadership completely by surprise, as we had been given notice that the suit was being filed Tuesday afternoon, the day before yesterday's public announcement. Prior to that, we had no knowledge of the plan to file suit. ASMP has been informally asked to support the legal case. We anticipate a formal request in the near future, as ASMP's policy requires that a legal case undergo careful scrutiny based upon very specific criteria before we will pledge ASMP resources and members' money to any effort.

While it is generally the policy of ASMP that we do not participate in cases at the trial court level, we have done so on rare occasion. The TASINI case is an example of such participation. We were involved in that case in the trial court and followed it all the way through the Supreme Court. That participation was motivated because there was a very important interpretation of the Copyright Law that had to be made to reach a decision. As of this moment it is unclear to ASMP whether the case of Resnick, et al v. CCC will raise any precedent setting issues. With limited information on hand the case seems to be one of proving whether liability for an alleged infringement rests with CCC. That is the basic question in every infringement case, and it is fact specific rather than purely a matter of legal interpretation. It is possible that the defendants could raise legal issues that would warrant ASMP's intervention. We will not know if that is the case till we see how the CCC's attorneys respond, and we will probably not see that response for a few weeks.

ASMP has begun its preliminary review of the case. In this stage we assess the up and down sides of possible outcomes, the financial sustainability of the case's prosecution, liability issues, and more. That process was started late yesterday by ASMP's staff. We have already been called by PDN for comment on ASMP's position and we have seen evidence of Internet discussion, which is likely to get much more intense. If the court certifies this case as a class action it will involve the interests of many thousands of photographers including most ASMP members, and even more attention will be called to it. Accordingly, we have decided to make ASMP's initial concerns and questions about the case public to keep photographers informed of what is at stake here and what the potential good and bad outcomes are. We will update our position as it changes over the months to come.

Finally, this lawsuit may have one immediate negative effect. After the Tasini case was decided in favor of writers we approached CCC about re-opening a stalled dialogue about securing photocopying fees for photographers. In late June CCC agreed to host a meeting of creator's organizational leaders to look for ways to build such licensing systems. Illustrator and photographer organizations were informed and some, including two of the plaintiffs in this case, committed to attend. Because of the problem of work and vacation schedules a suitable summer date for a meeting of all the parties could not be found. The meeting was finally scheduled for September 13. The lawsuit may cause the cancellation of that meeting and all further discussions and negotiations.

ASMP had hoped to resolve this issue through an industry dialogue . We still have that hope, but it is now fading. I can say that ASMP would have discouraged legal action until such a time that the promised dialogue proved to be unproductive. We generally are reluctant to turn business problems into legal problems until all other options have failed. We do not think that the situation had reached that point. In spite of this opinion, I assure you that ASMP is diligently examining this case for possible ASMP support in fulfillment of its role as a photographers advocate.

Sincerely yours,

Dave Harp
President, ASMP