Got the letter ....A question and my plan....

[mreams]

First off thank you for this site.  I just made a $10 donation   I have read many posts and watched videos for about 5 hours!

I have a business I am starting and registered businessname.com and called my business "businessname"  It is not an actual legal or registered business, it is just a name I used.  I do own the domain.  The letter I got was addressed to Legal Dept: Businessname.   So my question is since "Businessname" doesn't even really exist does that matter?  Or because I own the domain it matters?  They want $1040 US for 1 small 1 inch square image that has been on my site for 3 months!!!

Anyway here is my plan:

Reply to Getty stating that telling them I have taken the images down immediately upon receipt of the settlement demand letter (I did do this) and apologize for an inconvenience.  Mention that I obtained the image from a third part and did not know it had a copyright.  I will mention that my website has made zero profit thus zero profit from the use of the image.  I will show 3 sites with similar images ranging from $5 to $25 for 1 year use.  I will enclose a check for $50 to close out the matter.  I will write in the memo section of the check "full payment for settlement (claim number)"

When they respond asking for a full payment, and I am sure they will, I will ask for proof of:
1 - Copyright of the image in question
2 - signed paperwork of the artist transferring copyright paperwork to Getty
3 - The exact formula they used to come up with the settlement demand
4 - Sales records of that image at that price or any price
5 - Exact day that the infringement started.

I am sure they will respond again and demand payment.  I will use Matthew Chan's letter on Scribed as a guide for my reply.  I will basically call them out on how unprofessional they are and that this is extortion etc.  I will NOT pay more than $50, and I will tell them that.

If they give the file to a collection agency I will tell the collection agency that this is NOT a debt but a settlement claim that I have not agreed to pay and I will NOT pay. I will tell the collection agency that I will file a complaint against them with the proper authorities for harassment if they continue to contact me.  I will block there number and not respond to emails etc.If they end up taking me to court good luck to them.  First off I am in Canada and I don't think they will bother with me.  If they do no judge in their right mind would award the outrageous amount they want.


Any thoughts anyone?

Matt

[Robert Krausankas (BuddhaPi)]

Welcome to the forum! Glad to see you've done some homework, you're on the right track in your plan and thinking.. Generally speaking Getty goes after the domain owner, doesn't matter if it a business a personal site, or a charity...rest assured your 50.00 check will be returned. I'm not sure NCS can even contact you, if you are in Canada, but if they could I would not block there calls/emails, I would keep a record of every instance, also keep a record of Getty not accepting your fair offer. You might consider getting screen captures of the other similar images and their pricing, just to have in case.. I highly doubt it will go to court, but one never knows.

[SoylentGreen]

Avoid any apologies or admission of guilt when dealing with matters that might be of a legal nature.
Apologies or admissions may be intended to express "goodwill", however it's really irrelevant.
They've already determined that you're responsible and they just want money.

I'm always concerned that such admissions may close future avenues of success to the alleged infringer, and open new avenues legally to that of the stock image company.
Mistakes do happen, evidence gets lost, and loopholes are sometimes found that exonerate a alleged infringer.
But, once you admit guilt, you may destroy any future hope of this.

It may not seem like a big deal for a 1000 dollars.  But, there are big claims being made in some cases, and it's best to be very careful.

If you decide to settle, it's best to simply offer a settlement, "admitting no guilt or wrongdoing, but offering a settlement to close the matter".

S.G.

[mreams]

SoylentGreen


You do make a good point.  But the fact is they have a screenshot of the image on my site.  So I am guilty, no way around it.  I appreciate your input and might just offer a settlement "admitting no guilt or wrongdoing, but offering a settlement to close the matter". as you suggest with no apology etc.  Then if they deny put my steps above into action.

[SoylentGreen]

It's important to remember that, while they may have a screenshot as "proof" of the alleged infringement, that does not necessarily mean they they own (or own the rights to) the image in question.

A signed statement that essentially says "sorry that I infringed against your copyrighted material", might assume some liability on your part that you may not otherwise have.

Imagine working for a taxi service or trucking company.
Such companies make it quite clear that the driver is not to admit "fault" in the event of an accident, even though the front end of a car may be ripped off.

It's simply for "liability" purposes.  I'd like to see more people be careful with the "apology" thing in legal matters.
But, yes, it's just my opinion.

S.G.

[Mulligan]

I'd like to see just how a blurry PicScout screenshot would hold up in court as proof of anything.

If Getty ever took me to court, I'd want to uncover everything there is to know about PicScout. I'd take great pleasure in throwing some light on that highly questionable and deeply dark operation.

[Matthew Chan]

This has been discussed before so I won't get into a lengthy post. An "apology" is not always an admission of guilt. It depends on the phrasing. In circumstances where you are very likely to be in a losing position on a single point (the screen shot of your web page for example), an apology looks way better than saying "nope that is not my screen shot" and making them "work" for it.

There is a live Hollywood extortion case I am covering where the defendant at around $350/hour is "fighting it every step of the way" and bleeding to death financially on a technicality vs. conceding the point and moving forward to the central allegation.  There is a real possibility he will be broke before the case advances to the next step.

FWIW, Oscar and I have discussed this at length. Unless you are deep-pocketed, sometimes it is best to to concede a minor point and move the case along to a resolution.

Obviously, if they ENTIRELY made a mistake and it is not your website, then offer no apology. But on the rare chance, a case goes to court, you could be called to testify. And if you are caught perjuring (that is criminal offense), you will wish that you only had the infringement case to deal with.

Remember, these letters you write can work for you or against you.  I believe in congruency all the way from written letters to live testimony.  Your credibility is much higher.

I am NOT saying to apologize on everything or absolutely nothing. What I am saying that an apology can actually be a helpful tool if used correctly.  I have used the apology strategy many times in life including in court. Some think it takes power AWAY from you. Many times, it BESTOWS more power to you because it helps defuse a point.   It depends on how it is used.

For example, don't say "I apologize that I am a copyright infringer".  But you might say, "I apologize for the inconvenience this is causing you and your company" or "I apologize that this entire incident and dispute has occurred" or "I apologize that my web designer used your photos without my knowledge and permission."  "I apologize for unknowingly buying a template that had infringing images." (Innocent infringement).

Some examples of using "regret" in a strategic way:
"I regret that you and I cannot seem to agree on this". "I regret that you will not accept my reasonable settlement offer which is based on true market value, not an inflated one." "I regret you will not provide me the information I requested to make an informed decision".

I could use "I apologize" and "I regret" all day long to make the the other guy look bad and concede minor points. 

[SoylentGreen]

Matt, we're in agreement here, I think.

Of course, I'm not implying in any way that people should "fight it every step of the way", and lose out in the end.
I should reiterate that one should not make things "worse" by going straight to implying that oneself is "guilty".
Now, I'm simply saying saying, "don't admit guilt".  I'm not saying deny everything, unless something is in fact untrue.
Many people aren't that articulate, and that's the danger.

I'd also like to say that one should be professional, etc.  But don't appear to be the "softest target out there".
Because such a person will be the first in line if there's a lawsuit.
Not that many lawsuits have historically occurred.

Just my opinion, but I do think that we're on the same page here, even if we word it slightly differently.

S.G.

[Matthew Chan]

Good points made here.  I definitely agree with "Don't be the softest target."  Definitely agree on deny where it absolutely needs to be denied. But don't deny in areas where it makes you look like an idiot.

I most definitely agree that many people aren't that articulate but everyone needs to start learning at some point.

I know people are clamoring for "form letters" to make things easier. I get a bit concerned when people say they will follow my letters as a template. That wasn't the intent and those letters are 4 years old. Although I stand by my letters, the letters I would write today would be far different and a bit shorter given what I know today.

I won't say I won't eventually create some but I am very resistant to it because I think using form letter takes away from the message plus you can't have form letters for every permutation of circumstance.

I would say most of us agree on more points than disagree, otherwise there would more online slugfests. LOL.

Matt, we're in agreement here, I think.

Of course, I'm not implying in any way that people should "fight it every step of the way", and lose out in the end.
I should reiterate that one should not make things "worse" by going straight to implying that oneself is "guilty".
Now, I'm simply saying saying, "don't admit guilt".  I'm not saying deny everything, unless something is in fact untrue.
Many people aren't that articulate, and that's the danger.

I'd also like to say that one should be professional, etc.  But don't appear to be the "softest target out there".
Because such a person will be the first in line if there's a lawsuit.
Not that many lawsuits have historically occurred.

Just my opinion, but I do think that we're on the same page here, even if we word it slightly differently.

S.G.

[Jerry Witt (mcfilms)]

I also think it is a mistake to assume anything. GI may send you a "blurry PicScout screenshot" as proof of their claim. But to assume that they don't have multiple crystal clear shots is a huge mistake. I know if I were pursuing this I would gather as much supporting proof as possible.

I also think it's foolish to assume that the date of their letter is the date of their discovery. I'm certain there is a period of days, if not weeks or months that pass before they send out a notice. To outright lie about this information is just going to make you look like a jerk. You know when you put it up. Of course I'm not saying you should volunteer the exact date you uploaded the image in early conversations.

[Robert Krausankas (BuddhaPi)]

I also think it is a mistake to assume anything. GI may send you a "blurry PicScout screenshot" as proof of their claim. But to assume that they don't have multiple crystal clear shots is a huge mistake. I know if I were pursuing this I would gather as much supporting proof as possible.

I also think it's foolish to assume that the date of their letter is the date of their discovery. I'm certain there is a period of days, if not weeks or months that pass before they send out a notice. To outright lie about this information is just going to make you look like a jerk. You know when you put it up. Of course I'm not saying you should volunteer the exact date you uploaded the image in early conversations.

I'm doing some homework on any patterns as to when Getty and others send out letters, I've been noticing a trend, where the forums seem to get quiet, and then all of a sudden get busy again.. I can't help but think that Getty tends to send out letters on a monthly basis all in one shot. If anywould would like to volunteer when their letters were dated it would help in my research, I f a pattern emerges I'll have a look at how hawaiian art network operates as well..it might just be me, but in talking with Matt recently, we discussed the fact that it's usually quiet right before the storm.. This would lend credibility to the fact that you can't use the date of the letter as date of the infringement discovery.....Poor mail mail must hate to pick up Getty's mail on the dates in questions...if it pans out

[SoylentGreen]

Interesting thoughts, Buddhapi... I'm looking forward to your findings.

Also, the Masterfile/ Arius3d deadline comes up tomorrow...

S.G.

[Matthew Chan]

I've always been a bit uncertain using the letter date as the actual date of discovery myself. I have wondered how long it takes between actual discovery and generation of the letter. But using the letter date is fairly safe since it builds in an unknown amount of "cushion" to their actual discovery date.

I also think it's foolish to assume that the date of their letter is the date of their discovery. I'm certain there is a period of days, if not weeks or months that pass before they send out a notice.

[pea]

Hi, I'm new here, but I think I can contribute to the question about using the date of the letter as date of infringement.  I recently received 'the extortion letter' for a an image that I had used on a paper flyer, which I had pdf'd and posted on my website (side question about that - does that still count as infringement under same rules as an image posted directly on webpage?).  They claim I owe them $875.

My letter is dated March 15, 2012, but I am certain that the image was not up at that time, as I had updated my website and removed it weeks before that.  In fact, after looking back at my calendar, I'm fairly certain that I removed the image the week of February 6th (I should be able to confirm that later).  So, it was potentially 5 weeks before the date of their letter.

Hope that's helpful to your research, and thanks to all of you who have contributed so much time and information!  I was completely in the dark about all of this and totally shocked when I received the letter. 

One last question, does anyone know if images on the Microsoft Office image database can be used without licensing?  They offer them freely for download, but maybe you still can't put them on your website?  Confused...thanks again for the help!

[Peeved]

One last question, does anyone know if images on the Microsoft Office image database can be used without licensing?  They offer them freely for download, but maybe you still can't put them on your website?  Confused...thanks again for the help!

I always thought it was "ok" to use Microsoft images as well until I read the "terms of service".

Here is the website:
http://office.microsoft.com/en-us/images/??lc=en-us

Here is the "TOS" page:
http://www.microsoft.com/about/legal/en/us/IntellectualProperty/Copyright/Default.aspx#EEB


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Am I the only one who is urked by this? You may use them all you want for "personal" use but don't you dare try to decorate your website where you sell stuff to try and put food on the table for your family! Err!