8-16-2013 -- MasterFile -- Fair use?

[Greg Troy (KeepFighting)]

ROTFLMAO!

Another thing he told me during our conversation:

Beal: "It does not matter if you link to an image and don't host it.  If it is displayed on your website, you are liable for it."

Me:  "The site is a blog, not a static website.  I did not download the image on my hosting provider's servers."

Beal: "It doesn't matter.  Have you ever heard of pinterest.com?  Look there and you will see they promise penalties there if you link to copyrighted material."

Another complete bullshit statement from Geoffrey Beal! Yo Geoffrey maybe you should read up on perfect10 v google, where it was decided that linking to images is not considered an infringement... take your head out of your ass!!! if this were infringement Masterfail and Getty would be suing google on a daily basis for linking to images...
One thing that Geoffrey Beal is very well versed in is making himself look like a total a-hole....now onto the pinterest statement.. Their TOS are written and designed to absolve them (Pinterest) from any copyright liability issues, if users choose to pin items they themselves are on the hook for the infringement not pinterest.

It amazes me how far these trolls like Geoffrey Beal will go to extract moneys from unsuspecting and uneducated victims...and how rude and unprofessional they become when someone asks questions or seeks outside help..

::EDIT:: Compelled to add this:

http://www.rottenecards.com/ecards/Rottenecards_61765672_q5vphw7s3x.png

[Robert Krausankas (BuddhaPi)]

Hi Geoffrey...

[fighting_masterfile]

His Mother never taught him to be honest. 

[lucia]

Just one more on the Pinterest thing....

TOS link...
http://about.pinterest.com/copyright/

Highlights:
"Pinterest will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site. DMCA Notice of Alleged Infringement ("Notice").

"I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."

Now...if one uploaded an image on Pinterest and linked it back to ones personal or commercial website, I would think that this would NOT be considered "fair use".

I think if you uploaded it to your a Pinterest account that you control and then displayed a hotlink to that image you your Pinterest account at your blog, Masterfile might very well have a case against you. Because in this case, your Pinterest account is, for all practical purposes "your server" and you copied it to that server.  So, in this case, you are for all practical purposes "hosting" the image. After all: you can delete it.

The fact that Pinterest doesn't charge you for the account is likely not relevant.  So, in this case Perfect v. Amazon might not cover you. (I suspect it would not. But Masterfile still has to go to court and explain the distinction. But the way I see this, in this case you did make a copy-- to your Pinterest account. And you are displaying that copy-- both at Pinterest and at your blog. )

But if someone else uploaded it to their Pinterest account which you have nothing to do with and you hotlinked the image they hosted, Perfect v. Amazon covers you. Masterfile can sue the person who uploaded the image to their Pinterest account and potentially win. But they won't prevail against all the people who hotlink.

As for Pinterest: All their TOS says is that
(a) If Masterfile sends them a take down notice, they will take down.
(b) If you repeatedly upload stuff that gets sent take down notices, they will ban you etc.
(c) If you upload copyrighted stuff, the same people who can send take down notices might sue you. That would be their choice. This simply a statement of fact. DMAC does protect Pinterest but not necessarily the individuals who upload. 

But unless the masterfile chase here involves someone uploading stuff to Pinterest and then displaying that at their blog, the whole Pinterest thing is just a red herring.

[Peeved]

Just want to clarify what "uploading" means with regard to Pinterest...

"Uploading" usually means entering a "link" from which the image is located (usually from the net via search engines) and then posting that image from that link to a specific board. Now I am no expert here nor am I a Pinterest expert, but I'm thinking that this type of "upload" is still "hot-linking".

Now if one were to "copy" an image and put it on ones "own server" or "hosting service" and from THERE upload that image and link to Pinterest, that would be a big "no no".

Still best to use CAUTION when you don't know where the image originates with regard to copyrights.

Just my thoughts...

[Robert Krausankas (BuddhaPi)]

couple of items.. I believe Lucia meant to refer to perfect10 v google, not Amazon and in regards to Pinterest and Peeveds' comments.. When you "upload" something to Pinterest and enter a URL from which to get the image, an actual "copy" of that images is created, hence the whole shitstorm that has ensued over Pinterest..The image is actually copied and stored on Pinterest servers..so the scenario would be something like this

1. you come upon my site, like one of my images, and decide to pin it ( because it's totally awesome!)
2. you go ahead in pin it from the URL, pinterest grabs it and copies it for you in YOUR account
3.  Lucia comes along, and thinks the image is equally as awesome ( and it is!) and repins it...
4. Pinterest now does not make another copy, but simply links to it from your board.

So technically there is a "COPY", Pinterest clearly states that it's the user or "pinner" that holds the responsibility , and to boot King douche bag Jonathan Klien pretty much stated on video, then when pinterest starts showing a profit the lawsuits will come.

And it gets more complicated for photographers that are trying to protect their work ( I must admit it is sometimes difficult living on both sides of the fence in terms of the copyright issue.)

It was brought to my attention that one of my images was pinned on Pinterest, no big deal but I did get curious, turns out it was seen on 500px.com and a user pinned it.. Also turns out that 500px TOS states that the "pin button" cannot be removed and that users agree to allow their images to be pinned.. I'm sure this does not sit well with those photog that are hell bent on protecting their works, and trust me most of the images on 500px.com are not your typical stock images of tree with fluffy clouds, they are for the most part good images.. Hell most users probably never even read the TOS..for me it's not that big of an issue, because my images really aren't that super awesome, and I have a moral compass and would not sue someone for some insane amount..

[Greg Troy (KeepFighting)]

Actually Perfect 10 sued Google and Amazon so Robert and Lucia are both correct.

This is a good discussion, lots to think about.

[Peeved]

Glad to have Robert clarify.

Right now Pinterest is just a "sharing what you love" site and the bottom line is as Robert stated:

So technically there is a "COPY", Pinterest clearly states that it's the user or "pinner" that holds the responsibility, and to boot King douche bag Jonathan Klien pretty much stated on video, that when pinterest starts showing a profit the lawsuits will come.

[Robert Krausankas (BuddhaPi)]

Glad to have Robert clarify.

Right now Pinterest is just a "sharing what you love" site and the bottom line is as Robert stated:

So technically there is a "COPY", Pinterest clearly states that it's the user or "pinner" that holds the responsibility, and to boot King douche bag Jonathan Klien pretty much stated on video, that when pinterest starts showing a profit the lawsuits will come.

sharing what you love is one thing, but what  is going to happens to all those companies incorporating Pinterest into their social media marketing?? They're gonna find themselves on the hook someday, and it woldn't surprise me if the likes of getty / Masterfile didn't wait / monitor company boards until they had literally dozens of pinned ( infringing) images, and then swoop in for a large settlement. We can call them dumb asshats all day long, but that doesn't mean they are clever..

[lucia]

couple of items.. I believe Lucia meant to refer to perfect10 v google, not Amazon and in regards to Pinterest and Peeveds' comments..

Perplexingly, both,
http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Google_Inc.
http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc.

So technically there is a "COPY", Pinterest clearly states that it's the user or "pinner" that holds the responsibility , and to boot King douche bag Jonathan Klien pretty much stated on video, then when pinterest starts showing a profit the lawsuits will come.

Mind you, it's Pinterest's theory that they aren't the ones copying even though their servers do fetch the image at the 'pinners' behest.   I"m not a copyright attorney, but I bet Oscar would suggest Pinterests theory has not been tested in court.   This is not quite the same as a pinner downloading to their pc and then uploading to pinterest. Pinterest's hardware actually makes the copy, and I'm not sure the pinners all understand quite what's going on. (Some will; some won't.)

Hell most users probably never even read the TOS..for me it's not that big of an issue, because my images really aren't that super awesome, and I have a moral compass and would not sue someone for some insane amount..

Oddly, my thought is that 'justice' would deem Pinterest liable before it would deem the 'pinner' liable.  But I don't know what courts would do.

[lucia]

BTW: I should add that Pinterest and pinner's liability in copying wouldn't be 'on or the other but not both'.  It could be that both are liable.

[Robert Krausankas (BuddhaPi)]

BTW: I should add that Pinterest and pinner's liability in copying wouldn't be 'on or the other but not both'.  It could be that both are liable.

I'd have to go back and look, but I'm fairly sure when Pinterest rewrote / changed their TOS, they made sure any liability fell solely on the user/pinner.

[lucia]

Robert,
Yes. That's what Pinterests TOS says. But that doesn't affect copyright law itself and doesn't affect what a Federal judge might rule in copyright court. .

I think that the question about whether Pinterest would be violating copyright law when Pinterest's servers are running the code that fetches the image and stores it on Pinterest servers has not been adjudcated in copyright courts.  I also don't think Pinterest's TOS is binding on a federal judge enforcing copyright law.   Yes. Pinterest's TOS claims any violation is purely that of the pinner.  As things stand, as far as I can tell,  all Pinterests TOS really means is that if a copyright holder sues in copyright court, Pinterest will argue that Pinterest is not the one copying.

But the truth is-- no matter what Pinterest says in it's TOS-- a judge might not buy that argument. As far as I am aware, there is no precedent suggesting any judge would accept Pinterest's claim that the copying is done by the pinner and the pinner only.  Given the facts as they stand in a suite, a judge might very well decide that Pinterest is copying the image.  And it will be the judges interpretation-- not Pinterest's-- that matters. If the judge agrees with Pinterest, Pinterest will be happy. If not.. not!

[Oscar Michelen]

I don't think Pinterest TOS would matter all that much other than to perhaps allows Pinterest to sue the pinner for indemnification and reimbursement. But I also think that MF or Getty won't take on Pinterest for fear of going up against a large company and a large law firm that will reveal the emperor has no clothes. Do you think its a coincidence that we have not heard of Getty going after a big fish? History also has proven that these cases and issue are won when the troll goes after somebody who has enough money to fight and demand proof. Look at Imageline (and George Riddick) who terrorized companies for years with troll lawsuits over clip art. He got too big for his britches and went after Bernina.  They counter-sued, proved the falsity of his claims and essentially bankrupted him and put him out of business. The "compilation registration issues" only were decided because a photographer named Bean (not Getty) sued Houghton Mifflin, the publishing giant.  Alaska Stock made the same mistake. Masterfile sued none of my clients and then pushed the envelope by claiming my client Chaga International re-infringed after settling because the images involved were still allegedly left of dead pages of their website. Chaga decided to stand up and spend the money necessary to defend the case. So its not likely that Getty or MF will take on Pinterest directly. They may try to make a backroom deal with them that we will never hear about but they won't sue them. To get back to the original poster, I am not sure your use would be fair use just because it is non-commercial and educational.  The use of the image is to decorate your website. You are not teaching the art of photography or even discussing what's shown in the image. It's all moot because of the "hotlink" issue and MF's reluctance to sue.     

[eqszaz]

I received a copy of the defense letter today, and approved it.  Thank you, Mr. Michelen. 

The humorous issue with this thread (if you read the earlier posts) is the fact that I never used Pinterest to hotlink the image (it was hotlinked elsewhere).

When I explained to Mr. Beal that I never downloaded the image, but merely used a link, he told me it didn't matter and referred to Pinterest as an example, as if Pinterest TOS would apply to the internet as a whole.

My experience with the issue has been consistent with what has been posted on these forums so far:

1)  I received a threatening letter from MasterFile.
2)  I called and spoke with the contact person (as instructed in the letter).
3)  The contact person, Mr. Beal, was single focused.  Pay!  He attempted to be mildly polite when I first called him (at least he wasn't interrupting or calling me names).
4)  When he learned I was consulting this website -- his tactic changed.  He called me and interrupted me and abruptly hung up after telling me he was escalating the issue to his North Carolina (my state) lawyers.

From what has been said in this thread, Mr. Beal provided me with false information (hotlinked images are the same liability as downloaded images) when he was still in the mood to discuss the issue.

If I had it to do over again, I would not have called.  I would have sent one letter and then if I received a negative response (which I am certain I would have), I would hire Mr. Michelen (which I have now done).

My understanding is that from now on, I will simply refer any agents of MasterFile to Mr. Michelen if they try to contact me about this issue.