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

[eqszaz]

Masterfile sent me a FedEx letter today.  I began reading your forums for the first time today.  Here is a brief summary of my situation.

I operate a blog with mental health information (I am a clinical psychologist).  The blog contains no advertising revenue and no goods or services are sold on the blog.  The blog links to my website which does list my information for clinical psychology services, but the blog itself does not promote these services.

One of my blog posts contained an image that masterfile claims to own the copyright.  I took the image down upon receiving the letter.

I immediately called the contact person in the letter and explained that I have taken the image down.  I also explained that my blog provides public service information (suicide prevention, mental health information) and is non-commercial and I believe there is a copyright exception for such material.

I asked the contact person to call me so I can discuss the issue further with him.

I have complied with the request to take the image down.  I read about fair use of copyright material and public service announcements and education seem to be legitimate exceptions.

I would appreciate it if anyone could share information on the use of this exception, especially if related to these letters by master file.

Thanks for the helpful information. 

[eqszaz]

I reached Geoffrey Beal of MasterFile today. I explained my rationale that:

1.  Image is no longer on the site
2.  I linked to the image without knowledge that I was infringing.
3.  The blog has no advertising and does not sell goods or services
4.  The posts are educational and public service in nature

His response was that I should pay as this does not constitute fair use because the artist was not credited.

He said MasterFile would settle for 600 (reduced from 1400). This is for a single image I linked to.

I offered 200. I told him this figure was due to the amount courts could reduce judgments to, and also, at the 600 range, I would be able to hire an attorney.

He immediately asked if the lawyer's name was Oscar Michelen. He said MasterFile has pending cases in my state (North Carolina) and hiring Oscar Michelen would only make things worse for me (glad he is looking out for my interests).

He was firm at 600. I took notes on the call and told him I would seek counsel on the issue.

I think I would like to look into hiring Mr. Michelen to help.

Previous posts I have read here suggest to try to fight it if they go higher than 300.00 to settle.

Does hiring Mr. Michelen seem wise in this case, or would it be better to settle for 600?

Thanks for your advice on this.

[Greg Troy (KeepFighting)]

I think you could not do better then hiring Oscar. also if your image was linked and not actually on your site you should be alright as the courts have ruled that linking in image is not infringement. lookup perfect 10 v. google

[eqszaz]

A very upset Mr. Beal called me a few minutes ago. I was wondering to what extent he would threaten me.  The call went like this:

"I made you an offer earlier today. You posted personal communications with me on the extortion letter blog.  I rescind the offer and I am going to turn this matter over to our NC State attorney who will take it up with you."

At this point, he abruptly hung up. Interesting that in his own words, he is responding to me based on the websites I view and make posts on.

I actually told Mr. Beal in our original phone conversation that I would seek counsel before agreeing to any settlement. I have difficulty understanding what would cause him to believe that our conversation was in some way private when I had not agreed to keep any of it private, nor had he asked me to.

Based on this, I plan to hire legal representation on my behalf.

What legitimate business would oppose consumers being informed and educated of appropriate industry legal & ethical standards and pricing structure?  The ironic aspect is that if I had learned from credible sources that Mr. Beals' proposal were fair and ethical, I would have paid it without being forced to.

Now I am left with first hand evidence that leads me to believe that Mr. Beals' approach is to keep the consumer uninformed and force payment out of a position of lack of information and vulnerability.

[lucia]

How would hiring Oscar make things worse for you?

Out of curiosity: Did you host the image on your server? Or just hotlink. If you only hotlinked... you have the unique opportunity to jerk this guy around. (Hotlinked means the image was on some other server you don't control but you inserted a link to that server. It's done all the time, especially at blogs.)

[lucia]

Oh... btw.  Answer about hotlinking privately. Really... I'll pm you.

[Robert Krausankas (BuddhaPi)]

LOl it's really too bad that that douchebag Geoffrey Beal got his panties in a wad, he doesn't like ELI very much, and I suspect he doesn't care for Oscar much either considering Oscar gave it to him the hard way in Federal Court... I see he likes to visit ELI on a regular basis, to bad he doesn't have the ball to post here...

I'm sure he doesn't like me calling him a douchebag either, but I'm entitled to my opinion, you'd think he would be smart enough to realize that some people won't simply drop their drawers and bend over for him.. Every new person that comes to ELI effects his income, maybe if he acted ethical and honestly he wouldn't find himself getting bashed on a regular basis, but it seems the money is more important to him.

[eqszaz]

Thanks for the support, Lucia and Robert.  I PM'd both of you.

I followed the instructions for sending my scanned information to Mr. Michelen.  I hope I will be able to hire Mr. Michelen.  I will wait to post specific information until I hear more about my case (don't want to hurt my case in some way).

Once I learn more, I'll make sure I share details of what I learn and how things turn out.  It helped me to read about others' experience with this.

[Robert Krausankas (BuddhaPi)]

I woke up feeling rather generous this morning, hence there is a new post over @ http://copyright-trolls.com/site/ just for asshat Geoffrey Beal...he can thank me later...now to go feed it to the twittersphere..

[Robert Krausankas (BuddhaPi)]

As suspected Geoffrey Beal continue to blow smoke out his ass, a casual search of PACER shows ZERO pending cases in North Carolina, they may have sent letter to those residing there, but thats a little different than actually filing suit... I guess his parents never taught him about being honest.

[eqszaz]

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."

[Robert Krausankas (BuddhaPi)]

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

[Peeved]

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".

[lucia]

If you hotlinked, you have no worries!! You're done.  See
http://caselaw.findlaw.com/us-9th-circuit/1327768.html

There have been no supreme court rulings. But this is the 9th circuit, one level below the US supreme court. (There is a 2nd relevant ruling in another circuit. Pretty much in the same direction.)

This is the display right discussion in the case

Perfect 10 Google Amazon.

A. Display Right

In considering whether Perfect 10 made a prima facie case of violation of its display right, the district court reasoned that a computer owner that stores an image as electronic information and serves that electronic information directly to the user (“i.e., physically sending ones and zeroes over the {I}nternet to the user's browser,” Perfect 10, 416 F.Supp.2d at 839) is displaying the electronic information in violation of a copyright holder's exclusive display right.  Id. at 843-45;  see 17 U.S.C. § 106(5).   Conversely, the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information.  Perfect 10, 416 F.Supp.2d at 843-45.   The district court referred to this test as the “server test.”  Id. at 838-39.

Applying the server test, the district court concluded that Perfect 10 was likely to succeed in its claim that Google's thumbnails constituted direct infringement but was unlikely to succeed in its claim that Google's in-line linking to full-size infringing images constituted a direct infringement.  Id. at 843-45.   As explained below, because this analysis comports with the language of the Copyright Act, we agree with the district court's resolution of both these issues.

We have not previously addressed the question when a computer displays a copyrighted work for purposes of section 106(5).  Section 106(5) states that a copyright owner has the exclusive right “to display the copyrighted work publicly.”   The Copyright Act explains that “display” means “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process․” 17 U.S.C. § 101.  Section 101 defines “copies” as “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Id. Finally, the Copyright Act provides that “[a] work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”   Id.

 We must now apply these definitions to the facts of this case.   A photographic image is a work that is “ ‘fixed’ in a tangible medium of expression,” for purposes of the Copyright Act, when embodied (i.e., stored) in a computer's server (or hard disk, or other storage device).   The image stored in the computer is the “copy” of the work for purposes of copyright law.   See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 517-18 (9th Cir.1993) (a computer makes a “copy” of a software program when it transfers the program from a third party's computer (or other storage device) into its own memory, because the copy of the program recorded in the computer is “fixed” in a manner that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration” (quoting 17 U.S.C. § 101)).   The computer owner shows a copy “by means of a ․ device or process” when the owner uses the computer to fill the computer screen with the photographic image stored on that computer, or by communicating the stored image electronically to another person's computer.  17 U.S.C. § 101.   In sum, based on the plain language of the statute, a person displays a photographic image by using a computer to fill a computer screen with a copy of the photographic image fixed in the computer's memory.   There is no dispute that Google's computers store thumbnail versions of Perfect 10's copyrighted images and communicate copies of those thumbnails to Google's users.6  Therefore, Perfect 10 has made a prima facie case that Google's communication of its stored thumbnail images directly infringes Perfect 10's display right.

 Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects ․ in which a work is fixed ․ and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy.  17 U.S.C. § 101.

So, at least the ninth circuit thinks it "matters" whether you have stored the image on your server. And this is true no matter what Pinterest might have to say on it's web page.

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."

He's just wrong. Wrong. Laughably wrong.

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."

It's not at all clear how Pinterest's Terms of Service could possibly affect your case. But it might have been fun if he gave you a link so we could laugh at precisely what language written by Pinterest he thinks affects your display!

[Peeved]

It's not at all clear how Pinterest's Terms of Service could possibly affect your case. But it might have been fun if he gave you a link so we could laugh at precisely what language written by Pinterest he thinks affects your display!

Was thinking the same....WTF???