ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: dieselfish on January 07, 2012, 06:35:36 AM
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Matthew, Oscar, Buddhapi, SoylentGreen, and ELI community - thank you so much for your dedication and efforts. I am currently at the wrong end of a Masterfile extortion letter and have learned a great deal from the wealth of information available here on ELI. I am now into my third letter in correspondence with Masterfile and thought that I would share my story with you all thus far.
I am a part time graphic designer. I recently donated website design services to a friend who has just started an LLC devoted to helping autistic children. My normal procedure as a designer (which I now realize is antiquated and needs to change), is to grab images using a Google search to use for composition purposes during the website development process. After discussing the images with the client, we then either compose and photograph similar images ourselves or purchase rights for images from royalty free shops. In this case, one of my composition images got away from me and Masterfile sent a demand letter to my friend’s LLC. I felt really bad about putting her in this situation with Masterfile so am negotiating with Masterfile on her behalf.
I would love to post the letter exchange in it’s entirety here for you all to read, but I’m afraid it would be too long. I’ll summarize the details here - for brevity I refer to myself (the designer) and the LLC (the recipient of the demand letter) as “we”.
- A single image appeared on our website as shown by a Masterfile screenshot on November 21, 2011. We immediately removed the image in question upon receiving word from Masterfile on December 15, 2011 (25 days). This is all that Masterfile can prove in terms of how long the image appeared on our site. The site is too new and hasn’t even been indexed by most search engines yet. I kick myself for admitting that we took it down on December 15 as in actuality, Mastefile can only prove that it was on our site for a single day.
- We have Google Analytics statistics showing that the page containing the image in question was only viewed by less than 20 unique visitors - and most of the visiting IP addresses are either me, or associates and employees of the LLC. This, along with the short length of time that the image was on our site, would make it very difficult, I believe, for Masterfile to prove any damages or loss of value to their image.
- The image in question is a “rights managed” image for which Masterfile charges based upon time used and audience scope. The minimum that Masterfile would charge for this particular image is $390 US. This is for one (1) month’s use of the image! We can show that when all tolled we will spend $300 US for development, hosting, and royalty free stock images... for three (3) YEARS of running this website. Included in this is $75 US we spent on “royalty free” stock images (from a different company). Clearly, we were not in the market to use a “rights managed” image from Masterfile.
- Masterfile has provided a copy of their approved copyright application dated September 26, 2006. The copyright is for a large compilation of images. They have not sufficiently proven that the image in question is, in fact, in the copyrighted compilation. They also have not provided any proof that the original artist was or is still in contractual agreement with Masterfile. I assume that they can provide all of this information - but have let them know that I need to see it.
- Masterfile originally demanded $2310.00 US in “retroactive licensing fees” for the “unauthorized use of [their allegedly] copyrighted image”. I stated our case and offered them $100 US. They rejected and came down to $600 US. I reiterated the fact that they are going to have a very difficult time proving that any loss of value to their image took place and offered them $150 US. They rejected and have now come down to $500 US.
This third letter in the correspondence from Masterfile clearly takes a different tone from those previous. It has become clear that the “Copyright Compliance Officer” is simply “copying and pasting” verbiage from other Masterfile letters and not really reading our responses at all. Some of what he writes doesn't even make sense in this claim. The tone of this “final” letter has become belligerent and threatening (completely unwarranted by the way). This new “bullying” tone and the fact that they aren’t even taking the time to proof read their letters indicates that they are not willing to settle “amicably” (as they state).
I have drafted a response to their “final” letter and am prepared to offer them $200 US - simply out of respect for the artist’s rights in this situation. Clearly, we were not in the market to use one of their “rights managed” images. We have found comparable images on other stock image sites - and paid $75 for three “royalty free” images. $200 would be 4 times what would pay for a “royalty free” image, represent two-thirds of the entire cost of our website (for 3 years), and 50% of what they would charge for 1 month’s use of their allegedly copyrighted image.
So, I feel we have a pretty strong case and have tried to be reasonable with Masterfile in their claim. But the thought of getting into a legal battle is surely intimidating. And so is the thought of paying $500.00 to Masterfile for this - it burns me just thinking about it! I’d love to hear the community’s thoughts on this. Is $200 fair? Is $500 fair? Should Masterfile pound sand? Thanks!
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It would be much more helpful if you allowed us to post the letters to get a better reading of the situation in the proper context. We will, of course, redact your name. Feel free to email it to [email protected].
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This is a question only you can answer. I'm sure most everyone here would think paying $200 for one month's use of an image is more than fair. 'Course Masterfile will probably not agree.
Honestly, looking at what's "fair" is probably not the best way to look at it. Perhaps a better way to look at it is how willing Masterfile is to sue a start-up company that is in the business of helping autistic children. Balance this with how willing you are to fight with them and take the risk that you (or your client) will get dragged into court over this.
It is my personal opinion that MF will not accept your $200. However I think it is highly unlikely that they would file suit over this. This is especially true if they knew you were extremely vocal and there were likely to be collateral consequences. A blog headline that reads "Masterfile sues Autistic Children's Group Over Misplaced Image" cannot be good for business.
One last thing. You should check the MF terms. I was under the impression that you were allowed to use their images for layout and "FPO" use, but I may be mistaken.
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Dieselfish (DSF) has submitted the cleanest copy of the Masterfile Settlement Demand Letter I have seen. Additionally, he has done a great job engaging Masterfile thus far.
DSF granted me permission to upload his redacted copies of his correspondence with Masterfile.
http://www.scribd.com/my_document_collections/3425315
Warning: there is a lot to read and dissect here. However, I am confident that the ELI community will have many insights.
My first question is: who is Geoffrey Beal? Is this some low, first-level Masterfile employee or is this someone higher up in the Masterfile food chain? What is this guy's background and who does he report to?
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Mr Beal is not listed on the "Executive Team" page on MF site, so it's probably safe to assume that he works under Dan Pollack, who is the "General Counsel" and heads up MF's Copyright Compliance Dept., I did see Mr. Geoffrey Beal's mentioned in an article pertaining to Righthaven of all things, but it was just a passing comment, that Beal and Getty Images should be added to the list of "bullies" along with Righthaven..
Kudo's to Dieselsfish for drafting an excellent response, well thought out and presented, thanx for sharing with us and the community, as it certainly helps the cause!
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I was thinking the same thing regarding the EXCELLENT responses to the demand letter!
Again, this registration number is a "group" registration and the questions were excellent regarding whether or not the image in question is protected under copyright for this type of registration. Masterfile claims to have the "exclusive rights" on this one which I found interesting.
Although personally I would not tell MF to "pound sand" as the recipient asked but I would definitely keep fighting!
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Thanks all - for taking the time to read my letters to MF and for all of the time you put in here at ELI. I hope that my story can help others in similar situations.
@mcfilms - good thought on "FPO" use (for composition purposes), I looked in to that earlier. MF states that images can be used for composition purposes, with "previous written consent" and as long as the image is in low resolution and contains the MF logo superimposed. As I didn't take the image directly from MF and didn't know that MF claimed rights to it... unfortunately, not much to stand on here. And as for tugging at the heart strings and publicizing the fact that they are going after a new business whose purpose is helping autistic children - I'm not sure that MF really cares about their image at this point. Clearly, they weren't concerned about the David vs. Goliath image in going after Country Cycling. They may think about it when considering to sue, but in terms of negotiating a settlement - probably not. I think small LLCs are their bread and butter target.
My thought at this point is to offer either $315 US based on a per diem usage or $390 which would be their full "up to 1 month" fee for a "rights managed" image. Remember that the image allegedly appeared on our site for 25 days. MF charges $390 for use of "up to 1 month". $390 / 31 days = $12.58 per day | 25 days * $12.58 = $314.50. This is about as reasonable as I can stomach in this situation. $500 just doesn't seem fair to me, and I would lose all faith in our system of law if the courts found it to be so!
A few related questions for the forum...
- How strictly do the time limits imposed in the demand letters hold up? The last letter from MF demands that we respond by January 12 or their offer gets rescinded and the matter gets escalated. This seems to me to be another bullying tactic, preying on the already frazzled psyche of the letter recipient. Is it reasonable to respond back stating that we need more time to consider their offer? It would be nice to slow this thing down a little bit - I feel like my entire life over the last month has been dedicated to this issue.
- I'm not convinced that this guy, Mr. Beal, is a decision maker. His letters are clearly quick "cut and paste" responses. I don't think he is really taking the time to even read my letters. What happens next? Does the correspondence get sent up the chain to someone with a little more knowledge/authority? Or if we refuse their offer do we get sent right to the collection agency and then get sued once we deal with the collection agency? It doesn't seem like they are really trying to negotiate or listening to my arguments.
I wish that I had the financial backing to see this thing through. Unfortunately, I don't, and I feel like I'm right were MF wants me to be - smack dab in the middle of, "should I just pay the $500 because legal fees would be much more than that"!
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If I were in your shoes, I would respond 1 day before the dealine, ask some more questions and drag the deadline out, as MCFilms has pointed out, there is nothing wrong with asking questions, the more questions you ask the more time they have to invest to keep answering. I would bring up the registration again, and ask them to show proof that this image is actually in that group. It probably is as MF is known to be organized in terms of registrations..
As far as collections go, legally they cannot send it to collections, this is a "claim" not an invoice, if they do send it to collections, you can contact the collection agency in writing and refute the "claim", and they will send it back to MF. There is a thread here in regards to this:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/fair-debt-collection-practices-act-(eli-highlights)/
IMHO the deadlines are mere scare tactics, something else to consider is whether they would actually file suit over 1 image, chances are pretty slim I would think.
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Just a few quick comments here.
The "deadlines" are mainly intended to give a sense of urgency, so that people will make knee-jerk decisions, and pay more money sooner.
Last time I checked, MF hadn't sued since Aug, 2011 when it started negotiations with Arius for a buyout.
So, that should delay lawsuits further in the short-term.
Additionally, that also means that there's surely a backlog of infringements much more egregious than what were discussing here.
In any case, the time between when "negotiations fail" and a lawsuit filing is usually several months.
The "cut and paste" responses that the alleged infringer has been receiving probably indicates that his/her file is of very low priority.
If you decide to settle, shoot fairly low at first. Then, see what they say.
Of course, I'd prefer if you didn't settle...
S.G.
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My suggestion is that this would be bad publicity if it DID go to court. I'm not interested in settlement discussions. I think people start trying to "meet them half way" too quickly.
In the unlikely event that this did go to court, part of the discovery process would be to figure out how many licenses they have sold for $390 for one month. How many do you suppose that is. I am thinking zee-row.
By the way tineye shows one and only version of that image (on the MF site). You don't need to post it here, but how did you come across this image? If the watermark was removed by you, well... you're gonna have to pay them. If it was out in "the wild" unwatermarked, then I wonder how prevalent it is.
So you are already within $185 of what they want? Last I heard you were willing to pay $200, now it's $315. Well I guess if you keep dickering over the price and asking for more paperwork, that helps our cause a bit.
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Oh I see... the image was cropped.
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Interesting update... Mr. Beal just called my client to notify us that by posting "confidential information" on the ELI site that we are infringing on copyright and confidentiality because he placed a message at the end of their emails... "WARNING: This e-mail message is intended only for the named recipient(s) above and may contain information that is privileged, confidential, subject to copyright and/or exempt from disclosure under applicable law. You are hereby notified that any unauthorized use of this transmission is strictly prohibited. If you are not the named recipient(s), please immediately notify the sender and delete this e-mail message." It's been my experience that these warnings are useless in court. I asked Mr. Beal to refrain from contacting my client by phone - he has already wasted enough of their time.
Though now that I think about it... all of the case information has been redacted. How can he be certain that the letters are actually my client's posting? How would he know to call my client?
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They really don't like being brought out into public...
a. You did not sign a confidentiality agreement.
b. Is one to assume because of that little disclaimer, you are prevented from sharing it with legal counsel??? I think not.
c. You were the intended recipient of the message, what you do with , is your decision ( see point a above )
d. I do not believe business communications are covered by copyright
e. He's "assuming" this is your case nothing more, as you stated it was all redacted.
At this point don't be surprised if they try to cut you out of the loop, as you are being a thorn in their side. They may decide to deal directly with your clilent.
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not to mention, that the little blurb only appears on the last "Registered" email, as if that means anything being "registered"
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Their claim of Copyright protection is laughable to me. A business may be able to claim copyright of business correspondence in the US. But, I have not seen it tested here yet. (It does seem to be the case in the UK.) But more relevant is that publishing the redacted version of this letter on a site that is designed to discuss these types of letters, falls so squarely under "fair use" that it almost fits the very definition. This letter is not published to make a profit or steal content. It is published for informational and educational purposes on a site designed to inform and educate about this process. That a law firm wouldn't understand this seems very odd to me. Perhaps they want the EFF to get wind of this.
As buddhapi indicated, their move now is going to be to cut you out of the loop and concentrate on squeezing your client. Their goal is to try and embarrass you into paying up. That and maybe irritate your client enough so that they may want to just settle.
Depending on your relationship with the client, you can ask them to refer all contact regarding this issue to you. But I'm not sure how that would go. I think MF will still focus on pestering your client.
The only way to completely stop it that I know of would be to get a lawyer to represent you. Then all correspondence has to be directed to that lawyer.
But as I mentioned last night, you are so close to where they want you at this point, I imagine they are betting they can tip you over with this latest email. However I am very glad you decided to share this news here.
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Thank again all! Soon after the telephone conversation with Geoffrey Beal of Masterfile he sent another "registered" email to my client. I sent it to Matthew to have him post it as well. I'm not sure if the above Scribd link that Matthew posted will update, or if Matthew will have to supply a new link. Basically Mr. Beal didn't say anything in writing - just asked that my client contact him regarding our postings on an "Extortion Letter site".
@mcfilms The image was originally taken from a google search. I found several websites using the same image - none of which displayed any copyright information. In fact, I have screenshots and URLs of the sites containing the images. Looking at the image on the Masterfile site - that watermark would have been very difficult to remove with Photoshop or crop out. And, they may think that they have us at our tipping point... but they have just fueled the fire as far as I am concerned.
@buddhapi I had read Matthew's FDCP Act previously - so I'm not worried about the collection agency. My question was whether anyone had any previous experience post demand letter settlement attempts. I would rather my client have a chance at a fair negotiation with someone other than this Geoffrey Beal who is clearly not taking the time to read our letters, research the claim, or attempt to "amicably" settle the claim as he so states. Also, it is going to be very hard for them to cut me out of the loop on this. I won't disclose why here because it is apparent the Mr. Geoffrey Beal of Mastefile is also reading this post - but they won't be able to cut me out.
In further studying the "cut and paste" issue I found out that Geofrey Beal of Masterfile even referenced an incorrect claim number! I don't even know what Masterfile's original claim number is any more because Mr. Beal has "cut and pasted" so many different numbers!
I thank you all for your support and comments thus far - you've really given me a boost. I hope that my sharing with you will help others out as well.
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This is a cryptic email by Geoffrey Beal of Masterfile to DieselFish. I think this has to do with Geoffrey being unhappy with his emails being plastered for all to see.
His superiors get to see how embarrassingly bad of a job with some of his cut-and-paste replies.
http://www.scribd.com/doc/77671811/Masterfile-Email-to-Dieselfish-Regarding-ELI
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Okay that letter makes no sense to me. Unless it was a way to say "I know that you are posting on the ELI site." Well, yeah! So? Since Mr. Beal is already on the site, I would hope that he would join and engage in a dialog here.
I'm so glad to hear that dieselfish is nowhere near "tipping." If one were to objectively look at the scenario, the best solution would be to re-consider dieselfish's $150 offer. Already a search for "Geoffrey Beal masterfile" turns up nearly a full page of information about this issue and points here. Trying to "force" removal of these threads has not worked out for other attorneys (See the Julie Stewart threads).
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Already a search for "Geoffrey Beal masterfile" turns up nearly a full page of information about this issue and points here. Trying to "force" removal of these threads has not worked out for other attorneys (See the Julie Stewart threads).
yes and it's hampering my efforts! ::)
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I keep re-reading the third letter from Geoffrey Beal of Masterfile. I find it interesting that he threatens that Masterfile "may elect to receive actual damages instead of statutory damages". Wouldn't it be harder for them to prove actual damages in this case given the limited alleged use of the image? Remember the website was under soft launch and only had about 20 unique page views (most of which are limited to myself and the client).
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Good point DF, they'd probably get less if anything! Apparently they are to the point of not even thinking thru the scare tactics.
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Actual damages is very hard to prove and with such low traffic stats, it will be interesting to see what kind of so-called argument they could make.
As I said, you have clerks drinking the Kool-aid pretending they have actually been in court. I have been in court many times and I would put my experience and ability to argue a case in front of one these hourly collection clerks any day. They may talk legal but they have no authority or license to do anything.
Every letter recipient has the power to defend themselves "pro se" which requires nearly no money to do so.
I keep re-reading the third letter from Geoffrey Beal of Masterfile. I find it interesting that he threatens that Masterfile "may elect to receive actual damages instead of statutory damages". Wouldn't it be harder for them to prove actual damages in this case given the limited alleged use of the image? Remember the website was under soft launch and only had about 20 unique page views (most of which are limited to myself and the client).
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@buddhapi I agree about Masterfile and Geoffrey Beal not thinking through their scare tactics. Which makes me wonder about scare tactics in general. They go out of their way to state that they are attempting an "amicable" negotiation in all of their correspondence. Yet, doesn't charging a ridiculous, unfounded amount of money, threatening, demanding, and placing time limits on response effectively close any attempt at being "amicable". Is there a legal definition of the word "amicable" that I am not aware of?
I am also curious about Masterfile's use of the term "without prejudice" in all of their correspondence. Clearly, this is an attempt to hide behind a legal definition. But it doesn't seem to make sense to me. As I see it "prejudice" is a preconceived opinion not based on reason or experience. By claiming that their correspondence is "without prejudice" they are claiming that they are basing their preconceived opinion on fact. Yet the facts in the claim were never established, nor were they even acknowledged when presented to Geoffrey Beal of Masterfile. Clearly Geoffrey Beal and Masterfile undertook some form of prejudice as they sent an invoice, demands, and threats along with their correspondence.
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The "without prejudice" thing probably came about when somebody used something an MF employee said as a defense.
The problem is that only a judge can can deem his/her decision "without prejudice".
Such a term has no meaning outside of a court decision.
In some cases, this concept might not help anyway.
For example, if an MF employee admitted that MF didn't register an image in the US, the defendant might not be able use the actual written statement from the MF employee.
But, that wouldn't change the material fact that the image isn't registed, which would be revealed during the discovery phase.
S.G.
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The term "without prejudice" is also used in the course of negotiations to indicate that a particular conversation or letter cannot be tendered as evidence in court; it can be considered a form of privilege. This usage flows from the primary meaning: concessions and representations made for purpose of settlement are simply being mooted for that purpose, and are not meant to actually concede those points in litigation.
Such correspondences must both be made in the course of negotiations and a genuine attempt to settle a dispute between the parties. A prohibition exists on documents marked "without prejudice" being used as a façade to conceal facts or evidence from the court. As a result, documents marked "without prejudice" that do not actually contain any offer of settlement may be used as evidence, should the matter proceed to court. Courts may also decide to exclude from evidence communications not marked "without prejudice" that do contain offers of settlement.
from http://en.wikipedia.org/wiki/Prejudice_%28legal_procedure%29
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Well. Tomorrow, January 12th is the "deadline" for me to respond to Geoffrey Beal and Masterfile before they "release this matter for further action". I feel that I have stated my case in my previous letters to them but continue to weigh the option of sending one final letter to them. A letter that spells everything out. They have made it clear that they have made their "final offer". It is evident to me that because they clearly are not taking the time read my previous letters, proof read their own letters, or afford my case the same consideration that I am affording them, that they have effectively ended the negotiation. I am toying with the idea of letting them know that they have ended the negotiation - not me. I may also remind them of how this case would look once made public - ask them to consider the news headlines, "Huge Stock Photo Company Sues Startup Clinic for Children with Autism". Or, I may just wait for them to come back with their next round of threats and demands - which will surely be posted here for all to read. But just a little part of me thinks, "maybe I should give them one more opportunity to negotiate". I can't decide.
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Wow. Good thing I haven't yet pulled the trigger on my letter. It turns out that I have found some new evidence that clearly puts Masterfile's claim to exclusive copyright of the image into question. I have come across a website that publishes the image as their own. It clearly shows a watermark and a copyright statement that does not belong to Masterfile. I did a google reverse image lookup and came across the site. Now, granted it is a Chinese site, but none the less, it calls Masterfile's claim of exclusivity into question.
Scroll down in this link and you may find a familiar image - with a copyright watermark by someone other than Masterfile. http://www.rayli.com.cn/zixun/LT_405772_15.html (http://www.rayli.com.cn/zixun/LT_405772_15.html)
Here is another copy of the image. http://lifestyle.rayli.com.cn/skills/2008-03-22/L0014005_295626.html (http://lifestyle.rayli.com.cn/skills/2008-03-22/L0014005_295626.html)
A Google Translate of the text below the image reads, "Credit: Panorama (provided) Copyright shall not be reproduced without the written permission". Looks to me like Masterfile is going to have to do a lot more to prove that they have exclusive rights to the image in question. And I recommend that Geoffrey Beal and the lawyers at Masterfile brush up on their Mandarin!
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Any resolution to the Dieselfish situation? I recently received a letter from Masterfile as well and I'm interested to see what the outcome was. Apparently they love trying to make the little guy sweat.
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observations from Canada
interesting points
MF inadvertantly allows its sub-licensees to exhibit images with their own copyright, referring to MF using the word "Agency"
A sub-licensee is not an agent
MF cannot assert exclusive copyright where 2 legal entities claim copyright separately and therefor cannot maintain an action
Damages - MF claims typically 3 years (limitation period) - should MF not be held to a higher standard of due diligence ie it has access to the webcrawler software that monitors the internet 24 hours a day - how is it that alleged infringements come to its attention only after 3 years
Damages - coupons are shows on its site allowing 20-30% discounts - is not after discount pricing its true measure of damages if all other elements proven
Random points for consideration
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These are good points testy but the issue often is that to prove or establish them you have to go to court and get the proof (or lack thereof). Masterfile, since the 9th Circuit decided their method of registration is valid (in the US of course), has gotten even more aggressive.