Bought Template 7 years ago, Now MasterFile is coming for me *Wow Update*

[Mastrik]

Hello everyone,

  Looks like I will be adding my case to the long list at this website, but yesterday we received a FedEx package from MasterFile concerning 2 images on our website that we purchased the template from TemplateMonster.com way back in 2003 (the site was published in 2004) of course they are demanding $36,000 since it's been up since 2007.

  As it was so long ago, we no longer have the receipts from the designer who made the purchase (and who knows what happened to him, he could be dead for all we know) but we did remember he got it from templatemonster.com because that where he had us go to pick it out. Once we did he purchased it on the spot when we picked it out (he did this in our presence so I'm pretty sure he wasn't scamming us).

 Luckily it is (still) a popular design as TemplateMonster still sells it WITH THE EXACT SAME IMAGES STILL INTACT.

 As we have the full template as it was when we purchased it (aside from obvious customizations) we left all images intact (well, we're removing the ones they say are illegal but I digress).

 I'm wondering, since it has been 7 years (we don't keep records past 3) is it going to be an issue that we don't have the receipt? Or should Template Monster have this on file still, hopefully?

I mean, clearly, we bought it from Template Monster, they still sell the exact same template. So I would think it's obvious.

I'm contacting my lawyer on Monday to assist but would like to know if anyone else has been in this situation and if I'm going to get screwed because I don't have the 7 year old receipt.

I keep reading that the statute of limitations is 3 years and I know I'm not required to keep business records from 7 years ago. But this thing has got me confused and upset.

Thanks for reading, hope someone can ease my mind a bit or it's going to be a looong weekend.

[Lettered]

My understanding is that Templatemonster has been handling these issues for their clients ... at least where Getty images are involved.  I'm not sure what consequences Masterfile involvement, or a lost receipt might have, though.  In my opinion, it would be wise to have a look at the following link and read it carefully before you start incurring legal fees:

http://blog.templatemonster.com/2007/09/19/template-monster-signs-a-new-agreement/

[SoylentGreen]

Good post by "Lettered"!

This would be quite a weak case for Masterfile.
Your situation is a case of "innocent infringement", and they would find it difficult to collect statutory damages of any significance in court.

"Aside from the provisions protecting innocent infringers in cases of erroneous or omitted notice, the 1976 Act’s more significant and more generally applicable form of remedial relief for innocent infringers is the possible reduction of the amount of statutory damages: where an infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200” rather than following the ordinary minimum of $750."

http://www.law.uci.edu/pdf/treese/reese_innocent_infringement.pdf

While they could attempt to collect the "purchase price" of the images(s), this would be miniscule compared to what the statutory damages could be.
Masterfile will still attempt to harrass you and tell you that you have to pay anyway; that's their business model.
But, the chances of such a weak case ever reaching court are tiny.
Keep the screen shot of the Template Monster template.

Good luck!!

S.G.

[Mastrik]

Thanks for the replies, still looking kind of hairy if I don't somehow locate this reciept or the email address this guy used for te template (apparently ours wasn't used). Someone in the company did get a chance to speak to Oscar who made it sound like reciept or not, it's going to cost a couple of thousand in attorney's fee (as a corp, we must hire an attorney) at best and if we don't find the reciept they can get us for 3 years (because of the statute of limitations I assume plus the attorny's fees.

That is crazy. No matter what, legal transaction or not, win or lose, it's still going to cost a few grand. I don't get it. How is this not in the news, how are AG's or congress no taking a look into this? How does this crap happen in America, and be legal?

You hear of copyright infringement all the time (especially in this age of YouTube), but you don't hear anything about them having to pay an attorney to prove themselves innocent, they give them a chance to take it down (and these guys actually directly infringe on copyrights), we bought a template from a large, "legitimate" source with an extremely reasonable assumption that what we purchased was legally licensed. (Can you see these Apple lawsuits against Android where they are able to sue Android users over the touchscreen patent after getting what they want out of Google)?.

I don't know. TemplateMonster.com is still a highly rated, trusted site, today more so then back then. How the hell can we be held liable (or even have to pay any attornies fees to fight this) when they still sell the exact same template (infringing pictures and all) on their website.

Theres got to be something we all can do.

Anyway, I'm done, again thanks for the replies, I guess we'll see how it all pans out but right now, it ain't good.

[Oscar Michelen]

Template Monster made a settlement with Getty but not Masterfile, I believe.  Sometimes you can get them to come on board if you have proof that they did your website. Without a receipt you are not going to get them to help pay the settlement.

[SoylentGreen]

Mastrik,

I don't know if Masterfile has moved forward on this.
However, you shouldn't spend too much on this unless you actually require a professional defense.

You are fortunate that you can at least show that a template was used that contained the infringing images.
You have a "defense" in my opinion.  It could be a lot worse.

On the subject of YouTube, they have been involved in legal battles for some time over copyrights.
However, they are reluctant go after the "end users" because a lot of YouTube content is created by those users.
If end users were to be sued, YouTube itself would be in jeopardy.
However, I suspect that YouTube does attempt to collect information on infringers (especially repeat infringers).
Perhaps, they are covering their bases, just in case.  But this is probably beyond the scope of this forum.

S.G.

[Mastrik]

Update (for those that find themselves in a similar situation). Through a long and tedious tracing of steps and finding random people connected to the website project, we narrowed it down to one guy and company that no longer exists. We sent this information to the contact at TemplateMonster.com who actually found the order from 2004. They stated the graphics in question had to be taken down (interesting as they still sell them but they are offering to replace with legit licensed ones) and that should be sufficient in complying with MasterfilesRequest. If they push it, TemplateMonster.com will handle.

That's pretty awesome of TemplateMonster I think, although the whole experience has soured me from templates. Anyhow, looks like we're in the clear but if anyone else has a similar situation and lost the original reciept (which I will be keeping everything forever now) TemplateMonster can locate it with the right info.

Anyhow, good luck to everyone fighting these people, they sure are nasty and really, how the hell can they do this to people in America anyway?

[Mastrik]

Update: Wow, I thought this was over, apparently not. Now, even with the reciept in hand from TemplateMonster.com and their word that they would handle the case should Masterfile persue, Masterfile is refusing to acknoledge the reciept and will not speak to TemplateMonster's attorneys.

They claim that TemplateMonster has nothing to do with our case and now they are demanding even more as they now have proof the infringement began in 2004 (the date of the reciept (to the tune of $50k)).

I don't see how any of this is legal. Am I going to have to just break down and spend thousands on an attorney anyway?

How is this legal? WTF is up with these copyright laws? How can one purchase ANY images without fear of being successfully sued even when you have reciepts?

[SoylentGreen]

Hey Mastrik,

Thanks for posting your experiences here.

Don't rush out and pay an attorney.
You're pretty much safe now.

You have the documentation that you purchased the content in good faith.
So, this has become a true innocent infringement case.
Masterfile wouldn't be able to get much money from you in a court (if any at all).
So, you'll never end up in court.

More importantly, TemplateMonster is willing to work with them.
Therefore, you could meet any court action against you with a request for summary dismissal.
That is, you could ask the court to reject the case immediately.
You can do that because MF must sue the correct party involved (not you).

Furthermore, it's important to note that courts are only concerned with making a wronged party "whole".
If a fair settlement offer is made, then the wronged party is made "whole".
The courts have no interest in malicious lawsuits.

MF has a lot of gall asking for so much money from you.
Their reputation in the industry is pretty much trashed these days.

Thanks for the updates.

S.G.

[Oscar Michelen]

In addition to SG' s response, be aware that MF can only go back 3 years from the date they discovered the image. That is the statute of limitations, they cannot seek damages for any infringement that occurred before then.