Canadian Letter

[canuck]

Advice requested please


- Getty images just sent letter about infringement on a business website. The website was built and hosted by a US company . In that companies TOS they state they will not use any material that they do not have copyright on. Apparently they used a Getty image so the letter came to us. (one small image buried several pages in that they want $600 for)

We responded to Getty and received the standard " pay us as it's your responsibility"

My questions revolve around several issues-

1. The website provided in writing that the site being developed was free of infinged material - Do we have recourse against them?

2. The host\designer was advised in June to remove entire website as business had closed. They have not removed the site (we no longer pay though). Isn't the copyright infringement issue now theirs as we do not own the site and have no ability to remove the infinging image from the site?.

3. Is there not a legal requirement in law to mitigate your losses?

By Getty not taking actions against the web host and designer; they are NOT mitigating their losses as they are taking no actions against the root cause of the infringemnt. They can technically make more money going after all the customers of the host; now and in the future; rather than a single action against that particular host\designer now. They can simply watch for any sites built from now on by the host, and send out more letters .



One last point - does Getty have to serve you papers to proceed with a lawsuit? And how would they do that to a canadian resident.

Thanks

[Robert Krausankas (BuddhaPi)]

Getty sends the letters to the owner of the domain ( registrant) so whomevers name is on that is the legal owner of the site, not the hosting company or the designer. If you have it in writing that the design does not / will not contain any unlicensed images you could possibly get this sent to the design company. I often register domains on my clients behalf and always reigister it under their name, as they supply my company with images and it takes me out of the loop is they so decide to grab images from anywhere, even after explaining the consequences of such behavoir. Most hosts, don't do design work, they just host the sites and most reputable ones will have something in their TOS regarding copyrighted material. My design company also offers hosting services, but we have a strict policy that any copyright infringement is in violation and accounts will be terminated without warning. our policy also states that my company is not responsible for any materials uploaded by clients that may contain copyrighted material...again removing me from the loop..don't know if this helps at allbut i hope so and wish you luck.

[Oscar Michelen]

I will be glad to answer your questions

1. The website provided in writing that the site being developed was free of infringed material - Do we have recourse against them? Absolutely, they are responsible to you as your web developers - They got you into this mess

2. The host\designer was advised in June to remove entire website as business had closed. They have not removed the site (we no longer pay though). Isn't the copyright infringement issue now theirs as we do not own the site and have no ability to remove the infinging image from the site? You would be responsible for the infringement that occurred while you had ownership and control of the website.    

3. Is there not a legal requirement in law to mitigate your losses?

By Getty not taking actions against the web host and designer; they are NOT mitigating their losses as they are taking no actions against the root cause of the infringemnt. They can technically make more money going after all the customers of the host; now and in the future; rather than a single action against that particular host\designer now. They can simply watch for any sites built from now on by the host, and send out more letters .  

They have no legal obligation to go after "the root causes" of the infringement and can proceed against the entity that received the benefit of the infringement.    

One last point - does Getty have to serve you papers to proceed with a lawsuit? And how would they do that to a canadian resident.

There are a number of ways they can do that, too complicated to set out int his forum, but they can also sue you in the US if they can prove you did substantial business here and that you had enough contacts to acquire jurisdiction

[canuck]

Thanks for the information and prompt response

As there was no actual business conducetd in the US, I assume they will need to proceed through the Canadian legal system, correct?

I'll try and keep the site apprised of how this all progresses.

Thanks again

[Oscar Michelen]

Thats right and yes, please keep us posted!

[SoylentGreen]

Copyright trolls masterfile and getty are very good at intimidation; that's how they make their money.
Of course, they don't inform you of your rights in their correspondence.
They may not even have a winnable case against you, so do your research before sending any money.
The copyright troll phenomenon would diminish greatly if most people did more research, and fought back more aggressively,

Here's some interesting info about Canadian law as it relates to intellectual property/copyright issues:

http://blog.innovatellp.com/2011/02/masterfile-corporation-and-copyright.html

http://www.blakes.com/english/publications/brip/article.asp?A_ID=147&DB=blakesProperty


Good luck,

S.G.