Providing Proof of Infringement

[annalise]

One of the requirements for a court case would be Proof of Infringement and Date of Infringement.

Exactly what documentation are these stock photo companies providing as "Proof"?  Is a screen shot of a webpage sufficient proof?

Also, how are they proving the date of alleged infringement?

Is it within legal rights of defendant to require substantiation of the "method" used to detect the infringement?  I.e. showing report from their picscout service on the date of detection?

[Matthew Chan]

They probably aren't going to be able to nail down the exact date but they do have two places they can obtain third-party screenshots of approximately when it might have happened.

IF this does escalate to the lawsuit level and it reaches the discovery level, you could require it then. Otherwise, they don't have to provide anything. They can't threaten you all day long.

This is why I tell people that at some point trying to "outlawyer" Getty Images is futile. They are not obligated to do anything. They know all they have to do is wear people down and they will eventually cave in.

I am a big proponent of game-changing the fight. That is the whole reason ELI exists and it is for free. And yet, to this day, everyone persists in fighting it THEIR way, instead of your own way.

[Peeved]

One of the requirements for a court case would be Proof of Infringement and Date of Infringement.

Exactly what documentation are these stock photo companies providing as "Proof"?  Is a screen shot of a webpage sufficient proof?

Also, how are they proving the date of alleged infringement?

Is it within legal rights of defendant to require substantiation of the "method" used to detect the infringement?  I.e. showing report from their picscout service on the date of detection?

They probably aren't going to be able to nail down the exact date but they do have two places they can obtain third-party screenshots of approximately when it might have happened.

IF this does escalate to the lawsuit level and it reaches the discovery level, you could require it then. Otherwise, they don't have to provide anything. They can't threaten you all day long.

This is why I tell people that at some point trying to "outlawyer" Getty Images is futile. They are not obligated to do anything. They know all they have to do is wear people down and they will eventually cave in.

I am a big proponent of game-changing the fight. That is the whole reason ELI exists and it is for free. And yet, to this day, everyone persists in fighting it THEIR way, instead of your own way.

As the "defendant/recipient" of a demand letter, of course you are entitled to ask any question that you wish before you go handing over a large sum of money to such an entity. What Matthew is saying is that although you are entitled, the stock photo company does not have to disclose such information until the point of "discovery". So you can go back and forth with questions until you are blue in the face. They will keep coming back at you with B.S. unless of course you hire an attorney which will end communications directly.

Bottom line is....be READY to defend yourself in the end if necessary and if you cannot handle the B.S. letters in between, hire Oscar or another attorney for peace of mind.

[Mulligan]

If you're not comfortable handling the matter yourself after educating yourself with the wealth of material on ELI, then I'd recommend hiring Oscar. From what I've read here and on other sites, there are a lot of lawyers out there who would give very bad advice regarding an extortion letter from one of these companies. So if you do hire an attorney other than Oscar, do your homework first and make sure that person actually knows something about intellectual property law as it relates to image copyright on the Internet.

[Oscar Michelen]

They generally rely on nothing more than a dated screenshot of the webpage and information from archive.org. Also, they can rely on any admissions you make that are not part of a settlement negotiation so always be careful what you say in your initial discussions with these companies. Lots of  folks think that adding "This email is sent pursuant to Federal Rule of Evidence 408" protects all of the communication from begin disclosed in a lawsuit. Generally, FRE 408 bars settlement evidence “when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount.” However, the rule does not bar all settlement evidence when offered for other permissible purposes not listed in the rule. A recent case involving timeshare interests in receivership proceedings for example allowed evidence of ownership of the interests that was conveyed in a settlement discussion. So for example if you admit owning the site, a court may say that's not protected by FRE 408. So while you should always add that disclaimer, still be careful what's discussed in the body of the email or communication. Sorry for the lengthy response - here endeth the lesson.

[Matthew Chan]

Oscar,

People are up in arms because you simply post too much, talk too much, and teach too much.  Good think you caught yourself there.  We were close to having a revolt happen from all that legal explanation.  It really is offensive when you start getting into the finer points of legal discussion for us non-lawyers and force us to think.

For future reference, we can only handle yes and no answers and black and white positions.  Please..... no more finer legal distinctions ok?   Oh, and don't forget to keep your responses to less than 5 sentences.  Each sentence should not contain more than 7 words.  New rules for 2012.

P.S.  For the humor-impaired, the last 2 paragraphs was me being a smart-ass and yanking Oscar's chain in full public view.  It is always an event when Oscar gets in the mood and does a strafing run on th ELI forums. You just never know when he is going to pounce. Strafe us again soon, ok?

Sorry for the lengthy response - here endeth the lesson.

[annalise]

Regarding communications with these people:  Wouldn't the communications be vital to showing my "good faith" in settling this matter and for example, if I send a letter stating that I have repeatedly requested valid proof of registration and it has not been provided therefore how can I send a check for anything...      This letter would show a judge that this company lacks cooperation- looks good for me.

 

[lucia]

annalise--
Asking for registration is not making any admission against your interest. So, it's not the sort of thing Oscar is suggesting you omit from your emails, phone conversations or letters.  Material to omit are statements like

• "Yes. I own that web site".
• Yes. I personally copied the image and hosted it on my web server from day X to day Y and I've now taken it down.
• I hired joe blow and he put it on my server and site.

All these things my be true and you might be required to reveal them during discover if Getty ever gets around to suing you, but it is better to make Getty collect their own evidence or wait until discover to get information they need to fully make their case.   Instead of saying things like "I did host the image from x to y", you could try to figure out the most uninformative way of letting Getty know the image has been taken down while not actually admitting anything that is contrary to your interest should you end up in court.    Depending on what points you think are ok to confirm or reveal, this could take a bit of doing because you a) must not lie and b) you don't want to say something so ridiculous sounding third parties will really think you are being too cute for words.

If, for example, they sent the letter to you, but really, it belongs to someone else who you know (husband? Club?), you could write your friend, ask them to take down the image, and respond:

"Dear Getty,

I received your letter about image X at site.  I've examined the site in question.  The image no longer appears at the site.

Sincerely,
Joe Blow "

This fails to inform Getty who owns the site. Heck, it's not even an admission the image every appears!  If they sent the letter to the wrong person, you didn't let them know that fact. They can't win a suit against the wrong party, so if they don't know who to sue, they have to figure that out.  In contrast, if you wrote them and said "I don't own the site. Party X owns it", you've done some research for them. 

On the other hand, if you own the site, you know that ownership information is trivial to discover, the letter came to the correct place and so on, then you might just say "I edited the site and the image no longer appears".   This statement is an admission that you have some control over the content-- after all-- you can edit.  But don't tell them them any more than the fact that you've edited the content in a way that made the image vanish. It's not an admission that you were in control when it appeared! (Heh!)  As far as you've admitted, the image might have been hotlinked-- which the 9th circuit court ruled not copying under the US copyright act -- etc.   You might not have full control of the site. You might not own it. The image might have been hosted on your server or someone else's.  Getty might be able to find out, but the point is, they need to do the work.

The fact is: You don't even need to present all evidence in your favor in your first letter (or 2nd or 3rd.)  Notice they don't send you complete evidence in favor of their case. They don't admit the obvious or possible flaws in their case.

When writing them remember: They are not the judge.  They are unlikely to write by "Oh. You're right."  They are much more likely to be crafting stock defenses for every possible defense they think will come in, and sending them out. They will continue to send out letters at a cost of $0.37 + cost of paper, employee costs for envelop stuffing and printer ink.   

In restrospect, had I read this site further, I my first letter would have been more vague. I would have in parallel done some research and collected more evidence for my file.    (My case is one of hotlinking-- so I think getty would lose in court if they sued me.  But I don't think I even needed to spare their time by explaining the hotlinking and sending them evidence that I was only hotlinking in my first letter.  I still wish I would have been more vague and strung them out and presented my evidence that I wasn't infringing until later. But that's water under the bridge.  But knowing Oscar's advice now, my first letter would be more vague.)

[dieselfish]

@lucia - I'm with you on this.  The same thing happened to me.  I was intimidated by the first letter and divulged too much information in my initial response.  In reality, Masterfile sent me a single dated screenshot of a page on my site.  They could show that the image was on the site for, at most, a single day.  The site was too new to be archived or cached.  They also sent the URL of the page containing the image - not URL of the image.  So as far as they were concerned, the image may not have even been hosted on the domain in question.  They ended up using information that I supplied in my initial response against me in future letters.  So, yes - be as vague as possible.  Force them to do the discovery and provide all of the information.  Don't be intimidated, and don't do their work for them.  To quote McFilms, "Stop Asking and Start Telling"! 

[SoylentGreen]

I really don't see the point of trying to submit a "defense" if you're not sued.
They won't listen to you, and will keep sending letters to wear you down.

Even if it's a "TemplateMonster" issue, they'll keep bugging you.
In that case, you'd have to contact TM, and they'll pay off Getty.
Getty will grudgingly take the money from TM, and leave you alone.  But, grudgingly.

If it's not your site or something, that's different.  They might listen to that.

S.G.