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Author Topic: Creative Commons Photos on Facebook, Twitter, etc.  (Read 16441 times)

aot

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Creative Commons Photos on Facebook, Twitter, etc.
« on: September 28, 2018, 02:58:10 PM »
Starting this thread to discuss any copyright issues over posting Creative Commons licensed photos on social media platforms, such as Twitter and Facebook Groups or pages.

We received a copyright violation letter from Pixsy asking for $750 for an image of a town square by a non-US photographer which was shared on his Flickr under CC BY SA 2.0. The image (a low resolution version) was posted to our Twitter without linking to the CC BY SA 2.0 and mentioning the photographer's name.

Photo URL: https://www.flickr.com/photos/30478819@N08/33422812735/in/photolist-SVsDMZ

The photo was searched, downloaded, and queued by our Filipino offshore staff who had limited knowledge about such limitation related to CC images being shared in an informational tweet.

Clearly, a mistake was made and we were happy to resolve it within an hour of receiving the email from Pixsy.

That said, one has to acknowledge the fact that a tweet is limited to 280 characters. Our offshore staff provides all licensing and author information and necessary links when using a CC photo in a blog post.

Moreover, we use an automation tool (Buffer) to queue hundreds of tweets in advance. The tool picks up images automatically from a recently published blog post but doesn't pull in captions or any links/text mentioning CC licence link and/or author name.

When Pixsy first emailed us, we immediately deleted the tweet within 1 hour of their email and notified them regarding the same. We take copyright seriously and have a large blog that thrives on linking to one another's work to make this "Internet thing" great for everyone.

As creatives and photographers ourselves, I feel asking someone to pay money (any amount of money) for an image released under the Creative Commons, is a violation of the "spirit of creative commons" itself.

If you genuinely understand Creative Commons, one should know that the whole purpose of this non-profit is to promote creativity and shareability AND protections from Sharks (aka aggressive Extortionist) and Leeches (aka Copyright Trolls).

Let me explain the purpose of this thread.

I am starting this thread to:
1. Document how we are handling this dispute with Pixsy
2. Seek community guidance
3. Have others share any other similar incidence.

We have seen many instances where a blog or website is targeted for using a copyrighted photo or materials without having a licence.

But, I have not seen a case where someone has received a similar threat for mistakenly posting a creative commons image in a tweet and then getting harassed by these rent seeking (blood sucking), copyright trolls (aka non-producing members of society).

In this first post, I am going to share Pixsy's first opportunistic/harassing email to us and our response.

Quote
Pixsy Case Management Team <resolution@pixsy.com>
Tue, Aug 28, 12:33 PM

The Art Of Travel
[Address]

By email: [email]

Unauthorized Use of [Mr. Photographer's Image - Case Reference: 000-0000000]

August 28, 2018
 
Attn: [AOT]
 
Pixsy acts on behalf of Mr. [Photohrapher]  as their authorised licensing and copyright agent. We have been notified by  Mr. [Photographer]  that  The Art Of Travel  has been using their imagery without license or permission. Details of the unauthorized use are set out in the attached pdf documents ' Unauthorized Use Report' and 'Evidence Report'.
 
The unauthorized use was detected at this location on your website:
 
https://twitter.com/TheArtOfTravels/status/981885426385522688
 
Your use of Mr. [Photographer's] image without a license is a violation of his exclusive right to reproduce, distribute, display and prepare derivatives of his copyrighted work. Unlicensed usage takes power away from the creator and significantly devalues their work.
 
Steps required to resolve this matter immediately:
 
1. Review the details of case 000-000000 in the attached Unauthorized Use Report and Evidence Report
2. Refer to the attached FAQ if you have any questions about why you received this letter
3. Make payment of your license fee for your use of Mr. [Photographer's] image on or before 18/09/2018.
 
Payment can be made through our secure online portal at the following URL, and alternate payment options are available to you in the attached PDF:
 
https://my.pixsy.com/resolve/xxxxxxx
 
It is our belief that every artist has a right to be fairly compensated for use of his or her work, and we will take every effort to ensure that our clients' intellectual property is protected.
 
Note that a failure to resolve this matter of unlicensed use within 21 days will result in escalation to one of our partner attorneys for legal proceedings.
 
We look forward to resolving this matter with you.
 
Kind Regards,
[Name], Case Manager
Pixsy Case Management Team
 
Phone:  +1 (323) 284-9404
Post: Pixsy Inc., 340 S Lemon Ave, Walnut CA 91789 

Email:   resolution@pixsy.com   (please always reply to the email thread and include the case reference number)

Web:   www.pixsy.com

** Please note: Contact information obtained by Pixsy for this case is from your website(s) and/or publicly available sources. All data storage, processing and communications are subject to our Pixsy Privacy Policy available at: www.pixsy.com/privacy-policy/

Email ref:_00Dxxxxx._5001p2akH1o:ref

---
PRIVATE AND CONFIDENTIAL. This e-mail, its contents and attachments are private and confidential and is intended for the recipient only. Any disclosure, copying or unauthorized use of such information is prohibited. If you receive this message in error, please notify us immediately and delete the original and any copies and attachments. The information provided by Pixsy Inc. is general information only and does not constitute legal or other professional advice.
Our Privacy Policy is available at www.pixsy.com/privacy-policy/

Our response:

Quote
Dear [name],

Hope this email finds you well.

Please accept our sincere apologies from behalf of our entire team for mistakenly using Mr. [Photographer's] image under CC BY 2.0 image.

We have removed the Frankfurt, Germany tweet containing that photo. (8/28/2018) The non-commercial and informational tweet was made on April 5, 2018 and had received 4 Retweets and 5 Likes.

Upon further investigation on our end, we found out the photo was downloaded from Google images > Free to use results.

The photo referenced in this emails is shared on Flickr website by Mr. [Photographer] under Creative Commons license.

We take copyright materials very seriously and believe in fair use. We do our best to credit the original creators and/or image license by linking, however, due to the character limitation of Twitter platform, a link to Creative Commons license and [Photo and Photographer's] name could have been missed by our offshore staff.

I hope we can settle this case in good faith and with no further action necessary.

Please let me know if I can be of further assistance in this matter. I have contacted Mr. [Photographer] on Flickr as well.

Best regards,
AOT

Our first email to Mr. [Photographer] on Flickr:

Quote
Subject: Pixsy and Copyright trolling

Dear [Photographer],

Greetings from Boston, MA. Hope you are having a wonderful day!

I am emailing you on behalf of thousands of independent bloggers and creative artists who rely on the spirit of Creative Commons and fair use.

Recently, we have received a copyright infringement notice from Pixsy which states they represent you. They are demanding $750 USD + up to $35,000 USD for court case compensation for a photo that was published under CC BY 2.0 by you.

The photograph in question is: Main square of Frankfurt / Hauptplatz von Frankfurt

This photo was tweeted by us to encourage people to visit Germany. Since tweets are limited to 280 characters, it did not mention and link to the CC licence and/or tagged you on Twitter. This was clearly a mistake on our part.

Since we use an automation tool for advance queuing our tweets, the photos from our blog (where CC links and author credits are always mentioned) are lost. The photos are picked by the tool and all texts and links are added manually by our offshore staff.

The moment we learned about it (through email from Pixsy), we deleted the tweet within 1 hour.

Also, after realizing this gap and limitation with Twitter automated queuing, we have stopped this process completely. We are currently manually adding tweets.

I have two requests to make:
1. As an independent artist myself, I understand that copyright protection serves an important role. That said, I also believe that if someone is infringing your work, you should ask the person to either stop using it and/or provide proper credit (whether monetary or via a backlink and mentioning the original creator).

The Creative Commons movement was created to protect and enlighten this spirit of shared repository where creatives don't have to fear copyright trolling from large media companies or rent-seekers.

2. Everyone wants to make money to pay their bills and artists don't have to starve. But by joining rent seeking trolls such as Pixsy, you are contradicting the very spirit of Creative Commons.

Under copyright protection laws and Creative Commons community guidelines, the first step towards protection of any intelectual property is to send a "ceise and desist". Not, threats and unreasble money demand. This is a pure form of harassment.

As you know, 99% of independent bloggers, photographers, YouTubers, amateur creatives make $0 USD of income.

Now, if you demand them to pay a fine of thousand dollars which is perhaps more than even their net worth, it's not just harassment or copyright trolling but evil.

As a fellow human, fellow artist, I request you to not partner with Pixsy or any middle layer rent seekers. By partnering with them, you are encouraging them and even helping other companies to form in this area of copyright trolling.

I hope that you would give this matter your sincere thoughts.

Best regards,
The Art of Travel

Alright folks, I am happy to update everyone on how this issue gets peacefully resolved in due time.
« Last Edit: December 06, 2018, 11:06:09 AM by aot »

DavidVGoliath

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #1 on: September 29, 2018, 07:12:37 AM »
Under copyright protection laws and Creative Commons community guidelines, the first step towards protection of any intelectual property is to send a "ceise and desist". Not, threats and unreasble money demand. This is a pure form of harassment.

Nope: this is pure fantasy.

US copyright laws mandate no such thing, and though the Creative Commons community may wish disputes to be resolved in such a manner, a rightsholder can seek to rectify a breach of license in any way the law permits - and that can even mean that their first step could be to file a petition with the courts.

With that said, civil courts often (rightly) frown on matters being put to them if no attempts have been made to resolve matters outside litigation... hence Mr. Verch using Pixsy to track, trace and contact any entity that breaches his licensing terms.

Getting to the heart of the matter: whether Creative Commons language or any other terms are used, rightsholders who allow conditional use of their works are doing so within the bounds of copyright laws and, again, as you are a US-based company, you should look to what your own laws say. In this instance, it would be 17 USC 106, subsection 3, summarised as

"The owner of copyright has the exclusive rights to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending"
(emphasis added, and redundant phrasings removed)

License terms, whether CC or otherwise, constitute a lease of a work to you. A breach of lease equates a breach of copyright - it's that simple.

I also note that you're using emotive terms such as sharks, leeches, trolls, rent-seekers and so on, as if seeking monetary compensation is an inherent evil - yet your own twitter account and blog plainly advertises merchandise for sale, proudly stating "#1 Travel brand for #adventurers & #wanderlusters ☼ Shop for #Travel clothing, t-shirts, gears & accessories ♡ http://www.artoftravel.tips "

So is a capitalistic enterprise fine when the money flows in your direction, but not away from you?  ;)
« Last Edit: October 02, 2018, 04:04:24 PM by Matthew Chan »

aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #2 on: September 29, 2018, 10:28:53 AM »
To help all current and future ELI forum users who might be facing a similar situation (or any future incidence).

Beginning-to-end timeline:

Summary:
First email from Pixsy: Aug 28
Second email from Pixsy: Aug 31
Third email from Pixsy: Sep 12
Fourth email from Pixsy: Sep 12
Fifth email from Pixsy: Sep 16
Sixth email from Pixsy: Sep 21
Seventh email from Pixsy: Sep 27

Details:
First email from Pixsy: Aug 28, 2018
Attachments: Unauthorized Report; Evidence Report
Our response: Same day, Aug 28. Sent our apologies and deleted the tweet.
We took screenshots of the tweet, etc. Image deleted from our server even though we can continue to use it on our blog. But any photographer who partners with rent-seeking, non-producing middle layers, we don't want to use their photo and promote them by linking to them on moral and ethical grounds. (I'll share more detail in another response on what we have since decided to eradicate this social evil, including what defines a "social evil". Remember, slavery and Indentured servitude was also legal not too long ago. Just because something is legal doesn't make it "right" or "lawful" or "21st century, going to Mars generation.")

Second email from Pixsy: Aug 31, 2018
Our response: Ignored

Third email: Sep 12, 2018
Our response: Ignored

Fourth email: Sep 12, 2018
Our response: Ignored

Fifth email: Sep 16, 2018
Our response: Ignored

Sixth email from Pixsy: Sep 21, 2018
Our response: We asked for Copyright registration proof. Email response sent on Sep 22, 2018. (Next day)

Seventh email from Pixsy: Sep 27, 2018
Attachment: Batch copyright registration of 750 images by Mr. Verch. The image in question neither listed or shown.

PS: The reason, I am doing this, is not because I have either 'time' or 'money' but because I have neither and I know this now from a first-hand experience how damaging these copyright trolls are to the independent artists, creatives, bloggers, entrepreneurs, small business owners, et. al. and their dreams and hard work.

Ironically, they are these businesses, who claim to help individual artists protect their work by charging (extortion?) the bottom 50% of the population who are trying to make a living. (aka the majority of the victims of this kind of trolling and bullying)

PPS: Copyright laws is in the urgent need of updates. Particularly the "statutory damages clause." Without, the blanket, unclear, muggy statutory clause, 99.99% of these cases are worth just the Spam folder.

Good luck everyone; and PLEASE don't pay a penny to any bully (you will only encourage them to bully more).
« Last Edit: December 06, 2018, 10:50:09 AM by aot »

DavidVGoliath

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #3 on: September 29, 2018, 12:57:57 PM »
Copyright laws is in the urgent need of updates. Particularly the "statutory clause." Without, the blanket, unclear, muggy statutory clause, 99.99% of these cases are worth just the Spam folder.

Are you alluding to wanting statutory damages eliminated from the range of possible penalties available to a plaintiff when filing an infringement claim in Federal court? I just want to be clear on your point of view.



aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #4 on: September 29, 2018, 08:49:52 PM »
DvG, no.

Part 1:

"Statutory damages" is there for a reason and it serves a purpose where "actual damages" and "profits" are hard to calculate. (More on it: https://en.wikipedia.org/wiki/Statutory_damages and click links to US Code)

But, if "actual damages" and "profits" are negligible or none, then as a start it could be like "tax brackets" or a "warning-penalty" system. Not a fixed amount just because you had to pay legal fees. The burden of punishment should be in relation to how much the punished can bear.

Also, I am assuming the infringer is "not innocent". IF innocent or if a mistake was made due to a lack of knowledge or proper understanding, the punishment should further be reduced by half (at minimum) to full pardon (based on the court's judgment).

PS: Let me explain:
Modeling tax bracket for any types of legal fine:

A college kid making $12,000 USD/year working at McDonald starts a blog on the side. S/he uses a photo that was copyrighted. The copyright holder brings a lawsuit and asks for $750 USD in damages.

The kid has made no profits for herself/himself AND the use of this photo has not caused any loss of income or brand reputation damage to the copyright holder.

Now, in this case, the only way to get at $750 USD amount is by implying "Statutory damages". But since the kid is in 10% tax bracket (12K minus deductions, etc.), the Statutory damages = (100/40)*10

40% tier = highest bracket = $750
10% tier = (40/100)*10 = 4

$750/4 = $187.50 (The burden of punishment should be in relation to how much the punished can bear).

If innocent, the maximum fine above should be no more than 187.50/2 = $93.75 USD.
Or, ideally, $0 and a warning for first offense.

Note: I have picked arbitrary numbers. I am sure, many folks much smarter than I can do a much better job at fixing this broken loophole which allows leeches to swim.

Part 2:

I have not spent enough time in copyright laws to make concrete suggestions on how it should be improved and why current "Statutory damages" is the loophole that Getty and Getty clones are exploiting. (Note this point. This argument is going to repeat again and again.)

But I can tell you this, this whole forum and forums like ELI are full of victims (commoners) of complex laws. A Netflix documentary is long due on this and like Pay Day loan sharks, some folks are awaiting possible jail time or business shut down.

I believe the end of this BS is near. Be it in the next 5 months or 5 years or 15 years.

Part 3:
DvG, I have two questions for you:
1. Do you think the current copyright laws are clear, concise, and most importantly fair (with no room for improvements)?
2. By discouraging and scaring common people here on this forum, what do you gain? Boost to your ego? Satisfaction of trolling? Or do you feel smart thinking, I am a contrarian.

For example, you clearly do not have my interests at hand. So why do you expect I engage with you? Or anyone for that matter.
In this fight, I have my skin in the game. You don't.

If someday you can understand this basic principle, you may very well be surprised by discovering many other better things are out there that deserves your limited time on this planet.

Are you alluding to wanting statutory damages eliminated from the range of possible penalties available to a plaintiff when filing an infringement claim in Federal court? I just want to be clear on your point of view.
« Last Edit: September 30, 2018, 12:51:44 AM by aot »

Robert Krausankas (BuddhaPi)

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #5 on: September 29, 2018, 09:32:44 PM »
"2. By discouraging and scaring common people here on this forum, what do you gain? Boost to your ego? Satisfaction of trolling? Or do you feel smart thinking, I am a contrarian.

For example, you clearly do not have my interests at hand. So why do you expect I engage with you? Or anyone for that matter.
In this fight, I have my skin in the game. You don't. "

DVG is clearly NOT discouraging and scaring anyone.. His posts are always well thought out and clearly explained, he might be "the enemy" in some eyes, and we may have to agree to disagree with what each believes..

 I suppose you could decide to follow the advice of "Unfairly Targeted".. : )
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #6 on: September 29, 2018, 10:57:01 PM »
For all current & future readers (*cough* victims)

The photographer, Mr. Marco Verch, we are dealing with (with Pixsy) has filed and pursued litigation twice:

1. Verch v. Hilton Worldwide Holdings Inc. et al
Filed: June 20, 2018 as 1:2018cv00752
Plaintiff: Marco Verch
Defendant: Hilton Worldwide Holdings Inc. , Doubletree Management LLC
Cause Of Action: Copyright Infringement
Court: Fourth Circuit › Virginia › Virginia Eastern District Court
Type: Intellectual Property › Copyrights
Result: NOTICE of Voluntary Dismissal by Marco Verch (Deal, David). So Ordered re11 Notice of Voluntary Dismissal filed by Marco Verch. Signed by District Judge T. S. Ellis, III on 8/10/2018. (dest, )

2. Verch v. Fans Favorite Fan, LLC
Filed: November 15, 2017 as 1:2017cv08884
Plaintiff: Marco Verch
Defendant: Fans Favorite Fan, LLC
Cause Of Action: Copyright Infringement
Court: Second Circuit › New York › New York Southern District Court
Type: Intellectual Property › Copyrights
Result: NOTICE OF VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above-captioned action is voluntarily dismissed, without prejudice against the defendant(s) Fans Favorite Fan, LLC. Document filed by Marco Verch. (Liebowitz, Richard)

What does this mean? Case settled pre-trial? For an undisclosed amount?
Is it possible to find out how much and with what Terms & Conditions?


Important to note: Both cases were filed for $400 filing fee. So, the minimum settlement amount has to be >= $400 + lawyer's commision. If not, it means Mr. Verch lost money out of his pocket. (This will be unlikely because, one, Hilton can afford to pay the amount and second, if Mr. Verch lost the first one, it will leave him with a bad taste and deter him from future trolling.

For eg. COMPLAINT against Doubletree Management LLC, Hilton Worldwide Holdings Inc. ( Filing fee $ 400, receipt number 0422-6141106.), filed by Marco Verch.(dest, )
« Last Edit: September 30, 2018, 08:38:56 PM by aot »

aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #7 on: September 30, 2018, 11:07:20 AM »
With enough push (and Creative Commons is on it), we the people may be able to make amendments to the US Copyright Laws.
 
U.S. Code › Title 17 › Chapter 5 › § 504
17 U.S. Code § 504 - Remedies for infringement: Damages and profits

(a)In General.—Except as otherwise provided by this title, an infringer of copyright is liable for either—
(1) the copyright owner’s actual damages and any additional profits of the infringer; or
(2) statutory damages

(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.

Explanatory Notes on Statutory Damages
Subsection (c) of section 504 makes clear that the plaintiff’s election to recover statutory damages may take place at any time during the trial before the court has rendered its final judgment. The remainder of clause (1) of the subsection represents a statement of the general rates applicable to awards of statutory damages. Its principal provisions may be summarized as follows:

1. As a general rule, where the plaintiff elects to recover statutory damages, the court is obliged to award between $250 and $10,000. It can exercise discretion in awarding an amount within that range but, unless one of the exceptions provided by clause (2) is applicable, it cannot make an award of less than $250 or of more than $10,000 if the copyright owner has chosen recovery under section 504(c).

2. Although, as explained below, an award of minimum statutory damages may be multiplied if separate works and separately liable infringers are involved in the suit, a single award in the $250 to $10,000 range is to be made “for all infringements involved in the action.”

A single infringer of a single work is liable for a single amount between $250 and $10,000, no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series.

3. Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded. For example, if one defendant has infringed three copyrighted works, the copyright owner is entitled to statutory damages of at least $750 and may be awarded up to $30,000.

Clause (2) of section 504(c) provides for exceptional cases in which the maximum award of statutory damages could be raised from $10,000 to $50,000, and in which the minimum recovery could be reduced from $250 to $100.

The basic principle underlying this provision is that the courts should be given discretion to increase statutory damages in cases of willful infringement and to lower the minimum where the infringer is innocent.

The language of the clause makes clear that in these situations the burden of proving willfulness rests on the copyright owner and that of proving innocence rests on the infringer, and that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts.

The “innocent infringer” provision of section 504(c)(2) has been the subject of extensive discussion. The exception, which would allow reduction of minimum statutory damages to $100 where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” is sufficient to protect against unwarranted liability in cases of occasional or isolated innocent infringement, and it offers adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulnerable to this type of infringement suit.

On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant’s claim of innocence.

In addition to the general “innocent infringer” provision clause (2) deals with the special situation of teachers, librarians, archivists, and public broadcasters, and the nonprofit institutions of which they are a part.

Section 504(c)(2) provides that, where such a person or institution infringed copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff.

Note: I have highlighted certain sections of the U.S. Code applicable to the vast majority of copyright infringement extortion emails.

Key Points to Note:
1. The vast majority of public citizens and businesses do NOT purposefully go out looking to steal photos or other people's IP willfully with an intention to steal or break a contract.

2. The vast majority of victims are a one-woman/one-man show or a team of two to three at most, and they do not have the necessary resources (time and budget) to hire lawyers, accounts, tax professionals, and copyrights law specialist. They do not have a full-timer on the bench to learn the US Code for Copyrights before starting their business or side-project.

The above point also means this is how innovation, creativity, and entrepreneurship ecosystem flourishes. Majority of individuals and businesses learn and grow with their business and project.

3. The business or individual (defendant's) gross revenue should be a major, major factor in determining the minimum statuary damages.
3a. The net income should be a secondary but also required factor.

For example, an individual or startup's yearly revenue could be $1000 and net profit/loss can be (-$9,000) on $10,000 operating expense.

Right now, it seems, the copyright laws are overreaching and blanket judgment. It almost harms all of us and most severely harms those who are trying to do something with their time, talent, and labor.

Second, the purpose of copyright is first and foremost "protection" to encourage original and creative work. Copyright's goal is to ensure "confidence and hope" in creators, not fear, confusion, and demotivation in the younger generation.

All advancements (including literature and arts) are made possible via human and cross-cultural collaboration. The copyright statutory damages judgment makes perfect sense if someone is willingly infringing your IP and is not cooperating with you by either willingly ignoring you or showing you a middle finger and not respecting your creative authorship and rights.

I rest my case.
« Last Edit: September 30, 2018, 02:12:26 PM by aot »

aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #8 on: September 30, 2018, 11:21:12 AM »
On the side:

Premise: The is nothing "civil" about an independent civilian photographer taking another civilian (photographer or not) for a breach of contract and then using intimidation of court to extort between $750 USD to $30,000 USD.

Anyone reading this, if you have faced an unfair copyright infringement extortion letter, please direct message me. I would like to shoot a Documentary (with the hope of getting it on Netflix eventually). I have my own case to document and I need at least 20-30 other individuals where even $100 USD in fine means skipping a meal because you don't have that kind of money.

Anyone, who is passionate about this BS crap and is an advocate of "Copyleft", please contact me and donate in any ways possible. (You can donate your time, voice, writing, interview appearance, gears, money, and above all your passion).

What percentage of people in the world have net worth >= $750 - $30,000 USD?
  • According to Oxfam, a leading poverty-fighting organization, ~ 3.6 billion people who make up the poorest in the world, survive on less than $2 per day.

Focusing on America -
  • Most Americans will spend at least one year below the poverty line at some point between ages 25 and 75.
    Americans living in "near-poverty" and "below-poverty" is around 100 million (that's roughly one-third of the U.S. population)

Source 1: https://talkpoverty.org/basics/
Source 2:  Haymes, Stephen N.; et al., eds. (2015). Routledge Handbook of Poverty in the United States. London and New York: Routledge. p. 7.

PS: I'll direct message the forum members in the coming weeks to gauge interest. I am also Googling and contacting every person and organization who has ever faced these copyright harassment.

I also wonder how come no one from this forum has ever thought of fighting this scam in a criminal court. At least is there a thread where ideas are brainstormed?

If you want to see positive change, there are two ways to tackle this --
1. Seek criminal actions against copyright trolls (Getty, Pixsy, et. al. as well as photographers who have made more money from litigation than selling their photos.
2. Seek to push for amends to copyright laws.

One tiny reform at a time. So, since we are based in the US, I am focusing on US Laws. And, by focusing on only digital photos and copyright infringement of digital photos freely available for download including on websites that list all kinds of photos ranging from public Domain to Creative Commons to Copyrighted works.
« Last Edit: September 30, 2018, 02:20:26 PM by aot »

DavidVGoliath

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #9 on: September 30, 2018, 02:19:21 PM »
DvG, I have two questions for you:

1. Do you think the current copyright laws are clear, concise, and most importantly fair (with no room for improvements)?

That would depend on the relevant jurisdiction :)

Laws are always evolving, but are often far slower than business practices and technologies change. For the past few weeks, I was very actively involved in the discussions and debates regarding the amendments to copyright laws in the European Union, where I live. I am both a creator and consumer of copyright works, and I know there is a fine balance between the interests of the public and those of property owners - a balance that was amply described in the United Nations Declaration of Human Rights as Article 27.

By discouraging and scaring common people here on this forum, what do you gain? Boost to your ego? Satisfaction of trolling? Or do you feel smart thinking, I am a contrarian.

I don't believe I'm discouraging or scaring anyone; I offer up counterpoints and opinions from the perspective of an active creator working in the visual arts field. If I think that someone posting here may have a flawed opinion, I may choose to reply to them if I feel I have pertinent facts or other information of relevance. Like I said in an earlier posting, you would likely be surprised that I have more in common with many of the people posting here than I have differences.

For example, you clearly do not have my interests at hand. So why do you expect I engage with you? Or anyone for that matter. In this fight, I have my skin in the game. You don't.

I have skin in the game every single day because I believe in fighting for the rights of all creators, so as to ensure that their work is not used without their permission and/or fair payment or, at the very least, on terms that are freely negotiated by all parties in advance, and not the "better to ask forgiveness than seek permission" modus that has become increasingly commonplace over the last twenty years.

If someday you can understand this basic principle, you may very well be surprised by discovering many other better things are out there that deserves your limited time on this planet.

Being an advocate for the arts is, as I see it, a perfectly fine use of my time.

DavidVGoliath

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #10 on: September 30, 2018, 02:46:27 PM »
If you want to see positive change, there are two ways to tackle this --
1. Seek criminal actions against copyright trolls (Getty, Pixsy, et. al. as well as photographers who have made more money from litigation than selling their photos.

You're getting a bit tinfoil-hat there... the ability to seek redress for civil grievances is one of your First Amendments rights. Laws exist to serve as mechanisms to right wrongs, but also to deter (not prevent) acts from occurring in the first place. With respect to copyrights, there is sufficient case law to support this view

"[The infringer] cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law.”, Iowa State Univ. Res. Found., Inc. v. Am. Broad. Cos., 475 F.Supp. 78, 83 (S.D.N.Y.1979) aff'd, 621 F.2d 57 (2d Cir.1980)"

2. Seek to push for amends to copyright laws.

A sound proposition and this very thing is playing out right now - see https://judiciary.house.gov/press-release/judiciary-committee-to-hold-hearing-on-copyright-small-claims-legislation

aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #11 on: September 30, 2018, 09:39:16 PM »
..the ability to seek redress for civil grievances is one of your First Amendments rights. Laws exist to serve as mechanisms to right wrongs, but also to deter (not prevent) acts from occurring in the first place.

Nice try. You are covering half of the perspectives here. The other half you are missing is systemic abuse, intimidation, and extortion.

I have read your earlier posts in other threads and I am aware that the photographers are the ones pulling the litigation shot. You have a three way evil conspiray here:
  • Software companies like Pixsey, PicRights, etc. advertising make money from your couch
  • Photogarhers (lazy customers who are pathetic but wants money because everybody got bills)
  • Lawyers (the ones having the last laugh calling the victims imbecile)

Quote
"[The infringer] cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law.”, Iowa State Univ. Res. Found., Inc. v. Am. Broad. Cos., 475 F.Supp. 78, 83 (S.D.N.Y.1979) aff'd, 621 F.2d 57 (2d Cir.1980)"

Agree. (plus that's obvious, for example, parking tickets could be $25 for a $2.50 parking meter).

Quote
"...obey the copyright law.”
Question: If I have successfully obeyed the copyright laws 999 times and failed to notice one time where a CC photo got slipped into my twitter, and upon notification, immediately rectified my error, in that case, am I a copyright laws obeyer or a "gotcha victim"?

Most victims never wanted to buy or license that damn photo or whatever anyways. My whole point is majority of pissed ELI members are pissed because they feel personal injustice from this whole gotcha business model.

If you are even a good enough photographer or artist, then don't be a coward and ask the infringers, hey, you want to buy my photo or license it. It's only $10 a photo? If the infringers ignores you, then by all means, go after them for that coveted $30,000 honeypot. In that case, those infringers rightfully deserve it.

Life Lesson for all loser photographers: Making money is hard work. Directly seeking statuary damages for $750 (split between Pixsy and you) is a shameful way to buy your next camera.

Instead, become unique, get better, learn marketing, build a real business, and don't spend your days harassing other humans.

There is competition out there. May be you should NOT be a photographer. Stop bullying. Make money in ways you can proudly tell your kids.
« Last Edit: December 06, 2018, 11:09:51 AM by aot »

Ethan Seven

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #12 on: September 30, 2018, 11:24:37 PM »
$750 is harsh minimum for a $10 image, especially if you are someone who is a good player who properly licenses material 99 percent of the time. 

I do get how many rights holders get frustrated with the staggering percentage of infringements and that there are substantial costs involved in detection and enforcement efforts

In this case, no law firm is involved, so the costs cannot be that high.  I would offer something north of $300 and south of $600.  If they litigate, they will have to explain why they refused a very reasonable offer.  Many judges will not award attorneys fees if the plaintiff rejected reasonable offers prior to litigation. 

All that being said, Pixsy cannot sue you.  The copyright holder would have to find a US based law firm to handle it.   You can gamble and see if it gets escalated to a law firm.  If it does not, you are off the hook.  If it does, the demand amount will probably double or triple. 
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

DavidVGoliath

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #13 on: October 01, 2018, 08:35:10 AM »
Question: If I have successfully obeyed the copyright laws 999 times and failed to notice one time where a CC photo got slipped into my twitter, and upon notification, immediately rectified my error, in that case, am I a copyright laws obeyer or a "gotcha victim"?

A single instance of someone discovering that you breached their license terms does not automatically mean that every single other published image you have made use of is non-infringing. I'd bet good money that if you fully audited 1,000 pictures to ascertain if you are wholly compliant with their license terms (as published across all your vectors e.g. website, blog, social media etc.), you'd find far more instances where you're breaching the terms of the license.

You've said that you outsource a lot of your work to third-parties; have you laid down strict rules/terms with them in your contract? Are you confident that they are always following procedure, and have you negotiated a "hold harmless" clause, where they pick up the cost of any legal claims their actions expose your business to?

Since your business is ultimately legally liable for the actions of your employees or contractors, it's incumbent on you to perform a level of diligence and the occasional random audit too.

Lastly - and though this is rare - it will sometimes occur that third parties offer images with CreativeCommons licenses that they have not authored i.e. they find pictures elsewhere and then distribute them as CC works. Again, it's on the user to perform a due diligence and keep track of where images were sourced, and under what licensing terms.

Most victims never wanted to buy or license that damn photo or whatever anyways.

... yet they were happy to make use of it when they thought there were no cost or consequence for doing so? Sounds a lot like "Not sorry for breaking the law, just mad at being caught"

My whole point is majority of pissed ELI members are pissed because they feel personal injustice from this whole gotcha business model.

And this is where our opinions will differ vastly. From the creator's perspective, actively keeping track of licensed and unlicensed uses of their work is simply a necessary part of doing business in the digital age. It's not a business model in of itself, merely one of the inevitable consequences of the internet age.

Personally, I'd be quite happy if my works were only used by my paying clients, even if that meant a decrease in revenues over time and/or the eventual cessation of my business in the event my services were no longer in demand.

However, if someone makes a value judgment that my photograph fits their needs for publication, then I have a reasonable expectation to be paid for their use of my work. It is a principle that, at its foundation, is no different than any other person, whether self-employed or an employee, expecting to be paid when someone else makes use of their time or skills.

If you are even a good enough photographer or artist, then don't be a coward and ask the infringers, hey, you want to buy my photo or license it. It's only $10 a photo? If the infringers ignores you, then by all means, go after them for that coveted $30,000 honeypot. In that case, those infringers rightfully deserve it.

I can't speak for other photographers, but the above is almost exactly the process I follow except when the infringer is an entity that regularly licenses images e.g. newspapers, media companies and so on. For the latter, I almost always refer the issue to legal representation in the relevant jurisdiction/country.

For everyone else, my base licensing rates for editorial images start at around €100, and commercial/promotional uses start in the mid-three to low-four-figure range. I don't pluck arbitrary numbers out of thin air, since I rely on FotoQuote to price my licenses. I also have a client base who pay my asking rates, so I have ample evidence of my loss of income, should it come to that juncture.

These facts aside, I'll tell you this: most of my polite and cordial messages, summarised as "Hey, you used my work - but you'll need to pay for doing so", elicit the following replies

Around 30% will apologize immediately and offer to pay - and I'll send an invoice/license to them, allowing continued use, along with a bespoke replacement image file with embedded copyright management information and a specific filename (this helps me track licensed uses of my works and, if an infringement of that file occurs, I can trace it back to the licensed source)

Perhaps 20% will say "whoops, sorry - we've now stopped using it" and then either plead poverty and/or say they're unable to pay the full fee. Depending on circumstances, I may entertain a lower-than-standard-rate payment or drop the matter entirely, but that is wholly contingent on communications being sincere and courteous.  With that said, on two occasions where I have dropped a claim, the same entities infringed on different works at a later date. "Fool me once..."

40% will cease using my work and not reply at all - forcing me to escalate the matter. Of these, perhaps half end up getting legal representation, kicking matters into the negotiation phase. At this juncture, I'll be weighing up litigation, and I'll be seeking significantly more than the licensing fee alone since I have had to incur additional costs at this phase.

9% will cease using my work, flat-out refuse to pay, and be... let's say grossly unprofessional or reckless in their responses. These are immediately passed over to a law firm, which usually results in either a relatively quick (6 ~ 18 months) settlement, or initiation of litigation.

1% will continue using my work and again be grossly unprofessional in their replies. I litigate every single one of these rare instances, and have not lost a single claim yet.
« Last Edit: October 01, 2018, 10:46:22 AM by DavidVGoliath »

aot

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Re: Creative Commons Photos on Facebook, Twitter, etc.
« Reply #14 on: October 01, 2018, 10:01:56 AM »
Before I debate further, I want you to know that I am 100% in agreement on the below. And, I am a little surprised and actually happy to see this from you.

That said, if you were a slave owner, you would always see some good in owning slaves and therefore prefer laws that protected slave owners. Likewise, since you are a (professional?) photographer, you will always be biased towards photographers in general because you guys are making easy money harassing and intimidating, and threatening lawsuits on people.

Quote
I can't speak for other photographers, but the above is almost exactly the process I follow except when the infringer is an entity that regularly licenses images e.g. newspapers, media companies and so on. For the latter, I almost always refer the issue to legal representation in the relevant jurisdiction/country.

For everyone else, my base licensing rates for editorial images start at around €100, and commercial/promotional uses start in the mid-three to low-four-figure range. I don't pluck arbitrary numbers out of thin air, since I rely on FotoQuote to price my licenses. I also have a client base who pay my asking rates, so I have ample evidence of my loss of income, should it come to that juncture.

These facts aside, I'll tell you this: most of my polite and cordial messages, summarised as "Hey, you used my work - but you'll need to pay for doing so", elicit the following replies

Around 30% will apologize immediately and offer to pay - and I'll send an invoice/license to them, allowing continued use, along with a bespoke replacement image file with embedded copyright management information and a specific filename (this helps me track licensed uses of my works and, if an infringement of that file occurs, I can trace it back to the licensed source)

Perhaps 20% will say "whoops, sorry - we've now stopped using it" and then either plead poverty and/or say they're unable to pay the full fee. Depending on circumstances, I may entertain a lower-than-standard-rate payment or drop the matter entirely, but that is wholly contingent on communications being sincere and courteous.  With that said, on two occasions where I have dropped a claim, the same entities infringed on different works at a later date. "Fool me once..."

40% will cease using my work and not reply at all - forcing me to escalate the matter. Of these, perhaps half end up getting legal representation, kicking matters into the negotiation phase. At this juncture, I'll be weighing up litigation, and I'll be seeking significantly more than the licensing fee alone since I have had to incur additional costs at this phase.

9% will cease using my work, flat-out refuse to pay, and be... let's say grossly unprofessional or reckless in their responses. These are immediately passed over to a law firm, which usually results in either a relatively quick (6 ~ 18 months) settlement, or initiation of litigation.

1% will continue using my work and again be grossly unprofessional in their replies. I litigate every single one of these rare instances, and have not lost a single claim yet.

Now, please allow me to explain my position.

Most of the victims are mostly bloggers or small business owners (mom and pop type stores, services, etc.)

The problem is you are carefully ignoring the time and money cost of auditing each and every photo. Plus, there is also genuine negligence when it comes to what is FREE and what is Not-Free when you search on Google > free to use.

Almost 100% of small businesses are started with little or no money. This forum doesn't get Hilton and Amazon representatives fighting the injustice of copyright trolling. The people who come here are generally amateurs and first time offenders.

It will also help you to understand, first and foremost, that majority of these people are not trying to steal your photos but they might be overwhelmed and overburdened. Heck, they may be even totally ignorant. They may have broken the law without even realizing it.

A good society flourishes when people coordinate and support each other, not file civil lawsuits against each other to fight for pennies like street dogs.

Your battle should be for overall copyright reform where creativity is promoted not restricted. I stand for copyleft. I also would support any movement to limit the statuary damages reach, reduce the minimum fine, and remove the compensation for legal fees.

Then, it's a fair battle between two civilians.

For, soloprenuers/civilians vs. a large corporations, a different sets of rules should apply.
« Last Edit: December 06, 2018, 11:16:20 AM by aot »

 

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