For Canadian Extortion Letter Recipients: David Fewer's (CIPPIC) Information

[Matthew Chan]

I started this new thread because we have a fair number of Canadian extortion letter recipients.  For the last two years, I continue to be openly critical of Canadian Attorney Howard Knopf for his uselessness in the effort and his subtle cop-out references to David Fewer of CIPPIC.

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/canadian-letter-recipients-getting-poor-advice-from-blogger/

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/canadians-and-dr-fewer/

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/oscars-letter-program-for-canadians/msg6390/#msg6390

To add insult to injury, David Fewer supposedly helps people via email but appears to discourage others from disseminating or quoting his information for whatever reason.

Moelle apparently received David Fewer's information and openly shared it with the ELI Community. I am uncertain if Moelle posted it with David Fewer's consent or not. I have to believe David Fewer knows about it but has chosen not to make any public comment at this time. Regardless, David Fewer's information made it to the ELI Forums and I am doing my part to help Canadian extortion letter recipients.

I will give David Fewer conditional thanks for putting his FAQ together. But we didn't have to receive this FAQ in such a convoluted way. Given there is no Canadian equivalent of Oscar Michelen or me, publishing reputable information from knowledgeable Canadian professionals is the next best thing.

Overall, it appears David Fewer largely agree with most of the advice given by ELI to U.S. extortion letter recipients.

The original post is here:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-from-start-to-finish/msg8716/#msg8716

However, I have taken the liberty to copy and paste the text from that post here.

The information below was sent from David Fewer Director CIPPIC, the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, University of Ottawa, Faculty of Law.

INTRODUCTION
Stock image companies such as Getty Images and Masterfile have begun contacting small businesses in Canada alleging that these businesses have infringed copyright in their images and demanding payment of very large fees, often in excess of $1,000.00 per image and usually above the stand-along fee for licensing the image.   

This FAQ responds to some of the most frequent questions CIPPIC has received in connection with these practices.

FAQ
1. Do these image companies have the right to make these demands?
Copyright is a property right.  It’s like trespass:  if you trespass on someone else’s property, you are liable.  There is no intent element.  Similarly with copyright:  if you've copied without permission, you've infringed.  You don’t need to register copyright to hold the rights.  There’s no “copyright number”.  All the image company requires to make its claim is to own copyright in an
image, or enjoy an exclusive license to commercialize the image.

There are defenses to liability such as fair dealing, but these defenses don’t apply to the vast majority of cases that we have seen.

2. What about “innocent” infringement? I didn’t mean to infringe copyright – am I still liable?
"Innocent" infringement is still infringement - innocence is only relevant to the damages award.   
 
3. What kind of damages can the image company expect?
In Canada, a copyright complainant is entitled in cases of infringement to elect statutory damages in the amount of $500-$20,000 per instance of infringement.  Generally, a court will try to approximate in statutory damages what a successful plaintiff could have theoretically proven as damages suffered.  This may be, for example, a lost licensing fee.  In most cases, courts are unlikely to award more than the minimum of $500 (per work infringed).   

4. Can innocent infringement reduce the damages I can expect to pay?
Yes:  in cases of innocent infringement, the court has discretion to go as low as $200 per infringement.  The court also has discretion to roll multiple innocent infringements into a single award of $200 for all instances.

5. What kind of cases qualify as “innocent” infringement? 
Where a third party has put you in an infringing position, you would likely have a claim to be an innocent infringer.  For example, if you outsourced development of your website to a third party and that third party supplied the image, you would likely have a claim of innocence.  But if you took the image yourself and just didn’t know someone else owned copyright, that is not innocent.  You’ve simply misunderstood the law.

6. Do I have to take the image company’s demand at face value?
  It is not clear to us that the stock image companies have their ducks lined up properly in all cases.  In many cases, the company has claimed rights in images that Canadian business claims it properly licensed from third parties.  Stock image companies are in the businesses of acquiring images - it may not have kept track of licenses associated with such images.  Accordingly, there appear to be many cases in which the image company is demanding payment for properly licensed images.  In each case, it is important to obtain from the image company the patrimony of each image claimed.

7. How can the image company enforce its rights?
The image company has to sue you in court to enforce its rights.  Note that if the image company does not own copyright in the image, or does not have an exclusive license from the copyright owner, it cannot sue in Canada.

8. How likely am I to be sued for a relatively small amount?
With one exception, we have never heard of an image company going to court for a low dollar figure.  Generally, businesses do not go to court unless it is cost effective to do so – in other words, if the expected damages recovered exceed the (significant) cost of paying lawyers to go to court. That said, it is entirely possible that a stock image company could sue, perhaps to “make an example” out of a particular defender (and so cow other businesses into settling).  After all, who would have thought that the music labels would sue 30,000 music fans for sharing music over file-sharing networks?

The one exception we do know of is Masterfile, a Canadian company.  Masterfile will sue in Federal Court for even a small number of images.  This appears to be part of its strategy to pressure companies into settling.  Masterfile is the most aggressive of the companies engaging in these tactics.

9. The stock image company has given its file to a collections agency – is my credit rating at risk?
Rather than sue, the stock image companies tend to assign the demand to a collection agency.  You should know that this is not a “debt”.  No one can hurt your credit rating here.  Instead, what the image company has is an unproven allegation of a legal wrong.  That's a different bird entirely.  It does not become a debt until the image company sues and receives a judgment, or
until you agree to a settlement figure.

10. I am not a business – does the image company still have a claim?
The image company still has a claim, but you no longer fall among the image companies’ apparent targets.  The image companies target small businesses – companies who are unlikely to fight them because it is cheaper to settle.  The image companies have dropped cases against non-profit organizations in the past.

11. I’ve received a demand – what should I do?
Your first response should be to investigate how you came to have this image on your website.  If you have a license to the image, you should respond to the claimant identifying the image and the license you enjoy. You might consider demanding that the image company prove it has authority to demand the fee by providing a copy of its agreement with the original copyright owner of the photo in question.  If the agreement does not assign copyright to the image company, or is not an exclusive license, the company cannot sue you for infringement. If the claim looks well-founded – turns out you didn’t have the right to use that image, and the image company holds an assignment of copyright or an exclusive license – then you should remove the image from your website.  You then have options on how to proceed.  These options include:

• Accept the fee demand.
• Negotiate for a lower fee.
• Offer a fee in line with what the company could expect for statutory damages (in Canada, $500 per image).
• If you qualify as an innocent infringer, offer the company $200 per image as an equitable settlement offer.
• Tell the image company that the images have been removed and say that ends the matter (and risk being sued).
• Ignore the image company (and risk being sued).

The option you select depends on your risk tolerance and your objectives.

[SoylentGreen]

I disagree with some of this.

S.G.

[Matthew Chan]

I am not giving an unconditional endorsement of every bit of David Fewer's advice but it is certainly worthy enough to read and consider from a Canadian extortion letter perspective.

In all these years, not a single Canadian attorney has offered a bit of legal advice or service to anyone. But that doesn't stop us from cobbling together information and resources to help Canadian extortion letter recipients.

And it certainly doesn't stop me from provide ELI Support Calls either.  I get insights and perspectives everywhere I can and pick and choose what seems to make the most sense.

[SoylentGreen]

Of course..!!  Agreed.

S.G.

[SoylentGreen]

Here are my thoughts (in blue).

1) "if you've copied without permission, you've infringed"
The problem with this statement is that is assumes that your adversary is being completely truthful.
We've proven many times over that those that make a claim of infringement often have no right to do so.

3) "In Canada, a copyright complainant is entitled in cases of infringement to elect statutory damages in the amount of $500-$20,000 per instance of infringement.  Generally, a court will try to approximate in statutory damages what a successful plaintiff could have theoretically proven as damages suffered.  This may be, for example, a lost licensing fee.  In most cases, courts are unlikely to award more than the minimum of $500 (per work infringed)."
In Canada, it is important to note that the plaintiff may choose "damages" (i.e. actual damages) or statutory damages.

4) "in cases of innocent infringement, the court has discretion to go as low as $200 per infringement.  The court also has discretion to roll multiple innocent infringements into a single award of $200 for all instances."
This statement implies (again) that "no matter what you've infringed".  The court may elect to award nothing to the plaintiff.

7) "The image company has to sue you in court to enforce its rights.  Note that if the image company does not own copyright in the image, or does not have an exclusive license from the copyright owner, it cannot sue in Canada."
The company CAN sue if they want to.  There's nothing to stop them from doing so, even if the lawsuit is simply a "scare tactic".

9) "Rather than sue, the stock image companies tend to assign the demand to a collection agency.  You should know that this is not a “debt”.  No one can hurt your credit rating here.  Instead, what the image company has is an unproven allegation of a legal wrong.  That's a different bird entirely.  It does not become a debt until the image company sues and receives a judgment, or
until you agree to a settlement figure."
I'm of the opinion that this is in fact, illegal in Canada.  I will attempt to source this shortly.
That's why Getty uses collection agencies in the United States to send threatening letters to Canadian residents.

10)  "I am not a business – does the image company still have a claim?
The image company still has a claim, but you no longer fall among the image companies’ apparent targets.  The image companies target small businesses – companies who are unlikely to fight them because it is cheaper to settle.  The image companies have dropped cases against non-profit organizations in the past."
If you look at Canadian court dockets, Masterfile has sued private individuals many times.

S.G.