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Author Topic: Free Baitpapers  (Read 59947 times)

Robert Krausankas (BuddhaPi)

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Re: Free Baitpapers
« Reply #45 on: January 10, 2012, 05:40:28 PM »
If they were not able to show they were taking steps to rectify the issue, this could certainly be used IMHO
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

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lucia

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Re: Free Baitpapers
« Reply #46 on: January 10, 2012, 05:49:17 PM »
Lettered--
I read the Field v. Google case. I think the analogy is imperfect. Here's why:

I the Field v. Google case, the facts as I understand them is that Field is the plaintiff and Google is the specific defendant. There is no intermediary. The facts indicate that Field knew exactly how the Google bot behaved, knew exactly how to instruct it not to cache and specifically uploaded with the intention that the 'bot would visit and cache the copyrighted content. Then, he sued Google.

So it makes some sense to suggest that Field intended the Googlebot to visit and google to cache. In fact, that appears to have been his main reason for posting.

With regard to the Tylor thing, the chain is much more diffuse.  Presumably at least initially, Tylors intention in uploading to Webshots is to make a little money when people download images. He would likely at least claim this.   But if my notions of how this propagates to Wallpaper sites is correct, after he uploads, multiple their parties who are not Webshots get involved copying and uploading to wallpaper sites. Ultimately, the person HAN sent a letter to copied, and posted the stuff online.

It seems to me whether Tylor granted an implied license to either the Wallpaper site or the person Han is now sending demands to is arguable. I suppose if this gets to court, the argument will be presented. (I think defendant would likely present this evidence and advance an argument.)

 But it's not clear to me that the Field v. Google case would compel any judge to rule that Tylor has granted the defendant an implied license.  (That's not to say the judge might not so rule, I just don't see that the analogy as very strong.)


Robert Krausankas (BuddhaPi)

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Re: Free Baitpapers
« Reply #47 on: January 10, 2012, 05:58:46 PM »
It could be the judge could see it that Tylor knew his images were going on the wallpaper site ( however they got there) but if he did nothing, nor could he show that he at least tried to take action..in other words he just wrote it off as shit happens...then a judge could certainly rule that there was an implied license..either way it can't hurt to have this as part of your defense.
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..

SoylentGreen

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Re: Free Baitpapers
« Reply #48 on: January 10, 2012, 06:08:08 PM »
Pick any 12 of the more popular "Tylor" photos.
Use Google reverse-image search on each photo.
Find nearly 1000 unique impressions of the photos combined on "free wallpaper" sites worldwide.
Take screen shots. Print-out screen shots single-sided.
Pile is 2-and-a-half inches thick.
File for summary dismissal and submit pile of papers documenting the scam
Profit?

S.G.

« Last Edit: January 10, 2012, 06:11:15 PM by SoylentGreen »

Peeved

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Re: Free Baitpapers
« Reply #49 on: January 10, 2012, 06:26:31 PM »
Pick any 12 of the more popular "Tylor" photos.
Use Google reverse-image search on each photo.
Find nearly 1000 unique impressions of the photos combined on "free wallpaper" sites worldwide.
Take screen shots. Print-out screen shots single-sided.
Pile is 2-and-a-half inches thick.
File for summary dismissal and submit pile of papers documenting the scam
Profit?

S.G.

Soylent, you had me at "hello".
 ;D

Extortion-Victim-No Longer

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Re: Free Baitpapers
« Reply #50 on: January 10, 2012, 06:28:31 PM »
Well said...
Kim

lucia

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Re: Free Baitpapers
« Reply #51 on: January 10, 2012, 06:38:41 PM »
File for summary dismissal and submit pile of papers documenting the scam
Profit?

S.G.
Are you merely suggesting it's worth a shot? Or are you an experienced attorney saying you believe you would have a high probability of winning the summary dismissal?
If the latter, could you tell us cases where this worked? Because that's what a person gauging whether or not they are going to implement your plan would need to know before following your suggestion.

Peeved

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Re: Free Baitpapers
« Reply #52 on: January 10, 2012, 07:50:30 PM »
Lucia, are you dealing with a massive amount of images?

lucia

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Re: Free Baitpapers
« Reply #53 on: January 10, 2012, 07:53:19 PM »
You mean in my getty letter? Nope.  The getty image letter I got discusses 1 image and that wasn't ever even stored on my server. 

Jerry Witt (mcfilms)

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Re: Free Baitpapers
« Reply #54 on: January 11, 2012, 03:04:10 PM »
There has been a lot of speculation about how the HAN images got dispersed on so many free wall paper sites. Nobody's really sure and there is a lot of conjecture flying around.

So I asked them.

Here is the content of my letter:

Hi,

I notice that some of the print photographs you sell are available on free digital wallpaper sites like http://www.webshots.com. It seems like some of your artisans are posting their images on these sites and they are offered "Free" or for a very low download price. The exact terms of these "Wallpaper sites" are vague. But many individuals believe it includes permission to use these images on their own web site. This has resulted in several recent "Demand Letters" issued by Hawaiian Art Network for copyright infringement.

Although I am a strong advocate for copyright, this situation has led to a great deal of confusion in the marketplace. Are you aware of this situation? Are your artists at liberty to distribute their images through other outlets? Has H.A.N. contacted these sites and asked them to stop providing these image?

Thank you for your attention to this matter.
 
Jerry Witt


I was pleasantly surprised to get a reply the very next day. The position of HAN tracks with what has been said here. They say they HAVE issued takedown notices (hundreds), but many in the Eastern European sites don't respond. They suspect that originally a hacker gained access to the high resolution images. Once distributed to free wallpaper sites, they spread out widely.

I invited the representative of HAN to join the discussion here and I hope he takes up the offer.

Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

lucia

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Re: Free Baitpapers
« Reply #55 on: January 11, 2012, 03:39:08 PM »
They suspect that originally a hacker gained access to the high resolution images. Once distributed to free wallpaper sites, they spread out widely.
I don't think anything that would be described as "hacking" hacking is required.
Someone whose compute skillzzzz are close to zero could get the images cheaply and easily through Webshots, capture the images, and upload them to a wallpaper site. 

Someone could probably demonstrate this by getting an image from webshots (whenever someone has the time. I'm finishing up a wordpress plugin to thwart 'bots this week.)

Without stating any view about HAN's situation with regard to past letters, in my opinion, at least going forward, HAN should prohibit their artists from making high resolution images available through places like Webshots or similar.    Otherwise, HAN will merely be in the business of working with photographers who behave in a way that guarantees their images will quickly and easily appear on wallpaper sites and who then use HAN to employ picscout, a clerical/legal staff and litigators to pursue the cases in court.  At some point, HAN may find judges see through this strategy and either deem the photographers actions and granting a defacto license and not find copyright violations at all, or keep all fines to the statutory minimum.  In both cases, HAN would be losing a lot of money.

Peeved

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Re: Free Baitpapers
« Reply #56 on: January 11, 2012, 03:44:44 PM »
There has been a lot of speculation about how the HAN images got dispersed on so many free wall paper sites. Nobody's really sure and there is a lot of conjecture flying around.

So I asked them.

Here is the content of my letter:

Hi,

I notice that some of the print photographs you sell are available on free digital wallpaper sites like http://www.webshots.com. It seems like some of your artisans are posting their images on these sites and they are offered "Free" or for a very low download price. The exact terms of these "Wallpaper sites" are vague. But many individuals believe it includes permission to use these images on their own web site. This has resulted in several recent "Demand Letters" issued by Hawaiian Art Network for copyright infringement.

Although I am a strong advocate for copyright, this situation has led to a great deal of confusion in the marketplace. Are you aware of this situation? Are your artists at liberty to distribute their images through other outlets? Has H.A.N. contacted these sites and asked them to stop providing these image?

Thank you for your attention to this matter.
 
Jerry Witt


I was pleasantly surprised to get a reply the very next day. The position of HAN tracks with what has been said here. They say they HAVE issued takedown notices (hundreds), but many in the Eastern European sites don't respond. They suspect that originally a hacker gained access to the high resolution images. Once distributed to free wallpaper sites, they spread out widely.

I invited the representative of HAN to join the discussion here and I hope he takes up the offer.

Yep! Since they are AWARE it seems logical to me that they would be a tad more KIND regarding the "extortion" letters!

NOT!
 >:(

SoylentGreen

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Re: Free Baitpapers
« Reply #57 on: January 11, 2012, 04:05:58 PM »
Lucia had inquired about whether or not I'm an attorney.  I’m not an attorney.
I had thought at length about how to answer her query as to what my opinion was regarding "where or not it's worth a shot", or "what the probability is of winning a dismissal".  Each individual must decide for himself/herself whether or not it's "worth a shot".  But, we can do research and make a reasonable determination.  Now, if something was to go to court, it's often difficult to predict "probability", as a human "the judge" will make a decision based on aguments/evidence.  The following is my thought process.  It's a bit long, but perhaps, there's some food for thought in there.

I’m speaking in terms of US laws/ existing precedents.
Historically speaking, most of the people who paid Getty, Riddick and Righthaven didn’t have to.
Corbis had a good case but gained mixed results, and rumor has it that Masterfile is much better organized than Getty when it comes to contracts/registrations.  I’m a bit unclear on the Masterfile thing.  They may only be filing lawsuits wherein the paperwork is in place; this may give the false impression that everything that they have is registered/under proper contracts.  Most of their wins are on “default” wherein the defendant didn’t show for court.
So, the odds are good that there’s some problem with most infringement claims that should be explored and could possibly be exploited.
---

Your priority in fighting such claims might be as follows from most desirable to least:
1) Make an informal response, and show evidence that causes them to simply go away
2) Make an informal response, and show evidence that causes them to accept a very low settlement.  One so low that the time you saved is more valuable than that of the settlement.
3) In the event of a lawsuit, file a formal defense that causes the plaintiff to give up and withdraw
4) In the event of a strong defense, fight it in court, win, and collect legal fees and other damages
5) In a case wherein you cannot reasonably prevail, pay a the lowest settlement possible in lieu of a larger court loss and legal fees.
---

Fighting these claims is a process.  Collect evidence and find out if there’s a fatal problem with the claim such as:
1) The content was never registered
2) Faulty registration (dates missing, signatures missing, incorrect names)
3) The content was registered by the “original artist”, but there is no “exclusive agreement” in place between the artist and company (agent).  Or this agreement is faulty.
4) The registration was made in “bulk”, that is, many items registered together as a collection
5) Registration not made within lawful time limits

The above examples will kill a case in the US.  That doesn’t stop ignorant people from filing lawsuits in some cases.  File for “summary dismissal” and site precedents.  If it does go to court, at least you’ll win and collect your legal fees if applicable.  Except in “scorched earth” near-criminal situations such as Righthaven.  Note that court precedents currently exist for the above list.
---

Other fatal problems.  These are situations involving mistakes or even fraud which make even the possibility of a claim invalid:
1) Outright fraudulent claims (the image didn’t even appear on your site, or the image only similar and not the same).
2) Companies or individuals impersonating artists/ agencies/ companies/ lawyers and sending forged correspondence/fraudulent claims.
3) Misrepresentations of law, for example situations wherein Getty makes accusations of infringement over linked images not actually residing on the server/domain of the accused person/company.
---

Things that might kill or at least give leverage in negotiations or reduce awards in court
1) The images are widely available as “free” (the more the better for the defendant)
2) The images are widely available as low-cost “clip-art” (non rights-managed)
3) The infringement had low exposure (hit count), low resolution, small image size, was on tertiary web pages.
4) The same images sold on multiple sites by unrelated companies
5) Only some rights assigned (but not others) in an “exclusive contract” between an artist and agent.
6) It was “fair use” under the law for registered educational/non-profit organizations.
7) The web site was not commercial, or didn’t make much money.
8 The defendant was unemployed or unemployable, and the web site didn’t make much revenue
---

Things that people do to avoid payment/court in a worst-case scenario:
1)  In the case of a corporation, ensure that the company has little assets left by the time collection efforts are made.
2) Personal bankruptcy
3) “Disappear” in order to avoid service of court papers (somebody did that in a Corbis case).
---

Where to begin?  Here’s what you do:
1) Assess your risk tolerance.
2) Assess your budget
3) Go through the lists above and highlight any points that might apply to your situation
4) Collect all evidence that you can to support what you’ve highlighted
5) Determine if the evidence strongly supports your defence(s)
6) You must now decide if your defence and corresponding evidence support your desired outcome from the very first list.

If your accuser will not provide evidence of their claim, do realize that they’re holding out because they do not have enough evidence to support their claim. Be patient.   The accuser must present their evidence before the commencement of any court case.  So any evidence will have to be presented eventually.  Next, reassess your strategy as you receive any new information.
If new evidence becomes known that isn’t favorable to your defence, keep in mind that you may make a settlement at any time if that’s in your best interest.

S.G.

Jerry Witt (mcfilms)

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Re: Free Baitpapers
« Reply #58 on: January 11, 2012, 04:42:20 PM »
Good job. This "Strategy Guide" should be linked to on the first page under the heading "Help I got a letter! What do I do now?"
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

Robert Krausankas (BuddhaPi)

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Re: Free Baitpapers
« Reply #59 on: January 11, 2012, 05:08:51 PM »

So I asked them.

I was pleasantly surprised to get a reply the very next day. The position of HAN tracks with what has been said here. They say they HAVE issued takedown notices (hundreds), but many in the Eastern European sites don't respond. They suspect that originally a hacker gained access to the high resolution images. Once distributed to free wallpaper sites, they spread out widely.

I invited the representative of HAN to join the discussion here and I hope he takes up the offer.

I too am surprised you got an answer, I wonder if we'll get a visit from someone from HAN at some point. You would think that as a good measure / business practice they would cut some slack to the "innocent infringers" that have stumbled upon these images and used them.... As much as I hate to say it, and maybe I'm wrong, but I still think they see this as an easy way to generate revenue, by using extortion like demand letter scare tactics. and this goes for all of the copyright trolls out there, not just Hawaiian Art Network.

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..

 

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