Got the Getty extortion letter grrrrrrrrrrrr

[perplexed]

 

First, thank you for this forum and web site! I sincerely appreciate your support and commitment to helping the little guy against Getty's extortion tactics. What they are doing is WRONG

They are demanding $1,350 for a single image they allege was in a 100 pixel area on the main page of a web site that gets an average of two visitors a week! Alleged image is size of a postage stamp. Alleged image is not on the web server anywhere. Alleged image is non existent even in the snapshots on Wayback Machine. So if it ever was on the site, it was a long time ago.

They attached letters showing they attempted to contact a ways back. Letters show alleged infringement. Looks like they sent letters to an old address. Further, in the letter the incorporated company that built the web site is referred to as the defendant. That company closed its doors 2 years ago. Totally defunct now.

How can anyone be expected to pay these bullies $1300 for an alleged image on a tiny hobby web site no one but a few people have even seen? What is wrong with Getty? What kind of profiteering criminals are running their company? Is Getty where all the Enron thugs transferred to?  This is an outrage.

What can I do?

Thank you

[stinger]

I am not a lawyer but I believe that the statute of limitations may be your friend here.  The statute runs three years from the time that Getty first discovered the "illegal" use of the image.

My advice is to save the oldest sample letter you have.  That date would mark the latest possible date from which the statute could run. 

You should take your time and read as much of this forum as you can to get educated on the issues.  Do Not rush to do something because of some arbitrary deadline or threat that they pose.  These are artificial, but they make them sound real and threatening.

Your options will readily become apparent as you get educated.  Most people, willing to fight, choose one of the following three:

• Do nothing - Ignore their attempts to communicate with you and let the statute of limitations put an end to this game.
• Write back, using snail mail, (to build a file in case this ever goes to court) asking them to prove that they control the image in question and that they are asking a fair and reasonable price.  They usually talk around the subject in an attempt to get you to pay, but they often raise the ire of people like you leading to complaints with the Better business bureau, congressmen, various legal bars and associations.  These complaints do reflect poorly on them, and it is the hope of many on this forum that one day the sum total of these complaints will get someone in power to change the laws and put an end to this practice.
• Ante up $200 and enroll in Oscar's letter program.  You will likely never hear another thing from Getty, their attorneys, or their collection agencies.

Only you can decide which of these options is best for you.

[perplexed]

Stinger, thanks so much. I have so much stress over this.

So does anyone know the success rate in Oscar's program? I don't want to pay $200 only to have to pay Getty  eventually if he can't get this shut down

[Robert Krausankas (BuddhaPi)]

Stinger, thanks so much. I have so much stress over this.

So does anyone know the success rate in Oscar's program? I don't want to pay $200 only to have to pay Getty  eventually if he can't get this shut down

There have been ZERO lawsuits filed, Oscar has handled well over 800 of these letters. Some have chosen to settle, most have not. The 200.00 is well spent knowing that Getty and their pirate associates can no longer contact you..just this alone is worth it..

[perplexed]

Thank you so much for replying.

One other thing: I see they say they can identify their images because of info hidden in the image file. But if the image file was embedded in a Flash clip, the image's info would not be accessible as far as I know. In order to extract it you'd have to decompile the Flash SWF. Seems like a fairly low level operation for GI's web site crawler to perform. And even if they did, there is no trace of that image of the Flash module it was embedded in anywhere on the web server or elsewhere. So all they seem to have is a screenshot? How is that proof that there is infringement? Can they claim infringement on the screenshot alone? Without any proof that there was an actual image and they verified through its meta info that it was theirs?

[Robert Krausankas (BuddhaPi)]

a screen shot is not proof of anything, just that the supposed image may have appeared on the site, it could have been hotlinked from elsewhere, it could have been an ad appearing in a feed...so yeah, screen shots are pretty much useless for all intents and purposes. They have no case and they know it, but they will continue to harass you for your money.

[lucia]

Alleged image is not on the web server anywhere.

If your site is in the US, the fact that the images is not and was never on a web server you control is potentially the single most important fact here.  The issue of hotlinking has not made it to the US Supreme court, but it has made it to the 9th circuit which is 1 layer below.  They ruled hot-linking is not a copyright violation under the US statutes.  There is also a 6th circuit ruling that looks good for you (which I need to hunt down.) So, be very happy.   No way is Getty going to sue you for 1 hotlinked image and if they did, they would probably lose big time.

If you are sure it's not and has never been on your server, we can point you to appropriate fun letters to write tomorrow. You can also contemplate helping Greg out in his campaign to lodge complaints.

Reads as if other factors are in your favor too.   I advise waiting to respond only so that you can write one of the best letters evah!

[lucia]

So does anyone know the success rate in Oscar's program? I don't want to pay $200 only to have to pay Getty  eventually if he can't get this shut down

It's good. But if you hotlinked... you don't need Oscar. (Hotlinking is when the image is on someone elses server and you just had html that caused it to display.)  BTW: statute of limitations is 3 years from the time they find a violation. But hotlinking.... not a violation.

[lucia]

I should add a caveat: If you hotlinked from a site you don't control, you are gold.  Basically: you get to use the letters I wrote to getty roughly 2 years ago.  Or you can be even feistier.

 OTOH, if you have an account of some free photo hosting site, uploaded to your account there and hotlinked from there, maybe you aren't gold. Getty might need to persuade a judge that the Perfect 10 ruling doesn't apply and that the fact you could upload matters -- and it might win such an article But if you just hotlinked from some stray site you have nothing to do with, and your in the US.  You are gold.  More later.

[perplexed]

Thanks for the additional insights.

It may have been "hot linked" from another site . It's also possible that it was embedded/compiled in a Flash module that showed a montage of very small images. But in either case, it never at any time physically resided on the server as a standalone image, and I have 100% validated that.

I have to tell you, Getty's attack on web site owners  is very disturbing. They are not acting as a responsible corporate citizen, a friend to the arts, nor even a defender of artist rights. If their settlement campaign was truly about ensuring artists were compensated, they would simply request the actual amount of the license and perhaps a small administrative fee to cover their costs. Instead they are acting like Somali pirates, sneaking up on ships in the harbor, climbing aboard, pointing loaded weapons at stunned passengers and demanding outrageous amounts of money.

 "You steal butterfly photo!!!!!! Now you pay or I blow your brains out !!!!!!!!! "

"Ok ok ok ok don't shoot me!!!! I'm sorry!!!! I'm so sorry !!!! It was an accident !!!!!! I will pay you for it !!!! No problem !!! Here, here is the money for it!!!! It's yours!!!!!"

"NO!!!!!!!  You pay ten thousand dollar!!!!!! You steal butterfly photo!!!!!   You hurt butterfly all over!!!!!! You monster !!!!!!! Pay now ten thousand dollar or die!!!!!!!! "

Getty mafia. What they are doing is extortion because it presumes guilt without due process, and they demand outrageous sums of money that have no correlation whatsoever with actual "damages." It's pure corporate bullying, exploitation, and profiteering and needs to be stopped.

I have to tell you, I'm absolutely stunned that an American company has made a business out of attacking small business owners, their own countrymen, who are the very same business owners who have made Getty an outrageously rich company. It makes me sad, too. It's sad that corporate greed has reached this level of severity in America.

I will help fight this great injustice any way I can.

[lucia]

Thanks for the additional insights.

It may have been "hot linked" from another site . It's also possible that it was embedded/compiled in a Flash module that showed a montage of very small images. But in either case, it never at any time physically resided on the server as a standalone image, and I have 100% validated that.
[/blockquote]
Hmm...  You're introducing modifiers there.

With respect to the hotlinked issue: By embedded in a Flash module: was the Flash module hosted on your server? If yes, then you won't want to be throwing the "Amazon v. Perfect 10" ruling at Getty.   Because I would call hosting an image by way of embedding it into a Flash module which is hosted on your server hosting the image on your server. With respect to the "hotlinking" issue The issue is: did you copy (from the pov of copyright law)? Or did someone else someone else copy?  Copying it onto a Flash module could still be copying.

(Mind you: you might have a fair use defense. Or a deminimus defense. And all sorts of other things could arise. But "didn't host as image as a stand-alone file on my server" is not the same as "didn't host the image on my server".  And the only really truly "safe" interpretation of Amazon v. Perfect 10 is that if you didn't host the image on your server (or one you control) at all-- not even if you look at it cross-eyed, they Amazon v. Perfect 10 clears you of needing to worry about it any further.

Getty mafia. What they are doing is extortion because it presumes guilt without due process, and they demand outrageous sums of money that have no correlation whatsoever with actual "damages." It's pure corporate bullying, exploitation, and profiteering and needs to be stopped.

Yes. They word it that way. And I disapprove of them. But to some extent, if we can either discuss Getty generally, or your case specifically. With respect to your specific issue:
(a) ultimately, they can't force you to pay unless they sue you and prove their case to a judge. They aren't the judge. 
(b) mind you, if they are right both in their accusation and the law, you might have to pay a lot.
(c) they rarely sue anyway and
(d) if we switch to discussing Getty generally on the thread specifically discussing your case, we'll miss the details that might help you decide what to do in your case.

So: back to the hotlinking.  When you say it might have been in a flash module: did you host that? You aren't required to answer that here and in fact, it may be prudent to not answer it. But you need to understand that copying an image onto a flash module and then hosting the flash module on your server is almost certainly hosting the image on your server from the POV of the law. So in that case, you lose the "hotlink is not copying" argument.

But, if I understand you correctly,  it looks like you probably still have these in your favor
1) Dated materials with time stamps that suggest Getty found this at least two years ago.  If so, the statute of limitations for their filing a suit is short. They have three years. If they don't file before the first date for which you have dated documents in hand, they will lose not because they are wrong on copyright, but because they have to file in a timely matter.

2) You are only using 1 image. So they are unlikely to sue. (This is a very important issue in your favor.)

3) Not sure what happens with the dissolved corporation.  Maybe you would be liable in their place, maybe not. (Of course that would be irrelevant if they can't even be sued.)

4) Irrespective of that- it's possible based on the documents you say you have in hand that they don't know who to sue. In which case, strategically, it might be wise to not respond -- particularly if you think you might be liable in place of the corporation. Their having no idea who to sue would be in your favor (and would contribute to them not suing).

5) I'd tell you to take the image down, but it appears you have?  If it's in a flashmodule which you host, remove that flashmodule from your server. Otherwise, if they know the uri of the flashmodule, they could copy that module. They can also monitor whether the module is there and recopy from time to time to prove that you continue to host a flash module with the image on it even after they informed you of the issue. While a screenshot is not evidence, the flashmodule would be and their stating that they copied it from a uri in your host would be evidence you hosted the image. The screenshot would then indicate you displayed that flash module, and if they have html for the page, they would have stuff that amounts to evidence. So, don't assume that what they show you is the only evidence they could possibly have.  So: if you are hosting the image in anyway shape of form, take that image off your server.

6) You indicate there is no evidence on the Wayback.  That's in your favor. (But do see above.)

7) It might be the case that if you were sued, you would have a "fair use defense". This might be particularly so if the flash video was some sort of spoof, irony, political commentary and the image was somehow used as commentary of some sort.   But we can't know that without seeing the flash video, and all in all, it's cheaper to avoid a suit rather than fight it. So, it remains prudent to take it down. (OTOH, if it's very important to you to keep it up, and you want to defend that and so on, consult with an attorney, show evidence and find out whether you have a good case for fair use and so on.)

[perplexed]

Lucia, thanks. Again, I have no knowledge of the alleged infringement and cannot find proof of it anywhere--other than the pixelated--and, for all I know, doctored--screenshot they sent in their ransom note. I can't imagine a judge would rule in their favor on the strength of that screenshot alone. Look what it takes to prove speeding. People get off routinely for uncalibrated radar guns and a slew of other technicalities that fall within the plaintiff's burden of proof. Seems to me a good lawyer would eviscerate this claim. Unfortunately, it looks as though I'll have to retain one now. It's really too bad. This is a major waste of human time and productivity for all parties.

[stinger]

You do NOT have to retain an attorney, unless they file suit - which they are unlikely to do. 

They make it sound expensive, so paying them seems like the cheap solution.  If you do retain an attorney, make sure you hire one that specializes in this type of law.

Oscar's letter program is a very good value for those who do not have the stomach to fight back.  But Lucia and Robert have given you some very good advice.  When I read it, it screams YOU DO NOT HAVE TO HIRE AN ATTORNEY OVER THIS ISSUE NOW AND YOU WILL LIKELY NEVER HAVE TO.

It takes a while to step back far enough to realize that this letter program is a business for Getty and they put that business at risk by taking people to court.  The letters sound scary, but be sure to step back far enough to see it for what it really is, before doing anything.  That way you are less likely to do something you might later regret.

[perplexed]

Stinger, thanks so much. Can you point me to a resource that explains exactly what steps Oscar takes , what happens next, then what the typical outcome is? I have looked around this site but i don't see anything that spells out exactly what it is. Thank you

[lucia]

Lucia, thanks. Again, I have no knowledge of the alleged infringement and cannot find proof of it anywhere--other than the pixelated--and, for all I know, doctored--screenshot they sent in their ransom note. I can't imagine a judge would rule in their favor on the strength of that screenshot alone.

I'm fairly certain a judge would not do so, particularly not if you confidently stated that that image was never hosted on your server.
 All I'm saying if you say "it might have been in a flash module", the next question become: Do you mean a flash module hosted on your server? 

I like to look at both the "worst that could happen" and "the best that could happen". And, initially, the way you worded things, it sounded as if you could confidently state that the image was not on your server. But your later statement makes it sound like the image may have been inside a flash module and the flash module on your server. That is an image hosted on your server.

One thing you need to remember is that if they sued you, they might have access to the html and other stuff. That is: they could have evidence beyond what they showed you.  So, even if you don't have evidence, they may. Moreover, if they have a screenshot and the most you can say is you have not been able to find evidence you hosted it, that is not as strong as saying you can definitively say  you did not host the image.

Look what it takes to prove speeding. People get off routinely for uncalibrated radar guns and a slew of other technicalities that fall within the plaintiff's burden of proof. Seems to me a good lawyer would eviscerate this claim. Unfortunately, it looks as though I'll have to retain one now. It's really too bad. This is a major waste of human time and productivity for all parties.

Maybe a good lawyer would eviscerate the claim. But that depends on what other evidence Getty has and other factors which likely you don't know or which if you know you have not shared with us.  And if you went to court, a lawyer would be expensive. That said: even if the lawyer did not eviscerate the claim, they would almost certainly get damages demanded by Getty reduced because Getty states ridiculously high values in their letters (and then they generally don't sue. Collecting whatever they manage to collect and not suing seem to be prime features of their business model.)

That said: moving away from "what is the worst that could happen" to "what is more likely to happen", it's unlikely Getty will sue you for reasons stated above. If they don't sue, a lawyer is irrelevant.  But, it's not quite the slam dunk I thought initially-- so it might be that you want a letter writing program. But, if as I suggested above, it's possible Getty doesn't even really know who owned the site, or who to sue, you might not even want that. Also, if the statute of limitation is up, you also don't need a lawyer.  Statute of limitations is 3 years from when they found the image.