Received Getty settlement email with no information on the infringing image

[ruinedmyday]

I just received a $1000+ settlement letter from Getty/McCormack Legal. They say this is the second attempt to contact me. This is the first I've heard of it. I thought maybe the original email went to spam, but I couldn't find anything.

The email doesn't mention the infringing image on my site. It just links to my site. All of the images used on the site are from WikiMedia Commons. However, users are free to login and submit their own images on their own pages. I imagine it's one of those images.

What do I do? Should I make contact and ask them what image is infringing on their copyright?
If it was posted by a user, doesn't DMCA have me covered for a takedown request before litigation?

Thanks in advance for the help!

[Greg Troy (KeepFighting)]

I would not communicate with them by email, I would only communicate via mail.  Unless they send you a letter I would not respond to them at all, nbut that is just me, you must decide what is best for you.

If someone uploaded the file and you have a registered agent you are protected under DMCA

[ruinedmyday]

Thanks Greg. Would you still not recommend establishing communication even though I don't know what image needs to be removed from the site?
That's my main problem right now. I've spent the last few hours reading the forum. I would like to take the route of just ignoring it, but I want to get the image removed. I don't know what image it is and there are thousands of user submitted images on my site.

[ruinedmyday]

Also, I didn't register for the DMCA protection on my site... Didn't realize you had to. I will be doing that shortly. I'm assuming it's too late for this particular image though.

[Robert Krausankas (BuddhaPi)]

Yes it is too late as far as the registered agent is concerned, but if you allow others to upload images, it's best to spend the money and time and do this going forward.. As far as the image,  I would suggest you remove any and all images that you do not hold a valid license for..In this day and age there are no more freebies..

[ruinedmyday]

Thanks for the reply.

Removing all the images would destroy the site and I don't have money to buy images instead of using the Wiki Media/sxc.hu free ones that I'm using now. 

It's a site I run for fun about animals (I'm trying not to get too specific incase 'they' are monitoring these forums). I make a few bucks from ads, but nothing near enough to cover the cost of the hosting and my time... and this mess is really putting a damper on the 'for fun' part 

As for the user submitted images, I'm going register for DMCA agent to get myself covered on that front.

I'll send McCormack a certified letter this weekend requesting information on the infringing image(s) and proof of copyright ownership.

Not sure what else I can do besides shutting down the site, and that would mean they won.

Also, I contacted my Uncle who is an attorney. He said this was not in his field of expertise, but his tip was to contact them for specific information about the image(s) in question, remove the image(s), and not pay for an attorney of my own unless served.

Thanks again for reading and replying. I'm feeling slightly less sick now.

[Robert Krausankas (BuddhaPi)]

Herein lies the major issue:

"I don't have money to buy images instead of using the Wiki Media/sxc.hu free ones that I'm using now. "

Who's to say that any images I upload to this site are mine? What's to stop me from uploading images that belong to Getty and other stock sites, claiming them as "free to use" or in the "public domain"

There is no such thing as "FREE", unless they are actually "public domain".

according to their wiki page it states:

"As a design resource, the site provides a library of high-resolution, royalty-free photographs which may be downloaded free of charge for use in design projects. Although images are free, contributors still retain moral rights and photographs are still subject to usage restrictions.[3]"

Please don't confuse "royalty free" and "FREE", as there is a huge difference.  Bottom line is, you don't have any idea where these images are coming from, or who owns them, and if you don't have a license in hand to use them, you are at risk of having more issues from other stock agencies as well as Getty images and perhaps even photographers.

[ruinedmyday]

Thanks for the information Robert...
I'll go ahead and remove all the images I used from WikiMedia and sxc.hu. Sounds like some are public domain, but I don't know how to be 100% sure.

I used those photos for the animal category "example" photos. Once someone opens up a category, the user-submitted photos are then shown.

The user submitted photos are "supposed" to be pictures that the owner took of their own pet/animal (but there is no way for me to verify that).

So If I'll redesign my site so that the user-submitted animal pictures are pulled for the main category photo (thus all images on the site are user-submitted), would DMCA have me completely covered at that point?

[Robert Krausankas (BuddhaPi)]

I'm a bit confused here.. If users on YOUR site are submitting and uploading images, and you have a registered agent in place you would be covered.. If the images are being pulled from the wiki or sxc site and YOU are uploading them, then DMCA would NOT apply.
Using this forum as an example if I own the forum, and have a registered agent...you as a user comes along and uploads an infringing image, I as the owner would be covered..however as me being the owner, and I upload infringing images I would NOT be covered by my own ignorance..

Hope this helps..you may want to go do some quick reading on what is required to be covered by DMCA, as there is more than just registering an agent, you have to  qualify with other items as well. You don't want to do it half assed, or you won't be covered.

[ruinedmyday]

Sorry, I'm skipping around to different topics.
I don't currently have a DMCA registered agent. I'm going to get one soon though for future coverage for my user submitted content.

DMCA aside, the images from wiki/sxc are images that I pulled and added to the site for the category example photos. Those are the ones I'm going to remove from the site this afternoon. After that, the only images left on my site will be the user uploaded images.

From what I've read and understand, the DMCA compliance requirements are:
1. The content must be user submitted.
2. I must have no knowledge that the content is infringing and I must promptly remove the content if I become aware that it is infringing.
3. I must not modify the content (I'm assuming automatic upload photo resizing does not count as modification as facebook/pinterest/youtube all resize the submitted photos and videos.)
4. I must not directly monetarily benefit from the infringing content.
5. I need a registered agent and must provide takedown request information on my website.

So once those wiki/sxc images are gone, I'm going to replace them with "the most recent" or "the most popular" user submitted image in that category. So instead of the "Chihuahua" group being represented by the WikiMedia photo of a Chihuahua, I'll just have a script pull the most viewed or most recent user submitted photo of their own Chihuahua. I'll also provide a link to the user's page and credit them for the photo - I'm sure the users will appreciate it and that might help any copyright owners browsing the site to see that the photo was provided by a user (but I'm just guessing here).

Does that sound like a decent plan?

[Greg Troy (KeepFighting)]

I would remove the images or at least hide them somehow until you get a registered agent.  You would be protected from the "Getty Letter" if a user uploaded a copyright image provided you remove the image as soon as you receive the DMCA take down notice.  I do not believe it covers you for images that you download and place on your site.

As far as your main category photo I suggest taking them yourself or getting them from a reputable stock imaging company with no ties to Getty like Pond5, you can get images there that are great quality ranging from 1 to 25 buck easily.

Thanks for the information Robert...
I'll go ahead and remove all the images I used from WikiMedia and sxc.hu. Sounds like some are public domain, but I don't know how to be 100% sure.

I used those photos for the animal category "example" photos. Once someone opens up a category, the user-submitted photos are then shown.

The user submitted photos are "supposed" to be pictures that the owner took of their own pet/animal (but there is no way for me to verify that).

So If I'll redesign my site so that the user-submitted animal pictures are pulled for the main category photo (thus all images on the site are user-submitted), would DMCA have me completely covered at that point?

[ruinedmyday]

Ok, I'm trying to get myself protected from future user-submitted content claims and I just mailed my designation of agent form and the $105 filing fee (this form: http://www.copyright.gov/onlinesp/agent.pdf). But now I'm second guessing if I filled it out properly:

I am a website designer/developer with my own LLC business (just me). I have my own server and I host my own business website, client websites, and my personal "for fun" website (the one that the Getty image was "found" on).

I filed my Web development business as the "service provider" (ie: My Web Design Business, LLC). Under "Alternative Names", I left that blank. I entered my own name, address, and contact info as the registered agent.

The website that the Getty image was "found" on is the personal "for fun" website on my server. The WhoIs information for this personal website is under my name and address also (if that matters).

Am I safe using my business name as the service provider since it's developed by me (the business owner) and hosted on my server?

Should I add this into the footer of my "for fun" site "This free service is provided by My Web Design Business, LLC"?

The reason I'm second guessing myself is because I see most other registrations have the "service provider" as  the actual website name or domain name. But again, my situations is a little out of the ordinary.

From http://www.copyright.gov/onlinesp/:

Definition: For purposes of section 512(c), a “service provider” is defined as a provider of online services or network access, or the operator of facilities therefor, including an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.