Hello and I just got a letter from Getty

[Matthew Chan]

One idea I like was originated by April Brown regarding involving the FTC in determining how copyright infringement claims should work.

There are a set of rules set by the FTC that Debt Collectors follow. It seems like a logical extension that the FTC could be convinced to change how copyright infringement claims should work.

I believe there has to be sufficient mass to compel change.  The biggest copyright extortionists are those involved in the P2P/Bittorrent realm right now.  I follow FightCopyrightTrolls.com and DieTrollDie.com as they are ELI counterparts in their own specialties.

The good news is that judges are getting fed up with the P2P/Bittorrent abusive lawsuits. That gets so much attention, it drowns out the extortion letter dilemma.

Well after searching the forum I see that the idea of a class action suit is hardly new. It's hard for me to believe it would be considered legal to be basically harass people they know they have no legal claim against just to extort money, as this case pretty well is an example of, as well as mine - so I would think it would be possible to make a case for damages in those cases.
But I'm not a lawyer so i'm sure Oscar would know better.

[SoylentGreen]

Great point made my April/Matt!!  ...and it's made in a "got Getty letter... wut do?" topic.
Perhaps, stock images houses and lawyers shouldn't be in the "debt collection" or "alleged debt collection business at all"?

S.G.

[Moe Hacken]

alanspicer, just wanted to let you know that modifying an image does not get you off the hook. It has to be modified practically beyond recognition. Fair use includes other "safe harbors", but that's not really one of them.

Even if it's modified, a "derivative work" constitutes an infringement. Copyright law is a form of strict law, as Oscar has explained, so the degree of modification has little to do with whether or not an infringement has occurred. To use the trespassing analogy Oscar put forth, you can't argue that you didn't trespass because you only got one foot into someone's private property and kept the other one outside, or that you ran in real quick and then ran out.

I've heard all kinds of myths about "percentages of modification" to justify the use of a copyrighted image. This is nonsense at face value: How can you measure the percentage of change you made to an image that accurately?

Here's what constitutes "fair use":

http://www.copyright.gov/fls/fl102.html

This article raises more questions than it answers. Item no. 3 in the descriptions of "fair use" is what leads people to believe that modifying an image beyond a certain point is "fair use". The trolls call it a "derivative work" (read: infringement) even if it's a 5% match, and PicScout technology can detect it even beyond the normal perception of a human being. The trolls like the stricter standard set by PicScout because it widens their potential victim demographic.

So the "fair use" concept only works as a defense in court, and one that has to be disputed for virtually every specific allegation. In my opinion, even if your blog is commercial, you only used the image incidentally to illustrate a point. The image was not being distributed or sold for profit, nor did you it add any real commercial value to your blog or business. In fact, the point you wanted to illustrate had nothing to do with the image whatsoever. A flat-color background would have served the same purpose and would not have gotten you into trouble.

Then the question is "how could you have known?" This is where I get really concerned. It seems the standard is grossly unfair and asymmetrical because it's very difficult for you, the end user, to know you're committing an infringement. Should that not then be considered an inherent form of "innocent infringement"? I would like to think so.

I like April Brown's idea that Matthew brings up in his comment. There needs to be some regulation to make the copyright protection process more symmetrical: A more level playing field, if you will.

[Jerry Witt (mcfilms)]

The way I see it, Getty is attempting a little "Double dipping." That image was (presumably) bought and licensed by Microsoft to be used a desktop background. He licensed Windows and took a picture of his computer's screen running the software and he happened to choose an image (almost at random it sounds like) that is from Getty.

How would that be different than a Tshirt company licensing a picture of a lighthouse for use on a shirt? If you take a picture of yourself wearing this shirt and post it on the web, the only thing you are violating is good taste.

This may not be "fair use" but it is a clear cut case of de minimis infringement.

[Moe Hacken]

alanspicer, a couple of quick questions:

1) Can you find out what the pathname was for the image? Was it something like C:/user/Public/Public Images/Sample Images/... ?

2) Can you locate the image itself? There are several images on the Getty Image catalog with similar titles. If you can locate the actual image file in question, please right-click the image and pull down the pop-up menu to "Properties". On the Properties window, there is a tab named "Details". Click that tab and see if it provides the Author and Copyright information.

Please let us know if you can find this information. I'm curious to see if this gives us some clues about the actual copyright holder. I found a similar image on a recent version of Windows 7 but I don't think it's the same one because it's not on the Getty catalog. The one I found was attributed to "Tom Alphin" and the Copyright is attributed to "Microsoft Corporation", not Getty Images.

It could be interesting if the information provided on the image's Properties panel does not read "Getty Images" or an author matching the image on their catalog.

[SoylentGreen]

I have that image on my HTPC (Win 7) as well...
I'll check it out tomorrow...

S.G.

[Jerry Witt (mcfilms)]

Meanwhile I am circling back to Matt and April's comment about contacting the FTC. I think this is an amazing idea and I'm jammed up through the holiday. But I have a note to myself to try and track down the best point of contact for this.

[SoylentGreen]

The image lists copyright as "Ron & Patty Thomas/Getty".

A case like this is a lot like taking a photo of your new living room suite, and an art print hanging on your wall just happens to be in the photoframe.
The author of the print would never get any money.
Getty will never get any actual traction on this, and they know it.  They're just on their usual phishing expedition.

S.G.

[Moe Hacken]

Thanks, S.G. The copyright information in the image's properties dialog box check out:

http://tinyurl.com/7ckhfxn

S.G., could you tell us if the pathname to the included /Public/Public Images/Sample Images/ directory?

I'm trying to establish a case for "innocent infringement" based on the difficulty of finding out that the image COULD be copyrighted, the difficulty of finding out that the image IS indeed copyrighted, and the confusion caused by pathnames that could suggest "public domain". The directory could be named /Public/Wallpaper Use ONLY/Sample Images/ in order to avoid confusion.

[SoylentGreen]

In my particular case, the image resides in:

c:\windows\globalization\MCT\MCT-US\US-wp2.jpg

S.G.

[Moe Hacken]

Fascinating, S.G. That's not what I expected. I guess the pathname doesn't use the word "Public" as it used to in XP and Vista, where there are some sample images included.

Researching that pathname, I came upon a website that instructs people on how to find "hidden" localized themes for Windows 7 so that ... "You can go in and just grab the Wallpapers" (their words, not mine). Of course they don't mention that you can ONLY use them as wallpaper. See the page at this URL:

http://www.howtogeek.com/howto/3476/access-international-themes-in-windows-7/

Is this an innocent omission on the part of the author? Maybe. However, it becomes a little more interesting when you realize that HowToGeek.com is seeding baitpaper for HAN and VKT. You can see it yourself at this URL, scroll down to see several HAN/VKT images:

http://www.howtogeek.com/howto/41956/desktop-fun-dreams-of-hawaii-wallpaper-collection/

Is this seeding an innocent coincidence? Maybe. But I've sent them not one but TWO comments (which you can add to the bottom of the post) warning them that several of these images are copyrighted and they are causing people to get extortion letters.

Clearly my warnings have been duly ignored since I warned them twice, once on 6/21 and then again on 6/22.

I've given them the information they need to verify the FACT for themselves, and they have chosen not to do anything. I did admit in my comment that I can't force them to take the images down, only HAN and VKT have the right to do so.

At what point do these asshats from HowToGeek.com become liable for seeding copyrighted material knowingly, or giving "advice" that misleads people to commit copyright infringements?

At what point does Microsoft become liable for not making it clear that the wallpaper included with the OS can ONLY be used as part of the OS theme, and that even a screen capture of the wallpaper could result in an infringement? Maybe Microsoft should be made aware of the fact that they're seeding for Getty Images, a direct competitor of their company Corbis.

alanspicer, maybe you could send an email to the legal people at Microsoft explaining your situation. They may not even be aware of what's going on. It would be interesting to see if they care about it or just cover their fannies and shut the door on you by telling you that you should have read the EULA. I don't think you have anything to lose by sending them a friendly email.

Jerry is totally on to something, following April's great suggestion. This has become a serious consumer protection issue. You're not even safe if you buy the image from the copyright trolls themselves! April has been trying to warn people about this but we need momentum. The FTC could get involved on the legal side. Consumer Reports may be interested in covering this as a consumer rights issue as well.

Hey Jerry, how about a cameo appearance by Ralph Nader asking Getty what standard of failure they would accept for their copyright trolling program?

[SoylentGreen]

I believe that Microsoft's license agreement forbids one from using its content (or third party content) in ways other than intended.
Nor would the pathname to where the files are located give one a legal right to use the images in other ways.

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At this point, it's difficult to say if the Tylor/H.A.N. images that you pointed out are a result of their direct act of seeding,
or that somebody else thought that the images were "free" (also due to Tylor/H.A.N. seeding) and placed them on the site.

I did notice that when the third "Hawaiian" wallpaper is clicked on, it goes to another site with a message that it has been taken down due to a DMCA complaint.

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"HowToGeek.com" could be held liable if there was enough evidence.
Right now, there's a tendency for the trolls to go after mom-and-pop end users and bloggers, though.

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It should be noted that there is no legal onus on anyone to warn others as to the copyright status of any content.
It is the duty of the end user to ensure that any content that he/she uses is in conformance of the law.
A company or person that sells a faulty or phony license / product could be held liable, as the consumer did his/her due diligence by obtaining a license in good faith.

---

As usual, the best defense for a Getty victim is to determine that Getty doesn't own the rights to the image.
They usually don't, and that's a fast solution to the problem.

S.G.

[Moe Hacken]

Yes, S.G. Those are the unfortunate rules of the game as they stand now, and thank you for listing those facts clearly to avoid confusion. Those who use images for any kind of web publishing should be aware of every point you make lest they commit an unforced error and get an extortion letter.

The questions I raise are not about legal fact but about fairness to the end user. This is why the conversation April and Jerry have started about involving the FTC is a very positive idea: The rules need to change to create a more level playing field.

We have discussed at length how unwilling HAN and VKT seem to be to address the baitpaper sites, and we suspect the reason is that they benefit greatly from the seeding, whether or not they have any control of it. If it can be proven that they did have something to do with the seeding, then they would probably be guilty of fraud, wouldn't they?

Those would be criminal charges, though, and the standard of proof would be "beyond reasonable doubt". Intent is difficult to prove in a court of law. Difficult, but not impossible. Someone out there knows the truth and may surprise everybody by coming forward.

It appears there's some seeding of the Microsoft wallpaper going on as well, although I doubt Microsoft or Getty are involved. Isn't Microsoft or Getty interested in issuing a DMCA takedown request for the websites that are spreading their images as free wallpaper? One would think so. At least I would think they should be.

[SoylentGreen]

I agree with you.

It's just that it's difficult to make an actual legal defense using moral values. (lol)
People have to understand the issues and make the law work for them.

But, yes, pursuing fairness and getting rid of the loopholes that the crooks use will help in the longer term.

S.G.