ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: alanspicer on June 27, 2012, 04:07:19 AM
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I'm just basically introducing myself at this point, not asking for help specifically. I've viewed some of the content on this site and it is much appreciated. I found this site in a google.com search and it has been very helpful so far. I know not to bother Mathew or Oscar from the forum threads that I've read already and the videos that I have watched. I want to do my own homework on this thing as much as possible. And I don't want to bother M or O until I can find the money to be able to use their services IF I need them. I do want to reserve that option though.
On my blog I had posted a screen shot back in August 2009 of a Microsoft Windows 7 RC that I was playing with and I made some commentary on that and other events that were going on at the time regarding Windows 7 release leaks and such. The desktop background (customizable obviously within Windows) was something called "Pemaquid Lighthouse and Cliffs Maine" from the included "United States" desktop backgrounds ... so it's easy for someone who has Windows 7 to see this image as you can turn it on at any time. The images rotate on release version that I have now, not sure if it did so in the RC that I had back then.
Anyway after some fear, uncertainty, and doubt (FUD) which I am sure they wanted ... I called them on the phone and explained what it was. But I had to ask them what URL it was on - because they didn't send that in the letter. But seeing the photocopied small representations that they included in the letter it looked like my blog ... and I pretty much knew it was a Windows desktop screen shot of some sort. I didn't know when or where it was on the blog though. I got the D. Bieker guy ... He wanted my email address so I gave it to him. They initially wanted $875.00, but sent me an email after the phone call with the typical "FOR SETTLEMENT PURPOSES ONLY" header with a new offer of $675.00. Of course "This offer is made conditionally and it will automatically be withdrawn if full payment is not postmarked by July 05, 2012."
Anyway I've looked around and I can find that image all over the Internet - mostly as Free Desktop Backgrounds - but also in other photo posting sites that allow users to post their own collections. That's not how I got it, and I didn't know that until today. But I will be using the plain blue desktops if I ever make Operating System screen shots again.
* Anyway hello everyone ...
Alan Spicer
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you are on fairly good grounds here!, and welcome to the forum BTW. First order of business would be to advise them you will NOT be aepting any emails over this issue or phone calls, require they send everything US mail..In other words make them WORK for this.. If it was a screen shot on a blog you were commenting on , chances are it falls under "fair use"...I would start learning about this first!.
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Welcome, alanspicer. There is some good information on the forum from about 3 years ago. There were similar problems with the wallpaper that came with Vista and it was discussed in the forum at that time:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/windows-vista-sample-images/
If you use the search bar at the top of these pages to search for "windows wallpaper" you may find other information of interest regarding "baitpaper" websites.
This also speaks to the issue of End User License Agreements (EULAs), which most of us click through without really reading their contents. Many of them are incredibly long and cryptic. If you look through the Windows EULA document that comes with the OS disc or the computer, it probably has some mention about those images buried deep in the legalese.
Do any of you have the EULA for Windows 7? It would be interesting to take a peek to see if there's any mention of the included "sample images". I think a case could be made that Microsoft is not showing good faith by essentially including "baitpaper" in their software on behalf of Getty or anyone else.
Also worthy of consideration: Bill Gates apparently owns Corbis. Ahem.
http://chzmemebase.files.wordpress.com/2011/01/memes-make-billions-keep-hair-cut.jpg
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Welcome to the forums alanspicer!
I agree with BuddhaPi, this appears to be a case of fair use. If you are unfamiliar with it here is a link that may be helpful
http://en.wikipedia.org/wiki/Fair_use
I would read this article and send them a letter telling them you were commenting on this and it falls under fair use and possible look up and cite some fair use cases. It sounds like you are off to a good start, keep reading and asking questions if there is something you don’t understand as there are a lot on very knowledgeable people here. Don’t let them rush or hurry you with these artificial deadlines they impose trying to panic you into paying. Good luck and please keep us posted!
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From Windows & EULA:
Icons, images and sounds. While the software is running, you may use but not share its icons, images, sounds, and media. The sample images, sounds and media provided with the software are for your non-commercial use only.
https://docs.google.com/file/d/1Vw2SQGlLSdr_Cs6RT4jKJib3eylSEVPcS2z6BJoRy45Y1PYd5Z4vfijAf4nP/edit?pli=1
Citing case law in a response is a good thing, and since getty just loves to use deadlines, I would consider throwing back at them...explain your case and that it fall under fair use, give them 10 days to respond or it will be considered that this matter is closed and over with.
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While I agree with Buddhapi and S.G. that your case should be considered "fair use", I bet I can tell you what Getty is going to be responding with: The terms of use were violated.
Out of curiosity, I decided to search for the Windows 7 End User License Agreement on the web, where it was readily available at:
http://tinyurl.com/75woesg
As Buddhapi mentioned, this is section 3, item (c):
c. Icons, images and sounds. While the software is running, you may use but not share its icons, images, sounds, and media. The sample images, sounds and media provided with the software are for your non-commercial use only.
However, they would be totally wrong. Your particular use was not commercial. Under the fair use guidelines provided by the U.S. Copyright office, your use has been defined as allowable by precedents set in case law:
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Source: http://www.copyright.gov/fls/fl102.html
Their legal department should be aware of this, but you're probably getting letters from clerks at this point. From what you wrote, it sounds like they're not even being very specific about what has been infringed, when it was infringed, or how.
S.G. is right, their deadlines are moot. They're just trying to scare you into paying them some money they are not due because they assume you're ignorant about the law and will pay out of fear. Once they realize you're not going to roll over for their fatuous claims, they'll probably squirm away. They don't have a track record of taking people to court for such a small amount of money, so the odds are very much in your favor.
S.G.'s suggestion is good because it lets them know you're not ignorant nor afraid of their posturing. The more you read about it, the more you will feel that your position is indeed much stronger than theirs.
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Forgot to mention, I like Buddhapi's suggestion to give THEM a deadline to respond to you, about as long as the one they're giving you. That will reinforce the notion that you're not afraid of their nonsense and that you're calling them on their bluff.
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For some reason this forum and the entire website are unavailable to me for periods of time. Is that normal? I did detect a DNS abnormality for awhile the web site with www could not be resolved in DNS but it could without www. The web site was still unavailable either way. By the time I check AT&T (Bellsouth) actual DNS servers it was resolving in both of their servers. But this web site still wasn't working. I came back after a bit of cleaning house and it's back working.
Anyway ... I checked on US Copyright web site and I am unable to find a registration for that image by name "Permaquid Lighthouse and Cliffs", nor by the original artists name(s), nor by Getty Images. So I guess like many others it is not registered. That might mean very little, but means something as I have read on here already.
In my opinion the image was modified (fair use stuff ...) two times. Once as a Desktop theme image for Windows 7 with icons and stuff on top of it from Window OS, and again by me by screen shotting it ... and using it as an article by me talking about the Windows 7 RC version.
My Blog is commercial, I don't know if that matters, as a small business in yacht internet connection consulting and equipment sales. I post a lot of things on the blog including a lot of IT and Networking related articles, as well as my Ham Radio adventures. The article in question had nothing to do with business it was just an informational article - like many of mine are. That article became old news whenever the next RC release came out or when Windows 7 was released. And nobody I'm sure cares about it 3 years later. I made no money off of it ... I don't sell Windows products. I have installed Windows and sold computers with Windows already on it and have done consulting and repairs on computers.
Anyway it just amazes me that they came after me for an image of a Windows Desktop with that image as the Wallpaper. It's not like I went looking for an image and did a cust0om wallpaper. It comes as a pre-installed theme. I have my Ham Radio mast and antenna as my Windows 7 wallpaper now :-) My own photo.
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@alanspicer I haven't really experienced outages here on the left coast. On rare occasion the site might be down for maintenance, but I can still get to to the maintenance page.
In terms of your situation, you have to do what you are comfortable with. I know if it were me I'd tell them to eff off. Seriously. You take a picture of your computer running MS software and they are coming after you for infringement? This is the problem with them relying on software like PicScout. It finds an image match and gets the ball rolling. I used to assume that a human being would actually verify the validity of the claim. But now I'm starting to think that this whole racket is an automated cash grabbing machine.
If you really feel like tweaking their noses a little bit, you might ask them if you should contact Microsoft to clarify if you are allowed to take screenshots of your computer if it happens to display one of their images. I wonder how Microsoft, who presumably licensed the image for use on your computer, would feel about them hounding you?
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I know if it were me I'd tell them to eff off. Seriously. You take a picture of your computer running MS software and they are coming after you for infringement? This is the problem with them relying on software like PicScout. It finds an image match and gets the ball rolling. I used to assume that a human being would actually verify the validity of the claim. But now I'm starting to think that this whole racket is an automated cash grabbing machine.
The way this company harasses people, for frivolous reasons - they seem to be ripe for a class action lawsuit. Does anyone know what would be involved in that? It certainly seems like we have enough "class members" in this forum alone.
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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.
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I know if it were me I'd tell them to eff off. Seriously. You take a picture of your computer running MS software and they are coming after you for infringement? This is the problem with them relying on software like PicScout. It finds an image match and gets the ball rolling. I used to assume that a human being would actually verify the validity of the claim. But now I'm starting to think that this whole racket is an automated cash grabbing machine.
The way this company harasses people, for frivolous reasons - they seem to be ripe for a class action lawsuit. Does anyone know what would be involved in that? It certainly seems like we have enough "class members" in this forum alone.
I think an industry has been created ... a market ... that someone can lock up. It's big business, no doubt. And who's going to argue over enforcing copyrights ... certainly not the photographers. But I doubt that the actual image owners realize that they might be being sold down the river along with the rest of us in the name of huge corporate profits. But hey, class action might still work. I think I would join the class. Who is selling who down the river I am not saying. This was just a generalization in line with the topic matter of this forum and web site.
PicScout - an Israeli company - the one that makes the technology available to find alleged copyright infringed images - was purchased by Getty Images. That should tell you how big it is. Probably thought to be akin to the Industrial Revolution ... make it possible to find the infringements automatically ... every-Image-body and their Image-brother will want to be a customer. (Actual Image owners) Not knowing how the actual cases are being handled is the "Don't talk to the man behind the curtain" of the 2000's. <- Hopefully that was enough of a paraphrase of the old Oz movie to not be considered infringement by someone.
Build a better mouse (alleged image infringement) trap and the world will beat a path to your door.
The Picscout inventor or starter ... get's his Exit Strategy and probably a Motor Yacht and a Mansion ... and we are just Road Kill on the Information Beltway. I didn't say Superhighway ... is that copyrighted?
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@alanspicer I haven't really experienced outages here on the left coast. On rare occasion the site might be down for maintenance, but I can still get to to the maintenance page.
In terms of your situation, you have to do what you are comfortable with. I know if it were me I'd tell them to eff off. Seriously. You take a picture of your computer running MS software and they are coming after you for infringement? This is the problem with them relying on software like PicScout. It finds an image match and gets the ball rolling. I used to assume that a human being would actually verify the validity of the claim. But now I'm starting to think that this whole racket is an automated cash grabbing machine.
If you really feel like tweaking their noses a little bit, you might ask them if you should contact Microsoft to clarify if you are allowed to take screenshots of your computer if it happens to display one of their images. I wonder how Microsoft, who presumably licensed the image for use on your computer, would feel about them hounding you?
Thank you for your response. It just happened again in the middle of posting on here. In another IE window the site was reloadable. (conspiracy theorist go away :-)) Funky things with DNS or IE quirks, I dunno.
Thanks for your other comments on my case ... I concur ... thanks for the feedback.
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I know the class action question has been brought up quite a bit and I wondered the same thing myself when I first received my letter but I don't think we'll see a suit in the states in the near future. Unfortunately, it is my opinion that while unethical, what Getty is doing is inside the law. However, I feel strongly that we can fight back by filing complaints with the Atty. Gen.'s office and the BBB. I do want to clarify about filing a complaint with the Atty. Gen. you should not do this just to file a complaint, as Matthew has said you must truly believe that you have been wronged and be willing to sign your name to the complaint. Don't put anything in the complaint that you would not want anyone else to read as all complaints at the Atty. Gen.'s office are public. Perhaps if enough complaints reached the Atty. Gen. about Getty they will investigate it.
There is a class-action lawsuit against Getty that is just been filed over in Israel and you can read about it here.
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/class-action-suit-filed-against-getty-images-master-delegate-in-israel/
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.
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alan, welcome to the forum.
If you get as fed up as many of us here with Getty's mass mail money printing program, don't be afraid to tell your story on video to Jerry Witt(mcfilms) who is considering doing a documentary on this colossal waste of human activity and brain power.
Maybe if we make enough people aware of the injustice, including clients of Getty's like Microsoft, someone will find the legal line on the class action suit to make this all go away.
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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.
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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.
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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.
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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.
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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.
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I have that image on my HTPC (Win 7) as well...
I'll check it out tomorrow...
S.G.
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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.
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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.
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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.
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In my particular case, the image resides in:
c:\windows\globalization\MCT\MCT-US\US-wp2.jpg
S.G.
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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?
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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.
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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.
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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.
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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.