NEED VERIFICATION

[MIKEZ909]

Hi All,
I have been a casual reader of this forum for some time due to a similar issue I have had.I noticed some things since I last read this forum several months ago.
At one point in time oscar had stated that since 2005 Getty Images has not filed one lawsuit.Then I remember reading that they filed one or 2.Now I read that they have filed about a dozen or so.
Is this not something you were able to verify prior  ? I understand you claim this site isn't for "legal advise" per se,Just information but wasn't that something you could and  should have verified before posting?
I also notice that your contention has always been these images are not registered and claim that the only lawsuits they have filed are for 20 images plus.How can they file without them being registered? And if those 20 plus image cases are registered .what are the chances that someone  used images of that volume and all just happen to be in the few percentage that are registered?
I also noticed on the main page there is introduction which shows link to www.avvo.com which I am assuming is where mathew first heard of Oscar I was reading Oscar answers on the link below and noticed that there was a copyright attorney Daniel Nathan Ballard who answered just below one of oscar's responses who applauded Getty for this program.Is there any merit to his statements?

http://www.avvo.com/legal-answers/cease-and-desist-letter-received-from-getty-images-5053.html

[Matthew Chan]

I can answer some of these issues.

First off, as you indicated, the information we provide is not directed legal advice.  We provide information openly free of charge.  We share information as we get it and have time to share it.  This is not a full-time job for anyone.  No one is making money doing this.  I have said more than once I just as soon not have gotten my letter but I got dragged into it and here we are.  It is a joint effort where everyone contributes information as they voluntarily do so.

Second, you have to realize there are 50 states in which a lawsuit could theoretically be filed.  And within each of those states, there are district courts within each state.  Assuming there are two district courts within each state (some have more, some have less), there are 100 databases to go through.  With every company, there is the possibility of slight naming variations (or even misspellings) of a company.  This does not factor in any human clerical errors that may come up.

Given this, no one has devoted the full resources necessary to absolutely, positively verify every permutation, circumstance, or search that could come up.  Having said that, Oscar told me he did some basic searches in areas that Getty would LIKELY file suit and found none at the time.  Keep in mind NO ONE else had made any attempt whatsoever including me.  Since then, he discovered a few more.  I believe he might have made a clerical error or it was a simple human oversight.  Bottom line, a mistake was made and we have corrected ourselves as time progressed.

Keep in mind, Oscar got involved to help way before anyone officially hired him to represent him.  He got involved as a favor to me after he decided I was not a complete kook and also did some independent research to find out the full extent of the Getty controversy.

I have heard similar comments from a few others on why certain arguments or positions have seemingly changed over time.  This is because we are dealing with a live issue.  We are adjusting to new information and responses as we get them.  Some information cannot be made public due to confidentiality issues.  Other information cannot be made public simply because Getty (as opponents) do not need to know certain things.  After all, they operate in corporate secrecy whereas we operate relatively openly.  Why should we reveal to them all we know on this website especially when they have taken such a hard-line antagonistic stance?

People want absolute answers but there are none because no actual case has been tested thus far otherwise Getty would have jammed this information to everyone far and wide.  There are only positions and arguments on both sides.  Everyone can pick and choose their position and arguments.  I picked my position way before I met Oscar and he got involved.  My core arguments have largely remained the same but have been refined and improved by my working relationship with Oscar.  I also have the benefit of being both a plaintiff and defendant (with and without an attorney) in court so I have an idea how the court system works.

I started this website (and subsequently this discussion forum) because there was no organized effort in the U.S. to deal with what I call the "extortion letter" issue where people are coerced to cough up money based on a threatening letter.  It also preys upon most people's ignorance of copyright laws.  Oscar and I have done our best to provide a good public service.  But are we perfect?  No.  Do we provide everything everyone would want?  No.

Remember, we are hitting a moving target.  Getty continues to do its thing, everyone responds in their own way.  We get new information and feedback and we adjust.  That is all we can do.

Regarding the responses from Daniel Nathan Ballard, his opinion is his opinion.  There are merits to his argument but obviously I still don't buy into them.  He might be very smart and very right but it would have to be proven to me in a court of law.  I may not be an attorney but I am an independent thinker with my own position.  There are arguments to made to defend yourself and fortunately, for me and hundreds of other people who have visited this site, Attorney Oscar Michelen agrees with this.  My question to anyone is if you are inclined to believe Daniel Ballard or anyone that takes Getty's position, then don't fight it.  Pay what Getty wants, call it a day, and get peace of mind.

If you believe and want a workable defense, you will come to this website and get educated.

My core message to anyone who wants to fight back is they must first grow a backbone and then know how to use it incorporating some intelligence and education that supports YOUR side, not your opponent's side.  In this case, I do not think it behooves a defending position listening to an attorney that supports the OPPOSING side.  Sure, you can read it, digest it, and extract the good stuff.  But at the end of the day, only YOU can decide what position you want to take.

I cannot speak for Oscar but I am sure he read Daniel Nathan Ballard's responses since it is on the same line of discussion at AVVO.  By Oscar's own actions and ongoing participation here, I think you can safely say Oscar did respectfully take Mr. Ballard's comments under advisement and proceeded on to maintain and argue a defensive position to assist the underdogs in this fight.  If Oscar believed the "other side", I suspect Oscar would not be maintaining his presence here on this website and discussion forum.

MatthewC

[MIKEZ909]

I understand your perspective.

Obviously just looking at Oscar and Daniel  as 2 intellectual property attorneys on paper look impressive.Oscar based on 16 years of experience and Daniel based on amount of his practice dedicated to intellctual property.  Interesting how 2 men versed in the same laws can have so different an opinion.I think one of my fears is that judges ( while versed in the same laws) can also have a difference of opinion as to what constitutes
"willfull infringement".

 Looking back on it I had no reason to believe the image needed a license.I did what most others do when enticed by imagery on the internet,I right clicked and saved.Did I know I was stealing? No.But in another sense I knew the image wasn't mine.SO i guess that should have been my first clue.

The internet makes things intangible to the point that most people become numb to the cyber crimes they commit. When P2P sharing first came out some people realized right away that it was wrong while others probably didn't realize it was the same as walking into a store and stealing a CD off the shelf.

I guess one of the things I would be curious of is are there court districts that tend to "favor" right click = innocent?

[Oscar Michelen]

Hey Mike:

Thanks for the post.  I of course was aware of Daniel Ballard's post. I remind you that even his post was a just a quick forum response to the general issue not a fully briefed, written out legal opinion. From his other posts on Avvo, I can tell that Daniel is a highly capable, experienced IP lawyer.  In fact, very often whichever of us answers an Avvo IP questions first, is followed by the other saying I agree with the prior post, so we agree much more often than not. He has referred readers to some of my posts for answers and I have sent many readers to some of his posts for answers.  We also do not disagree on the law  on this issue only on the manner in which Getty is responding to this issue. As I have said many times over, Getty is not doing something illegal, it is just overbearing and high pressure. I think if I were to chat with Daniel for awhile we would see more eye to eye on this.  It is Getty's demands and there refusal to cut a break to small Mom and Pops that had no idea they were using someone else's images that disturbs me the most.  You don't need to swat a fly with a machine gun.

As to the lawsuits, most of them were defaults or were settled without an answer being put in  and then the terms of settlement were confidential. And as Matt correctly states, we are constantly updating and revising our info based on what is happening right now.  Our statements were accurate to the best of our knowledge at the time of their posting. You are also correct that Getty cannot sue without registering the images and they do indeed register before filing the suit. They still seek actual damages in the suits because at the time of the infringement the images were unregistered. As time passes on and Getty continues this program, there may be infringement in images Getty has registered (as is the case with almost all of the Masterfile claims as Masterfile registers all its images upon acquiring the rights to the images)

I also think it is important to note how Getty has changed its position over time. Its initial letters spoke of statutory damages and legal fees and now they are only seeking actual damages; NCS recovery used to talk about putting people in collection and trying to collect a debt, now they recognize they cannot do that and are "attempting to settle a claim;"  Getty then went on to state they were looking for "multiplier damages" then when our letters began contesting that, they withdrew from that argument as well. So Getty is indeed changing its arguments as we continue to address them.  

Can a judge see things Getty's way, of course, in litigation anything can happen, but I believe Getty will not be looked on favorably if they continue to insist on damages to which they are not entitled. Go on their own site and use their image price calculator and you will see that for a two year license on a website it comes up to $600 or so. Now of course no small company would pay that when you can acquire images for $5 to $50 for the same use, but even using Getty's numbers why do they insist on twice that in their letters when they are only entitled to actual damages? And how about the claim by photographers that Getty is readily licensing their images for $2  to some end users? And what about folks who did not use the image for two years? If you only want the image for a few months, the pricing scheme drops down to $49? So why is Getty insisting on $1,000 even when they have no proof of how long the image was up and you can prove the image was only up for two months or so? And what about folks who purchased the image from web developers who gave them a warranty of originality? It may be legal but is it FAIR to treat those end users the same.  Shouldn't they be given a break under the circumstances? Don't you think a court will take all of this into consideration? I certainly do and you can look at how the recording industry cases were treated.  

Finally, it is important to note without getting to into legalese, that Getty is relying on a claim of actual damages based on what they call a retroactive license - meaning the copyright holder is awarded money based on an imaginary license they negotiated backward with the user. Not all Federal courts have recognized this type of actual damages claim and there is not exactly a ton of case law showing what its limits are. I think Getty is putting  a lot of eggs into this basket and if they are right OK they win, but most of these small businesses will just close and not be susceptible to collection of a damages award as they own nothing but their name. But if Getty is found to only be entitled to $200 or less per image, then their whole program is in jeopardy. That's why I think it is in both sides interests to negotiate reasonably taking all of the various arguments into account and realizing that every case is different and some people are entitled to a second chance.  I hope cooler heads will prevail.

[Lettered]

Oscar,

I noticed that MIKEZ909 was worrying about whether or not a judge would find "willfull infringment".  The way I understand it, if the image was unregistered when the infringement began then this is moot ... because "willfull infringement" is only assessed to determine statutory damage limits which arent awardable with images not registered before the infringment began.  Even attorney's fees and court costs arent awardable in this type of infringement.  Is this correct?

[Oscar Michelen]

That's correct lettered. But its hard for a judge to overlook how a person got the image and it may unintentionally influence what a judge awards on actual damages. Also in court, I would like to argue that it would be unfair to award more in actual damages than a judge would have awarded in statutory damages. If a judge would be inclined to reduce statutory damages to $200 based on the innocence of the infringement then he should cap actual damages to that amount as well. To do otherwise would be to reward Getty for not registering their images by giving them more under actual damages than they would receive under statutory damages. While the statute allows entities to choose between statutory and actual damages, so that someone who might get more under actual damages can do so, that contemplates that the person had registered the work before the infringement. The whole purpose of denying statutory damages in infringement of non-registered works is to encourage registering works. This is novel argument but I think it has a good basis to it.

[MIKEZ909]

I don't see why any "artist" wouldn't. Is it truly that expensive to copyright something?

[Oscar Michelen]

No it costs less than $50 to copyright something if you do it yourself, but multiply that by thousands and thousands of images and soon you're talking about real money.