Images from RSS - Getty images letter

[mikedrag]

Hi
I have a site where I legally (with permission) take RSS news feed from another site and displays it. Images from RSS feed are pooled from source site (never copied to my servers). I have recently received Getty Images letter demanding settlement for 3 images they found on my site.
RSS news feed is updated automatically. I don't have any way to check every single news article.(it would be worthless as time consuming)
Do I break any copyright rules doing it this way?
On the other hand at the time when Getty images sent the letter my site was shot down already for a month due to other technical issues.
Do they really have a case against me?

Thank you very much in advance for the responses.

Mike

[Robert Krausankas (BuddhaPi)]

From Wikipedia:

"The most significant legal fact about inline linking, relative to copyright law considerations, is that the inline linker does not place a copy of the image file on its own Internet server. Rather, the inline linker places a pointer on its Internet server that points to the server on which the proprietor of the image has placed the image file. This pointer causes a user's browser to jump to the proprietor's server and fetch the image file to the user's computer. US courts have considered this a decisive fact in copyright analysis. Thus, in Perfect 10, Inc. v. Amazon.com, Inc.,[5] the United States Court of Appeals for the Ninth Circuit explained why inline linking did not violate US copyright law:"

there are several posts in the forum somewhere discussing linking to images.. long story short, if the path to the images that Getty supplied you do not point to your domain/server, then you should be as good as gold.

Typically the letter will reference the image in question , as well as the URL to said image..thats where you need to look..if it's different you might consider responding to them , pointing this out and letting them know that you consider this matter to be closed.

[lucia]

You can get an even better source for the Perfect 10 case here:

http://caselaw.findlaw.com/us-9th-circuit/1327768.html

Things to note:
1) The 9th circuit upheld the lower court on the server rule. So both the lower court and the upper court saw things the same way.
2) The 9th Circuit is not the US Supreme Court, so possibly, another circuit would rule the other way. But it would be a perverse uphill battle for Getty, particularly since, depending on your use, it might be fair use even if you hosted on your server.

So, assuming you are in the US, Perfect 10 v. Amazon is the case you would mention.  Do not expect the guys at Getty to immediately slap themselves on the forhead and drop it.    For this reason, I want to report Getty's response to my mentioning Perfect 10 in my first response to Getty.   

In their response to my first letter, Sam Brown, Copyright Compliance Specialist, Getty Images License Compliance wrote

"Copyright law requires permission from the photographer—or an authorized representative of the photographer—before an image can be copied or displayed. In your legal example of Perfect 10 v. Amazon.com it is important to remember that Google and Amazon’s display of the imagery at issue is protected by the DMCA. In this case, however, the DMCA provides no such protection to your organization."

Note: Sam put display in bold. (I had used the word "display" in my first response.  If you use it, it might be wise to use scarequotes "display". That's what the lower court did in their discussions of the definition of "display" as intended in US copyright law vs. every day use. )

My response to this part of his letter was

Mr Sam Brown,

Thank you for your cordial respond to my Nov. 29 email discussing your GettyImages demand letter dated Nov. 24, 2011, which discussed a case your company has assigned a case number 1144-28, and involves an image GettyImages describes as "Catalog Image No eb2511-001". You are correct that I mistook the text of UK law for a portion of US law and so that portion of my response has no relevance.

However, it is still the case that there has been no infringement with regard to the image in question.   I will begin by focusing on this point which I made and which is based on the 9th circuit court of appeal rulings in Perfect 10 v. Amazon :

With regard to the image discussed in your letter, there has been no infringement of US copyright  law on my part.

I believe the substance of what I communicated regarding the meaning of the ruling in Perfect 10 v. Amazon which is, in essence this:   When a site like Google hosts html that instructs a users images in Perfect 10 v. Google and Perfect 10 v. Amazon, my web page included html that instructed a browser to point to an image at a third party site.  Under US copyright law, this action does not violate the display right of the copyright holder and it does not violate their right to copy.

I note you provided your opinion about whether DMCA offers protection to my blog.  I believe introducing this issue is irrelevant to the matter at hand. However, because you brought this up, I believe I need to respond.

First: I have not investigated whether DMCA protects my hobby blog and so do not know whether your interpretation of DMCA and my blog is correct.  I reserve the right to make this determination at such time as it appears to be relevant to any discussion regarding  Getty Images "Catalog Image No eb2511-001".

Second: I have read over both the 2006 Ruling regarding  PERFECT 10, Plaintiff, v. GOOGLE, INC., et al., Defendants from   "United States District Court, C.D. California"  and that regarding Perfect 10, Inc. v. Amazon.com, Inc., et al. 487 F.3d 701, No. 06-55405 (9th Cir., May 16, 2007).   I note that DMCA is mentioned and discussed by the District court in footnote 10 of the District Court ruling where they say,

"Google also contends that it qualifies for protection under each of the four DMCA safe harbors, 17 U.S.C. § 512(a)-(d). In light of the ensuing analysis concluding that Google is neither vicariously nor contributorily liable, it is unnecessary for the Court to deal with the DMCA issues."

The plain meaning of the text indicates that any protection that might have been afforded Google by the existence of  DMCA was irrelevant the courts ruling because Google had not violated any of the copyright holders rights under copyright.  I  have not copied or displayed "Catalog Image No eb2511-001" as those terms are defined by US copyright law  So, whether Google, Amazon or I are or are not protected by DMAC in the event that we might inadvertently violate someone's copyright would seem irrelevant.  I'm puzzled that you brought your opinion about the applicability of DMAC up.

I would now like to point out that in my first letter I also brought up the issue of fair use.  In the event that GettyImages might believe contrary to court rulings that including html instructions to an image at a third party site constituted  infringing use under US copyright law, my particular use would in any case fall under fair use for reasons I mentioned in my first email to you. You have not address this point. 

Because you have so far stated you do not consider the matter closed,  I believe must request information from GettyImages.  While continuing to maintain that I have neither copied nor displayed "Catalog Image No eb2511-001" as those words are defined by US copyright law, I request the following information regarding GettyImages "Catalog Image No eb2511-001" required to ascertain whether GettyImages has standing to pursue any claim or negotiate any settlement and to assess whether the suggested amount of the settlement would be reasonable.

The letter then transitioned to asking for information that might provide me some basis for estimating how much damages might be if hotlinking was an infringement.  But that's not relevant to your question about hotlinking. Perfect 10 is.   

Mind you: I'm not a lawyer. But the footnotes in the rulings make it perfectly clear that while Google and Amazon presented numerous reasons including the possibility that DMAC would have protected them, the 9th circuit didn't say it was ok for Google and Amazon to hotlink owing to DMAC protection. The lower court said they weren't even going to bother to figure out if DMAC protected them because it didn't matter. Hotlinking (i.e. framing) doesn't violate copyright.  (The difference between framing and hotlinking is when framing, Google essentially hotlinks the entire page displaying without copying. In contrast, hotlinking is used when you only hotlink the site.)

Also: In my opinion, if Getty decides to go after anyone for hotlinking, and someone goes to court, amicus briefs are going to come flying out of legal blogs all over the place.  Oh. And Google might not want a hotlinking case to go south in another circuit court.

[lucia]

It occurs to me that in your response to Getty Images you could suggest that since hotlinking is deemed to not violate the copyrights of copyright owners, if they are concerned that people will hotlink their images they should insist those who bought licenses and display the getty images adjust their servers to prevent hotlinking of getty images.  This is entirely possible technically-- it's very easy.

Preventing hotlinking would mean that when someone like you picks up the feed, the images would not display to people viewing your site.  To see the images, people would have to go to the underlying site (e.g. Chicago Tribune or whoever bought the license.)   

Then, if the person who bought the license fails to prevent hotlinking, Getty could go after them for breech of license.  Getty would also save themselves the wasted effort of having Getty staff spend time writing letters and reading response from people who did not violate copyright. 

Also, Getty might want to reprogram Picscout to figure out when they are seeing a hotlinked image. Then they'll know which server actuall hosts the image and they won't waste as much time.

Of course, these suggestions assume Getty wants to send letters to the people who actually displayed copies.

[mikedrag]

Thank you very much to both of you. This was very helpful

Regards
Mike

[Jerry Witt (mcfilms)]

Of course, these suggestions assume Getty wants to send letters to the people who actually displayed copies.

We all know how important accuracy and integrity is to these stock image companies. 

[lucia]

mcfilms--
I suspect that Getty will be loath go after anyone with a license who permits hotlinking. If they did so, their paying customers would dry up because all fall in one of two categories:
1) Publishers who know that some people prefer to read RSS feeds. These publishers know they will lose readers if the readers can't see images in the RSS feeds. If Getty does not permit them to hotlink, they will buy from another agency.
2) Publishers who might be willing to block hotlinking but who live in fear they that a technical glitch will screw up their .htaccess file, hotlinking will occurs and they Getty will send them a demand letter. These people might decide it's more prudent to buy from an agency who does not go after paying customers who fail to block hotlinking.

I suspect that to some extent the reason the district court and 9th circuit did not view hotlinking as "displaying a copy" under US copyright law is that they understand all the things that would suddenly become "displaying a copy" if they interpreted otherwise.  It's also quite clear that in the case where a display is in a RSS feed, interpreting displaying that as copying is ridiculous. 

I'm going to see if I can insert and image (I took the photo) and if I can, I'm going to explain why it would be in Google's interest to spring to the defense of mikedrag if Getty comes after him!

(That's my cat by the way. I have not registered the copyright!)

[Lettered]

I agree that trying to call hotlinking infringment is ridiculous.  In fact it makes about as much sense to me as trying to sue someone for reflecting a picture in their mirror.  And they continue to try to pull that after the courts have told them no . . . amazing.

[Robert Krausankas (BuddhaPi)]

Getty will very likely not  "go after" someone with 1 image! It would not be a money maker for them, plain and simple. You need to remember they send out 100's or even 1000's of letters in the hopes that a % will just pony up the money, and I'm sure they do. Something else to keep in mind is that it is widely known that Getty has been sloppy at best with registrations, the bulk of there images are not registered, why do you think they never show proof, and always say "we'll produce it in court"...cause they don't have it plain and simple... Try as you might to reason with them, but it will go nowhere, they will continue to go thru the usual steps, in the hopes that the fear/stress level will become to much and people will just pay.

[lucia]

Budhappi--
Mikedrag has 3 they found. If he's picking up feeds, he'll likely have more if they look.

But in this case, Getty is wrong for a different reason.  Even if mikedrag's feed reader picked up a million jillions images this way-- the way Google does every day -- even if all Getty's registrations were lined up in a pretty row, even if Getty has the copyright owner suing along side them, even if all contracts are right, if the courts see things the way the 9th circuit did,  Getty would lose in court.   Perfect 10 lost, and Getty would lose.

Also, copyright is one area where the plaintiff can be ordered to pay the defendants court costs. Filing a suit against a hot linker could potentially cost Getty their own court costs and those of the defendant. 

[Robert Krausankas (BuddhaPi)]

Budhappi--
Mikedrag has 3 they found. If he's picking up feeds, he'll likely have more if they look.

But in this case, Getty is wrong for a different reason.  Even if mikedrag's feed reader picked up a million jillions images this way-- the way Google does every day -- even if all Getty's registrations were lined up in a pretty row, even if Getty has the copyright owner suing along side them, even if all contracts are right, if the courts see things the way the 9th circuit did,  Getty would lose in court.   Perfect 10 lost, and Getty would lose.

Also, copyright is one area where the plaintiff can be ordered to pay the defendants court costs. Filing a suit against a hot linker could potentially cost Getty their own court costs and those of the defendant.

I don't think Getty has filed any suits for under 10 images, but don't quote me on that, however I do agree with you 110% that getty has no case, zero, zilch, nada..and this just adds to the idea that they would never go after him or you for that matter, they would loose and that would be "bad for business"

and he may likely have more, depending on "when" they look...

[mikedrag]

It is true, if they look they would probably find more, but i don't have any way to know which ones.
From the letters they sent me I can't even find the pages that they found those 3 (screenshots they sent me are small and blurry and you can't see the exact URL they claim).
If I had to check every single image in RSS feed, might as well hire somebody to do copy and paste then 

[Robert Krausankas (BuddhaPi)]

If you plan on responding to them, the first thing I would request is a clean copy of the complete path to the images in question. Again if this path indeed shows the images being pulled from elsewhere, that is END OF STORY..they know this and may explain why it appears blurry... a screen capture or a copy/paste of a path /URL would not be blurry..

[lucia]

buddahapi-
The url was blurry on the screen capture they sent me also. The reason is that the screencapture reproduced in the demand letter is not 100% to scale.  Because I write a blog whose topic is not birds, and I was able to do a google search on "cardinals". I found page, took out the hotlink and wrote a letter.

I do regret I wrote as quickly as I did.  I should have waited. If so, I would have asked them to tell me the exact URI because now I'm curious about how much information picscout bothers to save!  For all we know, when they write the letter, Getty only has a blurry image, doesn't know the uri of the page where they allege the infraction occurred, doens't have html saved etc. Or they may have it. I'm curious now.

But since they send out letters with such vague detail, if I knew then what I know now, my first letter would have been brief stating that no such image appears on the URI they actually mention. Moreover, it never could have because they have a screenshot of a comments thread and those don't ever appear on the page they mention. Could they please clarify and state the precise URI where they thought the image appeared so I could better understand their concern? Also, could they provide the uri of the image so I could determine whether a copy exists on my server?

Since mikedrag is actually in no danger of Getty being able to prevail, he might want to take this approach. Whether or not he does depends on his personality.

[dieselfish]

@lucia  Your point about what Picscout captures may also be valid in broader terms.  I think you are right about the demand letter writer not knowing much about what Picscout puts on their desk.  In my case MF had a single screenshot taken on a single day - that's it.  They don't know how long the image appeared on the site, or even the URL of the image.  In my case, I was using a low res version (that I did not know had any copyright claims associated with it) for composition purposes as I tweaked the design with my client.  I too divulged too much information in my first response.  I believe that most of the information that they get is information unknowingly offered in recipient responses.  I now feel that a worthy tactic in a first response is to make them show all of their cards - don't offer any information.  They are making the claim - they have to produce the evidence.