My proposed Getty letter response and settlement offer

[Matthew Chan]

What is innovative of providing the links with prices is that they are market comparables to the infringed images. No two houses are the same in the real estate world but you pull in market comparables of similar houses to determine value.

Demonstrating market comparables within the letter is certainly extra work but I like it as this has not been really discussed before.  We have discussed what the market price is but part of that is assembling the price of the same exact image. In the absence of access of the same exact image, you get similar images.

We all know Getty Images has jacked up their pricing structure on their main website to coordinate with their collections team.  Whereas, their other sites like iStockPhoto sell dirt-cheap images.

It is true, that there is an infringement, but the legal team at Getty knows it is a wet dream to think they would get anything near the astronomical and asinine numbers that are quoted by McCormack and everyone else. Innocent infringement is $200.  Maybe less since there will be minimal damages and the value of the image is so low.

And of course the $15/hour collection clerks have an answer for everything.  They are drinking the company kool-aid.  That is why the uneducated, uninformed, and ignorant get victimized by these collection clerks.

Regarding the links to the other images you provided, I tried that one myself. Getty responded that other images don't matter, that this issue involves the image you infringed with, the Getty image we have rights to, blah, blah, blah.

They have legitimate and honest answers evasive misrepresentations for everything, and if they don't they just ignore those points in your letters.

[Mulligan]

Matt, I'm looking forward to the day one of those interns gets fed up with being a copyright troll who is making so many lives miserable.

On that day, I hope that person will come to ELI and provide all the dirty details about what has to be a totally awful and spiritually deadening job.

I can't even imagine how I could look myself in the mirror every morning knowing that I was going to spend the next eight hours lying to people and doing everything I could to try extract exorbitant payments from them for, in so many cases, frivolous images worth less than $2.00 on the open market.

[timtime]

I'm wonder if it makes sense to include this line at the bottom of my reply "This email is sent pursuant to Federal Rule of Evidence 408."

From what I can tell, there is nothing in my letter which would hurt my case should it ever get to a court, and more likely, the content in it which would help establish that I made a reasonable reply and good-faith effort to their initial letter.

What do you think?

[SoylentGreen]

Most regulars of the forum know that I'm not normally in favor of communicating with the trolls.

However, if people do choose to communicate with them, I feel that a professional "The image has been removed because of alleged copyright infringement claims"... then indicate that you may consider making a "reasonable offer" with the stipulation that they forward proof of an actual copyright infringement against Getty.

They'll tell you to "buzz off" when you ask for proof, and in doing so, they've ended any negotiations themselves, in spite of your efforts towards a reasonable offer.
Then, they've pretty much screwed themselves.

S.G.

[Peeved]

Most regulars of the forum know that I'm not normally in favor of communicating with the trolls.

However, if people do choose to communicate with them, I feel that a professional "The image has been removed because of alleged copyright infringement claims"... then indicate that you may consider making a "reasonable offer" with the stipulation that they forward proof of an actual copyright infringement against Getty.

They'll tell you to "buzz off" when you ask for proof, and in doing so, they've ended any negotiations themselves, in spite of your efforts towards a reasonable offer.
Then, they've pretty much screwed themselves.

S.G.

For what it's worth, I feel the same. "No condom, no nooky". They will keep trying however to screw you.   

[SoylentGreen]

This is quite correct, Peeved.
Indeed, unless there's some "material fact" to prove that it's not the alleged infringer's website, or that they (Getty) don't represent the artist anymore, the accused will keep receiving extortion letters.

However, it appears to me that most folks seem quite compelled to write to Getty and argue their position.
So, if people want to write, my advice is to keep it to the minimum that I mentioned, and leave it at that.
That is, leave it at the point wherein they refuse to provide proof of their allegations and/or refuse a reasonable settlement.

S.G.

[Matthew Chan]

Wow, you read my mind. I was thinking to myself that it would really be gold for an "insider",  "whistle-blower", or disgruntled employee to approach ELI to share their story of how it looks from the "inside".

I normally don't go out of my way to speak to people I don't know, about ELI-related matters anymore unless they make an ELI Contribution or someone has very significant information.

I would roll out the red carpet to hear from a disgruntled Getty employee or other insider. I am hopeful one day someone will step forward.

Matt, I'm looking forward to the day one of those interns gets fed up with being a copyright troll who is making so many lives miserable.

On that day, I hope that person will come to ELI and provide all the dirty details about what has to be a totally awful and spiritually deadening job.

I can't even imagine how I could look myself in the mirror every morning knowing that I was going to spend the next eight hours lying to people and doing everything I could to try extract exorbitant payments from them for, in so many cases, frivolous images worth less than $2.00 on the open market.

[Matthew Chan]

It certainly doesn't hurt. I say go for it.

I'm wonder if it makes sense to include this line at the bottom of my reply "This email is sent pursuant to Federal Rule of Evidence 408."

From what I can tell, there is nothing in my letter which would hurt my case should it ever get to a court, and more likely, the content in it which would help establish that I made a reasonable reply and good-faith effort to their initial letter.

What do you think?

[timtime]

@SoylentGreen: I really like that dead simple response approach.

I have spent days finding comps and taking screenshots to justify a $1.67 fair market price (vs. their $720) and reading the Advernet decision, where I should have just written a simple letter saying "send proof that you manage the image and that I am infringing and I'll consider making a reasonable offer." So brilliant. I'm happy that I haven't sent my letter yet and can modify it to this.

I'll be here awaiting your reply, Getty troll:
http://www.renttherunway.com/sites/all/modules/custom/ckeditor/ckfinder/userfiles/images/Roger%20Sterling.jpg

[SoylentGreen]

If Roger Sterling got an "extortion letter", he'd laugh, show it to Don Draper (pour a stiff drink), ask Getty for proof and then sleep with the wife of Getty's CEO.

Lol.

S.G.

[Matthew Chan]

Agreed.  It makes my eyes roll when people say they will continue to reply as much as necessary for 3 years until the statute of limitations runs out.

At some point, you have to make a stand (after covering yourself doing the the requisite due diligence, of course)

Debating back and forth with collection clerks endlessly is a waste of time here.  People keep forgetting they are dealing with peons who really have no real authority.

This is quite correct, Peeved.
However, it appears to me that most folks seem quite compelled to write to Getty and argue their position.
So, if people want to write, my advice is to keep it to the minimum that I mentioned, and leave it at that.
That is, leave it at the point wherein they refuse to provide proof of their allegations and/or refuse a reasonable settlement.

S.G.

[timtime]

@Matthew: but I've read from you a few times that you don't think it is wise to ignore the charges all together. It really comes down to, then, the character of the first (and potentially only) reply.

As it turns out, I just discovered that my site is likely covered by the Safe Harbor Provision of the Digital Millenium Copyright Act. Since I allow anyone to signup, create pages, and add/edit content (all via a custom Django CMS), Getty needs to send me a takedown notice. My only requirement is to take down the allegedly offending image. No harm, no foul. Win.

[Jerry Witt (mcfilms)]

The Safe Harbor clause of DMCA is tricky, but that's part of what I used to get Getty off my back. It may be hard to argue this if it was part of your site's theme or something you uploaded. However if it was uploaded by a visitor, then by all means use it.

This is a good article:
http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/

[Matthew Chan]

What I said is to not ignore it.  At the same time, that doesn't mean debating and writing them back and forth every month for the next 3 years either.

Let me clarify. I don't have a set number but my own experience says 3-4 responses is probably enough. IN my case, I was "lucky" enough to respond only twice before Getty Images left me alone.  If they had escalated it to a collection agency or attorney, I would NOT have ignored them. I would have responded to them a couple of times before stopping as well.

@Matthew: but I've read from you a few times that you don't think it is wise to ignore the charges all together. It really comes down to, then, the character of the first (and potentially only) reply.

[Robert Krausankas (BuddhaPi)]

AS MC says the DMCA is a bit tricky and I think to have the safe harbor, you have to have a registered agent, and the DMCA policy clearly posted and available.You may consider doing this at some point to have yourself covered for future issues.

@Matthew: but I've read from you a few times that you don't think it is wise to ignore the charges all together. It really comes down to, then, the character of the first (and potentially only) reply.

As it turns out, I just discovered that my site is likely covered by the Safe Harbor Provision of the Digital Millenium Copyright Act. Since I allow anyone to signup, create pages, and add/edit content (all via a custom Django CMS), Getty needs to send me a takedown notice. My only requirement is to take down the allegedly offending image. No harm, no foul. Win.