Is PicScout Legal? - Cyber Trespass

[phpdeveloper]

I'm suprised this topic hasn't popped up before. The fact that Getty use PicScout that ignores all robot.txt requests and TOS and crawls your website anyway.

My point is if PicScout were to visit your site once a day, your site has 2000 images @ 40kb each - that's 80mb of data bandwith per day.

Also if I website wasn't publicly available (known in the public domain) Getty cannot claim human intervention for they wouldn't be able to view the pages with the infringement.

To quote "Under popular Web convention, such a file - known as robots.txt - dictates what parts of a site can be examined for indexing in search engines or storage in archives."

To quote "There is no law stating that /robots.txt must be obeyed, nor does it constitute a binding contract between site owner and user, but having a /robots.txt can be relevant in legal cases. "

Here's a couple of interesting articles, eBay being the interesting one..

http://pub.bna.com/lw/21200.htm

To Quote

"1. Trespass

Trespass to chattels "lies where an intentional interference with the possession of personal property has proximately cause injury." Thrifty-Tel v. Beznik, 46 Cal. App. 4th 1559, 1566 (1996). Trespass to chattels "although seldom employed as a tort theory in California" was recently applied to cover the unauthorized use of long distance telephone lines. Id. Specifically, the court noted "the electronic signals generated by the [defendants'] activities were sufficiently tangible to support a trespass cause of action." Id. at n.6. Thus, it appears likely that the electronic signals sent by BE to retrieve information from eBay's computer system are also sufficiently tangible to support a trespass cause of action.

In order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish: (1) defendant intentionally and without authorization interfered with plaintiff's possessory interest in the computer system; and (2) defendant's unauthorized use proximately resulted in damage to plaintiff. See Thrifty-Tel, 46 Cal. App. 4th at 1566; see also Itano v. Colonial Yacht Anchorage, 267 Cal. App. 2d 84, 90 (1968) ("When conduct complained of consists of intermeddling with personal property 'the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.'") (quoting Zaslow v. Kroenert, 29 Cal. 2d 541, 550 (1946)). Here, eBay has presented evidence sufficient to establish a strong likelihood of proving both prongs and ultimately prevailing on the merits of its trespass claim."

http://www.computerworld.com/s/article/print/58605/When_does_spidering_equal_trespass_

Also eBay's case on tresspassing

"The eBay site employs "robot exclusion headers." (Id. ΒΆ 5.) A robot exclusion header is a message, sent to computers programmed to detect and respond to such headers, that eBay does not permit unauthorized robotic activity. (Id.) Programmers who wish to comply with the Robot Exclusion Standard design their robots to read a particular data file, "robots.txt," and to comply with the control directives it contains. (Johnson-Laird Decl. ΒΆ 20.)

[Oscar Michelen]

Like so many other legal defenses to the Getty claim, its a question of whether it is worth fighting for or is it better to settle and be done with it. If you look at the Muensch case you will see that the reason that was litigated was because the photographers picked on a big fish - Houghton Mifflin publishing. You'll also notice that it was not Corbis but the individual photographer that brought the claim.  Corbis would have left it alone rather than take a chance at making bad law for them

[Helpi]

Oscar: "the photographers picked on a big fish - Houghton Mifflin publishing"

Side one = couple of photographers + law firm
Side two = giant publishing house + one of the world's largest law firms

Claim: Publishing house exceeded the terms of the negotiated license.

Side one is picking on side two ?

Result: photographers lose on a technicality.  


Oscar: "I have also questioned whether assigning copyright for the sole purpose of registration and then re-assigning it back to the photographer who then re-assigns it back for enforcement ( which some of these digital image warehouses do on occasion)is really the way the Copyright Act was meant to be utilized."

I believe H-M argued that assignment solely for purposes of copyright registration was not sufficient to make Corbis a "copyright claimant" thereby invalidating the registrations because to be a copyright claimant under the regs you have to be the author or obtain ownership of all rights in the copyright.

The court didn't seem to have an issue with it or didn't need to address it because even if Corbis were a claimant the registrations were still defective because they didn't list out each author of each photo per 409. So maybe the question will be addressed directly in the future.

[sundog49]

Does anyone know if  there is any software available (that isn't exorbitant to buy or license to use) that I could obtain to scan all my images for the fractal code to make sure I'm not infringing anyone before I'm attacked for it?

[Lettered]

I doubt it.  I think I remember seeing a thread about someone here asking picscout for a scan to see if any of their photos were infringing.  If I remember correctly it was basically a dead end (I cant find the thread though).

If you have a look at this statistic:
http://www.extortionletterinfo.com/forum/read.php?2,1472,1475#msg-1475

you might ask yourself why they would even want anyone to have such an ability.  

Personally, I think the better idea is to just take your own photos.  You can get a far more than adequate camera (e.g. Canon Digital Rebel) for less than a few stock photos in many cases.

Good luck, though, and do let us know if you find anything.

[sundog49]

I have a digital camera and actually do take my own photos where I can, but sometimes the demand of the project requires images of things or places I have no access to, so that is why i look on the web for them like anyone else.  As others have noted, it is generally easy to find free to use material and I try to be careful to avoid copyrighted material,unless I am prepared or have approval to pay the requisite license fees, but as I'm now learning, that is not always easy to do.  Rather than put myself at considerable risk, I have to find ways to verify fair use materials or make sure my techniques do not infringe on anyone.

[JPicker]

Ever since I got nailed last fall (ie...receiving the Getty letter)  for several postage size images, that were allegedly royalty and license free (and not only removing these, but every other single image on my company's web site that I could not be 100% certain were "free and clear" to use) I've been taking all of my own photos with my camera.

I have a web designer I'm currently working with who's redesigning and updating our company's site, and at my insistence (and cost) she is creating all graphics to be used from scratch along where necessary, with images/pictures I'm providing that I know I took myself. She thinks I'm being kind of extreme, but for me, this is the only way I can be guaranteed never to have those leeches/extortionists come at me again. I no longer trust anything posted online on any web site anywhere to be completely free and clear. Perhaps if I'd been this vigilant from the beginning, I never would have received the letter, or discovered this site - but I'm certainly glad this forum exists and externally grateful for the resources and help provided by Matthew and Oscar.

[Matthew Chan]

JPicker,

It appears you and I are on a similar page about trust issues regarding photos. The exception is that I will go through the government sites for photos IF I need one.  But lots of times I will look a "pro's" photo and recreate it using my own props. For example, I launched a bookkeeping website and wanted to have a financial feel with calculator, checkbook, pen images, etc.  So basically, based on what I saw before, I took MY OWN calculator, checkbook, and pen and posed them and took several shots at high-resolution.  With photoshop, I can clean up the photo and crop what I need and it turned out great and very similar to a "pro's" shot.

And for buildings, I just went into my local downtown and took some photos of the good looking public buildings and add it to my own personal stock.  As I go through life now, if I see something interesting visually, I will take some photos to keep them for the future.

And like you, if you have a graphics designer create a graphic from scratch, there is NEVER any confusion of it being a photo.  So, I do like graphics as a substitute when possible.

I have said this before, it boils my blood that us letter recipients are pronounced and judged guilty with them imposing the sentence. That is simply unacceptable to me. Thinking about it now just fires me up and reminds me why I fought back so aggressively.

Anyhow, I am not going to rant....

Matthew