ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Oscar Michelen on July 27, 2014, 05:33:20 PM
-
I wanted to share with ELI that this year, I have been retained in two matters that show that infringement claims can be properly addressed without resorting to extortionate or heavy-handed methods. The names of clients will not be used and some of the details will be altered slightly so no one could determine who the actual parties were. One involves some photos of well-known hip hop artists that appeared on my clients website when a user uploaded a link to them into comments he made about the various artists. The other involves eight landscape images of a Caribbean island that were used by a hotel company. These matters were handled very differently by my office. Case #1 involved a company and firm that have been minimally discussed on the site but are known to ELI users. They filed suit in Federal Court over the 10 images or so and I was glad to see that the federal judge could see that this was a low level case that needed to go away. The other side's lawyers had demanded about $5,000 per image originally.They freely provided the registrations to me as well as the artists licensing agreement so that there was no doubt they were entitled to bring the claim. I showed them that the images were actually "hot-linked" and cited them the Perfect 10 v. Amazon case. We discussed the case back and forth over a few phone calls. I provided proof of financial hardship form the company and the low web traffic to the site. In the end the claim settled amicably and quickly for just under the statutory minimum for each image with a lengthy payout term that allowed for the site to survive and the plaintiff to be compensated.
Case #2 - The client had already provided copyright registrations to me and screenshots of the infringing use along with the mails he sent to the hotel web developer's address with a link where he could look for images that he was interested in licensing. While no specific fees were discussed, a range was provided and the photographer told the developer that the fees would be higher if the photographer was asked to provide exclusivity so that no one else could use the images during the licensing period. The developer said he would get back to him. Instead the images were used on a national hotel chain website. When I sent a letter to the hotel website AND the developer, I did not let them know that copyright was actually a criminal offense or a civil claim exposing them to up to $150,000 per image. I sent them the screenshots and the VA numbers for the copyright registrations. I told them to refer the letter to their lawyer or insurance company and get back to me to discuss our damages claim. When the developer called me and said he would be handling it for the hotel website and him he asked "Do I need a lawyer?" I said technically no but it would be a good idea to get an IP Lawyer. The next day an IP lawyer from the developer's home state called and we discussed the claim for about half an hour. He offered $200 per image and I advised him that it was a willful infringement of copyrighted images so that was not going to cut it. I said, let's make it easy - $750 per image which is the statutory minimum. He called me back the next day and the case was settled for just below that amount. The client was very happy with the quick turnaround and the agreement to cease and desist.
Getty and their infringement team will not deal with the developer, will not submit proof of ownership or copyright registration and do not encourage folks to get qualified counsel. They won't even discuss in detail why they think their images are worth the value they seek. Yet all of these steps are the best way to get a fair and fast resolution. No one on this site is saying that infringement of digital images is proper, of course not. But it is the methodology with which these claims are prosecuted that we all have issue with. Infringement claims can be handled and resolved without resorting to the overbearing and heavy-handed tactics employed by the majority of the digital image industry.
Here endeth the lesson.
-
Interesting cases, Oscar. But I'm not sure why case #1 chose to settle. If the images were hotlinked AND uploaded by another user on the site, it seems the owner was in the clear. Sure litigation would have taken time and cost money, but i believe they would eventually prevail.
-
We also have the claim I reported on recently where Getty was offered the FULL amount demanded by a web developer if Getty would just provide proof that they had the legal right to collect on behalf their client. He also offered 500.00 no questions asked if Getty didn't want to accept the first offer. Getty refused FULL payment and told the web developer that they would start going after his client.
Fulls Story and documents here:
http://gettyimagesmustchange.com/site/have-getty-images-and-mccormack-intellectual-property-law-ps-crossed-the-extortion-line/
-
Interesting cases, Oscar. But I'm not sure why case #1 chose to settle. If the images were hotlinked AND uploaded by another user on the site, it seems the owner was in the clear. Sure litigation would have taken time and cost money, but i believe they would eventually prevail.
I suspect a business would just prefer the issue to go away. Out of pocket costs to litigate would exceed the settlement they were willing to pay, so it can be worth it. Also: the mental energy for a suit can be burdensome and can distract from important business matters making settling worthwhile.
Of course settling and paying when you are certain the courts would not make you pay is only remotely worth it if the copyright holder is willing to take the statutory minimum of $200. Otherwise, if they demand ridiculous amounts, it's just not worth it.
-
They settled for a few reasons. First of all - "nuisance value" to make a motion and win would cost more than settling the case. Second of all - they company still had a second cause of action for "Secondary liability" which tracked the language of Perfect 10 v. Amazon (if you look at that case it talks about this form of claim) To get that dismissed would have required some discovery to show that the users did not routinely put up copyrighted information or that our client did not routinely get notices about these users' materials. But really it came down to money and risk aversion.
-
Another wave of single image lawsuits is coming? Against small incorporated companies no doubt that can't afford to hire counsel AND pay Getty. (And incorporated companies cannot represent themselves which of course Getty knows and is taking advantage of). So far every company sued has settled apparently, regardless of the facts - even when the law was on their side (like the hotlink case Oscar just discussed). So basically it seems to make sense to pay on a single image alleged infringement at the first and lowest amount offered in the first Getty Letter (which by most accounts is under $900) if the potential defendant is a LLC or a corporation - because as discussed here it would cost more to fight it than to pay it. I surmise it would cost even more than what the letter asked for to retain any counsel at all (even Oscar) to even settle for that original amount they asked for. If I am wrong please let me know and why.
-
Idea1: when you win, you might be awarded court costs.
-
Idea 2: when you win in a court room, it becomes a matter of public record and others will see how you beat the Trolls and the Trolls position will henceforth be weakened.
-
Idea 3: it's far easier to live with yourself when you fight evil and all that is wrong with the world than when you give in to it.
-
People who receive the letters think they are "special" and will be "targeted" specifically. The reality is that most victims are rather insignificant in the big scheme of things. The reality is that several thousands of letters go out each year. A "wave of single image lawsuits" is entirely subjective psychobabble from people who are uninformed.
A "wave" of 10 lawsuits filed out of 3,000 letters a year (a conservative number) means there is a 0.3% chance of a lawsuit. 20 lawsuits would be 0.6% chance. 30 lawsuits would have to be filed to achieve even a 1% chance of a lawsuit.
The very fact that some have bought into the propaganda means that they are ripe to be picked. There are people who are naturally-inclined to be suckered and be a victim, hence, they settle quietly because they lack objectivity and the ability to be rational and see the big picture.
ELI has covered several topics ad nauseum. People's ignorance of legal understanding is the very reason why extortionists are upset that ELI discusses non-legal (vs. illegal) strategies in dealing with it. The Getty staff lawyers themselves hide out because they hate being exposed. They are too busy enjoying their $100K+ salaries. They use outside lawyers like "Beam My Ass Up" Scotty Wilsdon and Timmy (B. utthurt) McCormack as "henchmen" (notice the quote marks o great screenshot experts) to do their dirty work.
As has previously predicted and discussed, the 5 lawsuits were filed in a way to minimize expenses. Each of the lawsuits were practically clones of each other. But does the general layperson know that? Nope. Their reptilian brain says, they will be sued for $100,000 and that they will easily help themselves to every asset and account a person has. For the record, that is NOT how that works. ELI can only help certain types of people. For others, it doesn't matter what you say, they want to argue with us (the people who have watched extortionists operate for the last 5 years).
Many think there there is only one way to fight back (through the court system). Those people who think like that are the ones that become victims.
Even if Getty filed 50-100 lawsuits, there will be a field day in the media. No easy way they can pull this off and not get a huge amount of PR blowback. A casual view of dockets.justia.com corroborates what that the last "wave" of lawsuits consisted of only 5 boilerplate lawsuits. It wasn't a "wave". It was a "raindrop" at best, nothing close to a "wave".
ELI provides a lot of information, resources, and techniques to counter the Getty threat. But the truth is, all of what we provide is useless is if a person doesn't "get it". For some, giving up settlement money is a small price to pay. For others, like me and other prominent members of the ELI Community, we don't like being pushed around and being extorted. And guess what, we aren't pushed around. However, ELI is greatly hated by many in the copyright extortion industry.
Another wave of single image lawsuits is coming? Against small incorporated companies no doubt that can't afford to hire counsel AND pay Getty. (And incorporated companies cannot represent themselves which of course Getty knows and is taking advantage of). So far every company sued has settled apparently, regardless of the facts - even when the law was on their side (like the hotlink case Oscar just discussed). So basically it seems to make sense to pay on a single image alleged infringement at the first and lowest amount offered in the first Getty Letter (which by most accounts is under $900) if the potential defendant is a LLC or a corporation - because as discussed here it would cost more to fight it than to pay it. I surmise it would cost even more than what the letter asked for to retain any counsel at all (even Oscar) to even settle for that original amount they asked for. If I am wrong please let me know and why.
-
A wave of psychobabble by the uniformed? "I suspect that Getty will re-launch another wave at some point this year." Stated by Oscar Michelin earlier this week in regard to the question of the status of single image lawsuits. There will be another "wave" Oscar's words not mine, because they were successful. None fought back and Getty got their money.The numbers some are concerned about are how many of those that receive letters and subsequently are sued are incorporated small businesses. I think the percentage/risk of being sued would be higher if you broke that down, that is more of the point. Also we should discuss the strategy of where they are suing. Why were most suits filed in the 11th circuit? So far it is batting 100 for small incorporated businesses being sued for single images. None of Oscar's clients fought this (innocent or not)- they all settled and presumably for more than they were initially approached for in initial letters, as at a minimum they now had to also pay his fees. So I think it reasonable to discuss the strategy of this particular new extortion of suing incorporated small businesses because Getty knows they cannot represent themselves in court and when it will be cheaper to settle with them from the get go ie the first letter that asks the least amount - right or wrong.
-
ummm, I'm no math whiz, but taking 3000 as the number of letters sent out per yr ( I think it's more...many more) and the fact that 10 suits were filed against small businesses, the results stays the same 0.3%. Naturally getty will file against "hand picked" small businesses cause they know they generally don't have the means to fight back, and cannot represent themselves, thus they settle. It's not rocket science to see and understand that Getty looks for low hanging fruit, in other words those ignorant of the law and their rights.. We've seen very few letters to individuals over the years and those that we have seen, Getty addressed them as businesses ( mistakenly)..
-
A good strategy v. Getty: Dont't make yourself "low hanging fruit."
-
A good strategy v. Getty: Dont't make yourself "low hanging fruit."
not overly complicated..
-
I showed them that the images were actually "hot-linked" and cited them the Perfect 10 v. Amazon case.
Doesn't "hot-linking" qualify as bandwidth theft? Isn't this technically illegal?
-
I showed them that the images were actually "hot-linked" and cited them the Perfect 10 v. Amazon case.
Doesn't "hot-linking" qualify as bandwidth theft? Isn't this technically illegal?
I don't think there are any laws in regards to "bandwidth theft", it's not really regarded as good internet etiquette, depending on the usage, but lets be realistic here..If I hotlink to an image on your site, how much bandwidth am I "stealing" for 1 single image on a single blog that gets little traffic, you'd probably never even notice unless you dissected the server logs.. and even then bots, spiders and scrapers would be using more of your resources..now on the other hand if amazon.com did that it would/could be a different story entirely.
-
I believe you are correct when Oscar made this statement. He doesn't qualify as being uninformed. Nevertheless, his words was used relative to the number of lawsuits that was filed previously against single-image lawsuits is probably ONE (1) at most in the previous year or two. So, yes, going from ONE lawsuit a year to FIVE does appear to be a "wave" in that narrow context. For the average victim to "panic" going from ONE to FIVE boilerplate lawsuits means they are missing the bigger perspective.
However, I have discussed this very topic with Oscar and made my case to him. Although we got sidetracked from the discussion, Oscar did not refute my numbers as far as the proportionality of the assertion I am making. Please also keep in mind when I post this, it is not necessarily directed at "you" but an opportunity to share my thoughts with the larger readership ELI cultivates. Individual readers should extract those portions that are useful to them.
The fact that no one fought back doesn't mean much to me. It only means that for those parties, it was not worth the fight, unable to fight, or unwilling to fight. I can understand that. Not all fights are "worth it". For established businesses, sometimes, it is easier to pay someone off than to fight. However, don't take that to mean if any case went "all the way", it doesn't mean Getty would get a 5-figure ruling. They were "successful" in that Getty got some people to cave in and pay and sent a message publicly. I promise you that an extra amount of time was spent on those five cases that is not spent on most of the other hundreds or thousands of cases.
As far as I am concerned, I have access to Justia and Pacer. I don't have to take anyone else's word for the actual numbers of lawsuits because they are a public matter. I do the research myself and make my own determination. And I share my findings when I can. People can read and believe whatever they want.
The term "small business" is too broad. Without giving away my own personal strategies, let's just say that not all "small businesses" are equally vulnerable to lawsuits and legal challenges. The people they targeted were not that small as with most single or dual-member businesses. In many ways, being a single-member business is far superior in lawsuit protection than an "established" small business but most people view themselves as without defense. That is not true.
The assertion that Getty is batting 100 from 5 boilerplate lawsuits is viewing this from a small lens and tiny context. If that is your context, then I can't disagree with you. But it is a view that cripples and disempowers. My job is to look at the larger picture and translate it to how it might affect any given case.
Also, some may not be aware of non-Getty cases where people did fight back after being served and they were persuaded to drop the lawsuit. Those don't get a lot of publicity. There are easily hundreds of people who have not had to pay over the years but those folks will not brag about it publicly.
I have outlined many legal, non-judicial strategies over the years for those who are determined to fight back. They do not fit to everyone's personal or professional disposition or convention. If one is determined to use the conventional "hire a lawyer and sit back and watch" strategy, then as far as I am concerned, Oscar is among the best there is. Nevertheless, no lawyer can promise guaranteed results even Oscar. Additionally, Oscar is constrained by what a client wants. No matter how much Oscar may want to fight back, his primary interest must be to accommodate the client's wants and needs. And if the client's needs is to shun conflict, publicity, negativity, avoid risk, save time/energy, etc. then it is obvious. Settlement is the best, most effective solution.
I am personally facing a legal fight of my own (Chan vs. Ellis appeal in the GA Supreme Court) where Oscar is my lawyer. Without revealing my secrets at this time (because the case is still progressing), I can promise you as a client myself going into what is perceived as a very uphill battle, I have been very proactive and active behind the scenes and becoming involved in a way that most clients would never do. Even if I "lose", there is a high likelihood I will still "win" in a big way. It is all about context. I apologize for being cryptic, I wish I could tell more specifics but I cannot at this time because my enemies actively read these forums.
One analogy I will give is that I was very upset and angered with Getty for issuing an extortion letter to me 6 years ago. But now I can honestly say it was one of the best things that ever happened to me. It lead to the creation of ELI, meeting Oscar, many new friendships, and allies in life. Not to mention many write-ups in the press. Last year, I embarrassingly lost my case in defending against a sweeping protective order that essentially shut down an entire forum and the removal of over 2,000 posts on ELI to the point I left ELI disenchanted and disgusted for nearly a year. And yet, what is currently happening (and yet to happen) in my case might well be one of the best personal and business life experiences I will ever go through. We will be reporting more on this as events develop.
A strategy all clients need to embrace in all lawsuits is to become active and NOT be overly dependent on the legal system. It is not about sitting back and letting others determine your fight. Fighting back on the legal front is an important front but it is NOT the only front. Using publicity techniques is quite effective and have been used by a number of Getty victims. Prior victims smartly have gone public and contacts media, a TV news story hits and then suddenly Getty loses their motivation to go after someone. We have seen this happen more than once. And Getty vs. Advernet also showed an example of how to fight back and be victorious even though they later abandoned their case. There are many successful techniques and they have been discussed throughout the years on ELI. But honestly, there are some techniques that will never be discussed publicly or freely because we know our "enemies" actively read our forums. You can thank them for being so attentive that we now have to censor ourselves.
There are ways of discouraging a lawsuit BEFORE it hits. And even if one were to hit, there are ways to deal with it also. The "new wave" of Getty's lawsuits doesn't materially change tactics one bit. In fact, if Getty decides to suddenly file 40-100 lawsuits tomorrow, there is a huge publicity opportunity for all the victims. We at ELI hopes this never happens as this would cause a great deal of stress for many innocent infringers but nonetheless, the publicity opportunity for ELI and extortion letter victims would be priceless.
We, at ELI, believe we are in the right side of this fight but we can only do so much. Ultimately, it comes down to how a victim thinks and behaves which makes all the difference. And even if one gets a letter and has to settle, it doesn't have to be a catastrophic event.
A wave of psychobabble by the uniformed? "I suspect that Getty will re-launch another wave at some point this year." Stated by Oscar Michelin earlier this week in regard to the question of the status of single image lawsuits. There will be another "wave" Oscar's words not mine, because they were successful. None fought back and Getty got their money.The numbers some are concerned about are how many of those that receive letters and subsequently are sued are incorporated small businesses. I think the percentage/risk of being sued would be higher if you broke that down, that is more of the point. Also we should discuss the strategy of where they are suing. Why were most suits filed in the 11th circuit? So far it is batting 100 for small incorporated businesses being sued for single images. None of Oscar's clients fought this (innocent or not)- they all settled and presumably for more than they were initially approached for in initial letters, as at a minimum they now had to also pay his fees. So I think it reasonable to discuss the strategy of this particular new extortion of suing incorporated small businesses because Getty knows they cannot represent themselves in court and when it will be cheaper to settle with them from the get go ie the first letter that asks the least amount - right or wrong.
-
Most people don't hot-link to steal anyone's bandwidth. It is often done to preserve the originality and source of the material being cited.
And even if it were "illegal", who is going to prosecute over 1 MB (or whatever) per month being "stolen" especially when today it almost has no measurable value? What district attorney in any county the U.S. wants to waste tax dollars prosecuting some website owner for allegedly "stealing bandwidth" especially when "hotlinking" is generally regarded as a legitimate practice.
This is an example of what I refer to as changing the context of the situation.
I showed them that the images were actually "hot-linked" and cited them the Perfect 10 v. Amazon case.
Doesn't "hot-linking" qualify as bandwidth theft? Isn't this technically illegal?
-
I showed them that the images were actually "hot-linked" and cited them the Perfect 10 v. Amazon case.
Doesn't "hot-linking" qualify as bandwidth theft? Isn't this technically illegal?
1) Doesn't "hot-linking" qualify as bandwidth theft?
Some people call it that.
2) Isn't this technically illegal?
I'm pretty sure the answer is "absolutely not". But one never knows. Some small country somewhere may have made such a thing illegal. That said: I don't think hotlinking violates any law anywhere in the US. If you know of any statute making this illegal, it would be interesting to read it. Until I see one, I'll continue to believe it is not illegal anywhere. (It really doesn't make sense for it to be illegal.)
3) Even if hotlinking was illegal somewhere, hotlinking would not be a copyright violation. Those complaining of this would need to make a claim under the correct statute and that's not copyright.
Some server administrators do not like hot-linking. But their not liking it doesn't make it illegal.
Beyond that: preventing hotlinking is pretty much under control of the admin. If the admin knows what they are doing they can easily use technical blocks to prevent hotlinking. If you want to know how, google ".htaccess block hotlink" or something similar. Creating the .htaccess file and blocking hotlinking is trivial. If the admin doesn't like the hot-linking that's what they ought to do.
I prevent some sites from hotlinking. I also prevent some sites from framing which is a sort of "really obnoxious super-hotlinking". But other sites hotlinking my content is not illegal as far as I am aware.
-
If hot-linking was illegal, I am guessing someone would have been screaming about it by now.
Also, if hot-linking was a universally hated practiced, it would be informally banned through default software settings. Typically, I turn off hot-linking because I have limits on bandwidth as part of my subscription and one never knows when your website might suddenly spike to an unusual referral or popularity hit like ELI received in 2012 when I was writing about the "Reality Steve" lawsuit thing.
In some ways, hot-linking is a compliment in that they are "crediting" the source of the content.
As Lucia says, just because someone doesn't like it or even hate it, doesn't automatically make it illegal. Of course, some of our "screenshot-based readers" who are allegedly lawyers don't have the mental bandwidth to make finer distinctions that "disliked/hated/unpopular practice does not illegal practice". They simply cry "Boo hoo, I am being bullied by people writing on THEIR website and we need a bright line rule so that their feelings are not hurt or injured by content sitting of said website".