Click Official ELI Links
Get Help With Your Extortion Letter | ELI Phone Support | ELI Legal Representation Program
Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters.

Author Topic: Putting My Money Where My Mouth Is  (Read 9162 times)

Oscar Michelen

  • ELI Legal Warrior
  • Hero Member
  • *****
  • Posts: 1301
    • View Profile
    • Courtroom Strategy
Putting My Money Where My Mouth Is
« 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.                 

Jerry Witt (mcfilms)

  • Hero Member
  • *****
  • Posts: 682
    • View Profile
    • Motion City
Re: Putting My Money Where My Mouth Is
« Reply #1 on: July 27, 2014, 06:54:56 PM »
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.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

Greg Troy (KeepFighting)

  • ELI Defense Team Member
  • Administrator
  • Hero Member
  • *****
  • Posts: 1859
    • View Profile
    • Yeah, We Do That.
Re: Putting My Money Where My Mouth Is
« Reply #2 on: July 27, 2014, 08:16:07 PM »
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/
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

lucia

  • Hero Member
  • *****
  • Posts: 767
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #3 on: July 27, 2014, 08:27:11 PM »
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.


Oscar Michelen

  • ELI Legal Warrior
  • Hero Member
  • *****
  • Posts: 1301
    • View Profile
    • Courtroom Strategy
Re: Putting My Money Where My Mouth Is
« Reply #4 on: July 28, 2014, 06:40:52 PM »
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.   

Newbie Fan

  • Newbie
  • *
  • Posts: 8
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #5 on: August 01, 2014, 05:18:53 PM »
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.

stinger

  • Hero Member
  • *****
  • Posts: 766
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #6 on: August 01, 2014, 05:38:46 PM »
Idea1:  when you win, you might be awarded court costs.

stinger

  • Hero Member
  • *****
  • Posts: 766
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #7 on: August 01, 2014, 05:41:08 PM »
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.

stinger

  • Hero Member
  • *****
  • Posts: 766
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #8 on: August 01, 2014, 05:43:20 PM »
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.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Putting My Money Where My Mouth Is
« Reply #9 on: August 02, 2014, 02:43:13 AM »
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.
« Last Edit: August 02, 2014, 02:45:04 AM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Blue

  • Newbie
  • *
  • Posts: 3
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #10 on: August 02, 2014, 10:25:34 AM »
 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.
« Last Edit: August 02, 2014, 10:31:34 AM by Blue »

Robert Krausankas (BuddhaPi)

  • ELI Defense Team Member
  • Administrator
  • Hero Member
  • *****
  • Posts: 3354
    • View Profile
    • ExtortionLetterInfo
Re: Putting My Money Where My Mouth Is
« Reply #11 on: August 02, 2014, 12:46:32 PM »
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)..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

stinger

  • Hero Member
  • *****
  • Posts: 766
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #12 on: August 02, 2014, 01:00:49 PM »
A good strategy v. Getty:  Dont't make yourself "low hanging fruit."

Robert Krausankas (BuddhaPi)

  • ELI Defense Team Member
  • Administrator
  • Hero Member
  • *****
  • Posts: 3354
    • View Profile
    • ExtortionLetterInfo
Re: Putting My Money Where My Mouth Is
« Reply #13 on: August 02, 2014, 01:19:14 PM »
A good strategy v. Getty:  Dont't make yourself "low hanging fruit."

not overly complicated..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

PhDoc

  • Newbie
  • *
  • Posts: 12
    • View Profile
Re: Putting My Money Where My Mouth Is
« Reply #14 on: August 02, 2014, 02:38:51 PM »
Quote
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?

 

Official ELI Help Options
Get Help With Your Extortion Letter | ELI Phone Support Call | ELI Defense Letter Program
Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters.