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ELI Forums => Getty Images Letter Forum => Topic started by: JLorimer on November 23, 2013, 01:53:44 AM

Title: Received a Complaint from BWP Media USA
Post by: JLorimer on November 23, 2013, 01:53:44 AM
First of all, I'm sorry if I'm breaking rules by starting my own thread on this.  Also, I see most messages here seem to be about Getty.  I apologize if this is off topic.  I did post my story in another thread so I'm sorry if I'm making a mess here.  I'm out of my mind with fear over this complaint I received. 

I received a message from BWP Media USA on November 21.  Actually, the complaint was filed on November 14, but through circumstances that I touch on below, I did not actually get the details of the complaint until November 21. 

I run a small blog that has a few contributors who post articles.  One of them posted a photo found on the web somewhere.  I do not have a proper safe harbor agent so it looks like I'm on the hook for it if something happens.

My domain information is protected using Domains By Proxy.  I have received crazy people contacting me because they got my info from domain registry in the past.  It's a long story.  The short of it is that I chose Domains By Proxy to protect myself, not because I'm doing anything illegal, sketchy, or morally wrong.  Anyway,  last week I received a notice from Domains By Proxy that there was a possible copyright complaint.  Through some kind of technical mixup, it took an entire week to get Domains By Proxy to give me the information about the complaint.  That's a long story, but needless to say I am also furious with Domains By Proxy for dropping the ball on something this important.

I took my entire site offline a few hours after receiving the complaint because I was freaked out and didn't know what had happened.  When I finally got the details of the complaint, I emailed the person listed as the contact - R. Taylor from BWP Media USA - stating that I was unaware that there had been any type of violation, that the possibly infringing image (as well as the article the user had written on his own) had been completely removed from the server and the database, that my site does not generate any sort of profit (actually takes a loss because of the hosting costs), and that I was sorry.  I've been so sick over this that I forgot to mention that it is user generated and not created by me.  It might not make a difference since I haven't designated an actual DMCA agent and paid the fee to make it official, but I wish I had mentioned it anyway.  There is definitely a place set up on my site where a DMCA complaint could have been filed without all this hassle.  I think they intend to directly get your personal information and skip the whole DMCA process.

From what I've read here, it now sounds like I shouldn't have sent that email.  It seemed off to me that legal matters would be handled via email but I have never been involved in DMCA or anything so I thought maybe that could be normal.  The other problem is that Domains By Proxy basically says in that situation that you have to give the party complaining your contact details or they will without your consent.  I did so and I'm guessing I may receive a letter in the mail now.

I've been reading all over the web to try and find out what kind of situation I'm in here and I'm at a total loss.  Some people say that they remove the file and never hear about it again.  Some people are calling BWP Media USA the next copyright troll.  I looked through the last 111 filings involving BWP Media USA on a legal website.  It seems that all of them have to do with entities much larger than myself.  Most of them are against LLCs, etc.  None of them seemed to be against individuals.  Perhaps I'm just the dummy who didn't know you should create an LLC to run a website.  I've never run a site for profit so the thought never crossed my mind.

I've seen that people can be sued for well over $150,000 in matters like this.  I even read a case where someone had settled for $8,000.  Since I'm not an LLC, I would be screwed because I wouldn't be able to just close down the business and move on.  Getting sued for that much money would sink me.  Even settling for an amount like that at this time would pretty nearly sink me.  I would have to sell everything I own and I would probably still have to file for bankruptcy.

I just spoke with another guy on another forum who was in a very similar situation back in July with BWP.  The only difference is that he had an LLC.  He said he basically told them to pound sand after his initial email response (very similar to mine) and voicemail he left when he called and they never bothered him again.

Does anybody have any advice.  I've been reading forums and things all over the Internet for days now and my head is just in knots.  Sometimes I think I'm going to be okay and other times I see things that make me think I'm going to be out on the streets in a cardboard box.

Also, is there a way to search or find out if an image is registered for copyright before this goes further?  I would like to try to find out so that I can know as much as possible before I speak with a lawyer, if I have to speak with one.

Does anybody have any tips or advice? 

Any word on outcome from past cases around July?
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on November 23, 2013, 08:11:41 PM
Welcome to the forums. First off you need to step back, calm down and take a deep breath. From your description your situation is nowhere near as bad as you think it is. While I agree with your statement that you should not have contacted them, at least not without educating yourself thoroughly first it still is not as bad as you are feeling.

Even if they were to sue you if you don't have the money you can't pay them. We're seeing a rash of letters from these people here in just the last week so we are all still kind of learning more about them and their tactics.

Keep reading the forms, educating yourself on the copyright law and asked specific questions on aspects you don't understand. It is hard to make recommendations when this company seems to have become very active again in just the last few weeks.

I would look into getting your DMCA safe harbor in place prior to putting your site backup. I also think that the courts would take into consideration the fact someone else uploaded this image on your site should you be taken to court.

I have some questions for you. Did you have any sort of disclaimer on your site limiting the content of what people may post or upload to it? What type of picture was this? (A picture of a sprinkler head, a car or a person)

Again, stay calm breathe deeply and relax, panicking will do you no good and will only get in the way of you educating yourself as to the copyright law. I would not contact them again or reply to them until you know more about the law in your situation so you do not say or do anything to make your situation worse. If you feel this is not an option for you I would contact a lawyer who specializes in copyright law. My recommendation would be Oscar as I doubt there is a lawyer out there who is dealt with and defended more copyright issues than Oscar.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 23, 2013, 09:11:22 PM
Greg,
Thanks for responding.  I appreciate your honesty and wisdom.  Sorry for firing off so many posts like that last night.

I did spend some time reading around the forums.  I appreciate the wealth of knowledge that is here.  I think I do have some questions.  I will also try to provide better details.  I apologize if some things are too generalized.  I have read a lot and I remember a lot, but I can't remember who said them or in what thread they were said.

I had very, very generic terms of use set up.  The welcome email to members was also very general.  They stated that you couldn't do illegal things, that you assume responsibility, and that sort of thing.  To make matters worse, I started checking my site in different browsers and it seems that the terms link may not have been clearly visible because of some sloppy html in the template of the site.

The picture that was posted was a candid celebrity photo.  I have since looked deeper into it since I did not originally see the photo when it was posted.  It appears that a bystander or paparazzi may have snapped the photo on the street during the filming of a TV show.  It also has the smallest of small logos in the bottom right corner that belongs to one of the celebrity gossip blogs.  When looking at the photo at the size it was posted on the page, the logo is unintelligible.  I'm not trying to use that as an excuse, it's just an observation.

From things I have read on the forums, it seems like R. Taylor might be Randy Taylor that is mentioned in other places on the forum.

I saw that someone had posted a link to the US Copyright website where you could check to see if things are registered.  I haven't used their search before so I don't know how effectively I used the tool.  I tried variations of related and direct keywords to the image in question.  I don't think it has been registered but it's hard for me to tell.  This is different from the Getty letters, so you think that aspect of it even matters?

Is it acceptable for me to request the proof that others have requested from Getty in the past in this situation?  I'm not saying to request it up front, I just mean if they do in fact contact me or send me a letter.

I tried finding the answer to this question, and I apologize if I missed it.  I have seen that a URL and a screenshot do not make for proper evidence.  What kind of evidence would they in fact need?  Would they have to subpoena my web host for files and logs?

Theoretically, if this would go to court, would I basically be in trouble since the image did have a logo and was found on another site?  I've been very confused on that point.  It seems that anybody else on the web talking about copyright infringement pretty much says that is the end of the line for the argument.  There is no fair use or journalistic use in that situation, it is simply copyright infringement. 
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 23, 2013, 11:55:00 PM
Maybe this is a really basic question, but if people just cut these guys checks when they are threatened, what is to say that they won't come back for a second, third, or fourth helping?  For those who do, is there any official paperwork or anything that protects them?
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on November 24, 2013, 11:49:44 AM
My comments appear inline in bold.

Greg,
Thanks for responding.  I appreciate your honesty and wisdom.  Sorry for firing off so many posts like that last night.

No problem.

I did spend some time reading around the forums.  I appreciate the wealth of knowledge that is here.  I think I do have some questions.  I will also try to provide better details.  I apologize if some things are too generalized.  I have read a lot and I remember a lot, but I can't remember who said them or in what thread they were said.

I had very, very generic terms of use set up.  The welcome email to members was also very general.  They stated that you couldn't do illegal things, that you assume responsibility, and that sort of thing.  To make matters worse, I started checking my site in different browsers and it seems that the terms link may not have been clearly visible because of some sloppy html in the template of the site.

The picture that was posted was a candid celebrity photo.  I have since looked deeper into it since I did not originally see the photo when it was posted.  It appears that a bystander or paparazzi may have snapped the photo on the street during the filming of a TV show.  It also has the smallest of small logos in the bottom right corner that belongs to one of the celebrity gossip blogs.  When looking at the photo at the size it was posted on the page, the logo is unintelligible.  I'm not trying to use that as an excuse, it's just an observation.

Pictures of people and especially can be more problematic, however celebs as a public figure can have their picture taken and used without a model release(from my understanding, look at all the gossip magazines with unflattering pictures). However, someone still holds rights to the picture and if there was an ownership stamp or logo on it then that should be a red flag. 

Let me ask you this was the image actually uploaded to you page or was it just a hotlink, if it was just a hotlink then you should be okay. (See Perfect 10 v Google, Perfect 10 v Amazon cases which ruled hotlinking is not infringement). 

http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Google_Inc.

http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc.


From things I have read on the forums, it seems like R. Taylor might be Randy Taylor that is mentioned in other places on the forum.

I saw that someone had posted a link to the US Copyright website where you could check to see if things are registered.  I haven't used their search before so I don't know how effectively I used the tool.  I tried variations of related and direct keywords to the image in question.  I don't think it has been registered but it's hard for me to tell.  This is different from the Getty letters, so you think that aspect of it even matters?

The image does not have to be registered, copyright exists from the moment a picture is taken, proper registration allows the holder to ask for statutory damages  rather then just actual damages http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement

The issue with a lot of the Getty registrations are they are bulk registrations or registrations of entire collections with multiple artists.  This may or may not apply here.


Is it acceptable for me to request the proof that others have requested from Getty in the past in this situation?  I'm not saying to request it up front, I just mean if they do in fact contact me or send me a letter.

Absolutely, you want to see everything needed to justify whatever amount they are asking for.

I tried finding the answer to this question, and I apologize if I missed it.  I have seen that a URL and a screenshot do not make for proper evidence.  What kind of evidence would they in fact need?  Would they have to subpoena my web host for files and logs?

I am not a lawyer so I don't know the answer for sure to this, it is up to htem to prove you infringed.  I do know there has been at least one case where it was rulled this type of evidence was not valid.  The company sounds foreign but it was a US case called Telewizja Polska v. Echostar Satellite Corp

http://www.nyls.edu/documents/media_center/the_media_center_library_u_s_cases/1819.pdf


Theoretically, if this would go to court, would I basically be in trouble since the image did have a logo and was found on another site?  I've been very confused on that point.  It seems that anybody else on the web talking about copyright infringement pretty much says that is the end of the line for the argument.  There is no fair use or journalistic use in that situation, it is simply copyright infringement.

Again, I can't say what a court will or will not do and for this kind of specific advice I think you would need to ask a copyright attorney but I would still play the waiting game and in the mean time continue to read and learn.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 24, 2013, 12:10:49 PM
I'll try to cut out some of the old stuff and reply to what makes sense like you did.  Hope it's not too confusing.

The picture that was posted was a candid celebrity photo.  I have since looked deeper into it since I did not originally see the photo when it was posted.  It appears that a bystander or paparazzi may have snapped the photo on the street during the filming of a TV show.  It also has the smallest of small logos in the bottom right corner that belongs to one of the celebrity gossip blogs.  When looking at the photo at the size it was posted on the page, the logo is unintelligible.  I'm not trying to use that as an excuse, it's just an observation.

Pictures of people and especially can be more problematic, however celebs as a public figure can have their picture taken and used without a model release(from my understanding, look at all the gossip magazines with unflattering pictures). However, someone still holds rights to the picture and if there was an ownership stamp or logo on it then that should be a red flag. 

Let me ask you this was the image actually uploaded to you page or was it just a hotlink, if it was just a hotlink then you should be okay. (See Perfect 10 v Google, Perfect 10 v Amazon cases which ruled hotlinking is not infringement). 

http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Google_Inc.

http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc.


Unfortunately, I allow users to upload files.  The user did upload the file in this case.  Also, I had seen those cases in my previous readings.  It seems one would actually need to be an indexing service like Google for the same rule to apply.  I have seen other instances where it seems someone has been in trouble for posting a photo that was hosted elsewhere because it was "framed" within his site.

I saw that someone had posted a link to the US Copyright website where you could check to see if things are registered.  I haven't used their search before so I don't know how effectively I used the tool.  I tried variations of related and direct keywords to the image in question.  I don't think it has been registered but it's hard for me to tell.  This is different from the Getty letters, so you think that aspect of it even matters?

The image does not have to be registered, copyright exists from the moment a picture is taken, proper registration allows the holder to ask for statutory damages  rather then just actual damages http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement

The issue with a lot of the Getty registrations are they are bulk registrations or registrations of entire collections with multiple artists.  This may or may not apply here.


I figured that was what the answer would be.  I'm aware of the copyright at time of creation rule.  In the case of celebrity gossip sites, do you happen to know if they employ their own photographers or if they tend to purchase elsewhere?  If so, does there need to be any official type of copyright transfer from photographer to source?

Is it acceptable for me to request the proof that others have requested from Getty in the past in this situation?  I'm not saying to request it up front, I just mean if they do in fact contact me or send me a letter.

Absolutely, you want to see everything needed to justify whatever amount they are asking for.

I realize that anybody can be sued for anything.  Is there any requirement to show any type of real proof before dragging somebody to court and requiring them to hire a lawyer and pay fees?

I tried finding the answer to this question, and I apologize if I missed it.  I have seen that a URL and a screenshot do not make for proper evidence.  What kind of evidence would they in fact need?  Would they have to subpoena my web host for files and logs?

I am not a lawyer so I don't know the answer for sure to this, it is up to htem to prove you infringed.  I do know there has been at least one case where it was rulled this type of evidence was not valid.  The company sounds foreign but it was a US case called Telewizja Polska v. Echostar Satellite Corp

http://www.nyls.edu/documents/media_center/the_media_center_library_u_s_cases/1819.pdf


Theoretically, if this would go to court, would I basically be in trouble since the image did have a logo and was found on another site?  I've been very confused on that point.  It seems that anybody else on the web talking about copyright infringement pretty much says that is the end of the line for the argument.  There is no fair use or journalistic use in that situation, it is simply copyright infringement.

Again, I can't say what a court will or will not do and for this kind of specific advice I think you would need to ask a copyright attorney but I would still play the waiting game and in the mean time continue to read and learn.
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on November 24, 2013, 06:35:17 PM
My comments appear inline in bold.


Unfortunately, I allow users to upload files.  The user did upload the file in this case.  Also, I had seen those cases in my previous readings.  It seems one would actually need to be an indexing service like Google for the same rule to apply.  I have seen other instances where it seems someone has been in trouble for posting a photo that was hosted elsewhere because it was "framed" within his site.

Yes, businesses which are in my opinion unethical such as Getty Images send letters out to people who have hotlinked images as well as images which appear on a page and a frame. They depend on the ignorance of the letter recipient to pay without understanding copyright law and often when they inform Getty the image was hotlinked or framed they are told it doesn't matter they still need to pay. To my knowledge this is not correct according to law in recent cases.

We have also seen were Getty has sent demand letters out over images which are clearly in the public domain such as a picture of Henry David Thoreau taken in the early 1800s. When confronted with the facts and the fact that the letter recipient understood that this was a public domain image Getty back down and dropped the claim. This is all fine and good but how many of these letters are they sending out in collecting on public domain, hotlinked and framed images?

So to answer your statement, you may have seen where letters have been sent out over hotlinked and framed images but that does not mean they were right or they had a snowball's chance of collecting/winning in court.


I figured that was what the answer would be.  I'm aware of the copyright at time of creation rule.  In the case of celebrity gossip sites, do you happen to know if they employ their own photographers or if they tend to purchase elsewhere?  If so, does there need to be any official type of copyright transfer from photographer to source?

I would imagine they have both. I'm sure they have some photographers but I am sure many of the images are supplied by freelance photographer and paparazzi. I'm sure there contracts from the freelance/paparazzi dictate whether the image is exclusively the magazines or they are just able to print it. I am sure it is just a matter of how much money the magazine/site is willing to pay. I am sure that there would be some sort of written contract/agreement spelling out terms of use of the photographs supplied to them.

I realize that anybody can be sued for anything.  Is there any requirement to show any type of real proof before dragging somebody to court and requiring them to hire a lawyer and pay fees?

There is no requirement however in my opinion they would appear very foolish if they were to take you to court and you would be able to say that they refused to provide any proof of claim you requested prior to them suing.

Now on the other hand not answering them can work against you in the same way if they can show that you had received the letters or knew about their claim and you refused to reply leaving them the only option of suing you.

Getty on the other hand will flat out refused to provide any proof whatsoever and tell you in their letters they will only provide you the proof through discovery which means when they sue you.

This is why we tell four members that every situation is unique and different and you need to educate yourself and decide what is best for your individual situation.

Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 24, 2013, 10:04:27 PM
By no means am I asking for professional advice, but I'm curious: what would you personally do if this were your situation? 

After reading and interacting a bit, I feel that I need to take a mixed and cautious approach.  This seems to be more serious than the Getty situations but some of the people involved don't seem to always use solid methods either.  I'm formulating my own thoughts but I'm curious as to how you might handle this.

On another note, I think I bumped into mention of technical talk somewhere else on the forum.  It seemed to indicate that there are some fairly technologically minded people who have experience here.  I would be interested in getting into some of the tech details with them if they are willing.  Do specific discussions from the past come to mind? 

I have quite a range of abilities and I'm trying to do everything in my power to make this difficult, should they pursue legal action and need to find facts.  I don't intend to do anything illegal, just to put them to work if they think they need to take me to court over something that was unintentional and remedied extremely quickly.
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on November 24, 2013, 10:57:00 PM
For the tech stuff I would ask Lucia, she is on here regularly and is brilliant when it comes to the tech stuff.
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on November 25, 2013, 11:38:27 AM
Hi,
As for tech stuff:
Picscout related: It is very difficult to block the picscout bot with any degree of certainty.  It has become more difficult with time because it's easy for companies to change IP ranges, spoof user agents and so on. There are general measures you can undertake to block many bots and doing so may inhibit fast scraping and also, by reducing the amount of crawling, prevent picscout from finding any existing or future infringements. But really, it's hard to block picscout these days.  If you want to stop crawling bots, it's best to start visiting some place like spambotsecurity http://www.spambotsecurity.com/ and learn how to inhibit bots more generally.  You will also need to pick your favorite method for slowing bots, and which method you chose would affect what you do (and whether I could answer questions.)

That said: it does help to
* block many useless crawlers and visits from servers (e.g. my blog is served by Dreamhost. Any visits from IPs owned by dreamhost are not people. They are computer programs doing something. That something might be legit or it might be a crawler or something. But it's not people.)
* refuse to serve images to anything with a blank user agent. (One picscout tool used blank user agents. There really is no reason why you should permit this.)
* do not permit hotlinking of images you host.

That said: in the end these steps really only make it more expensive for something like picscout to find images on your site.  I do some of them but my main motivation is not to block picscout but to reduce server load. (I block China for that reason too.) And the difficulty is that the more stuff you block hoping it's picscout, the more often mistakes may block people. (The question then is: do you mind blocking those people. Maybe you do; maybe you don't.  If you have a commercial site selling groceries and delivering only to the US, it might be just fine to block China-- and in fact limit visits to the US.  But other commercial sites might find that problematic.)

Also: do not make the mistake that technical steps to block bots could help you much in the event that picscout does find an infringement and you go to court.  My guess is it won't.

Now, if on the other hand you have other technical questions, we can explore those. For example: if you run a forum, we've already noted that you need a DMCA agent. That's not 'tech' stuff. But you might also want to consider tweaking your software to restrict uploading images to your server and only permit hotlinking.  Code to permit you to chose such things may be a pre-coded choice in your forum software, or you might need to find an add on, extension or custom code something. There are advantages and disadvantages to permitting uploading vs. hotlinking strategy. ( Permitting uploading means someone might upload a copyrighted image.  Also: letting people upload images can often be a way to get hacked. If you permit this, you do want to leran about ZBblock.  On the other hand, hotlinking puts you at risk that someone might hotlink an innocent image. You approve it. But a few weeks later the substitute porn. etc. So, you aren't hacked or involved in a copyright violation, but your visitors might be pretty offended by being served porn. )



Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 25, 2013, 12:46:53 PM
The site is not a commercial site and is not for generating profit.  Just a hobby.  It is a self-hosted WordPress site.

I have been fighting bots, crawlers, and spammers from very early on.  The traffic from automated things brought the site to an absolute halt for a period of about a full month.  I implemented and experimented with a number of things from Akismet, to Bad Behavior, to Wangguard.  Even though many of those are meant more specifically to stop spammers, it did well to reduce the traffic enough.

I have also played with my htaccess from time to time.  I have mostly always blocked image hotlinking, with the exception of a time where I was experimenting with some rules, accidentally disabled it, and didn't re-enable it until I started to see a lot of indexed images on Google and realized it was missing.

I wonder, are there crawlers that also spoof the referrer?  If so, is there a solid way to fight them?  I am fairly certain I have done referrer spoofing for other projects in my work life.  It's also fairly simple if I remember correctly - about as easy as spoofing user agent.

My questions are more along the lines of what happens should this go to court.  For example, if PicScout is involved and it finds an infringement, is that the end of the line?  Is it trusted as an authority and the data it gathered is correct?  I've been trying to find cases from the past and I can't determine what would be considered actual proof of infringement. 

If bots like that are not considered authoritative, then what is?

I have gone to some length to have my site removed from Google and the Internet Archive completely.  Google has responded very quickly and it seems that within hours it has been completely unindexed.  The Archive is taking its time, however.  Are these things used if evidence is needed?  I'm trying to clear myself on every front so that it shows I have made a good effort to completely clean up on my end.  I'd also like there to be as little record as possible.

If records and things would end up getting subpoenaed, then what would be gathered?  And what is the likelihood it would be able to show guilt, intent, etc.?

My site is hosted with HostGator.  I can only access raw access logs within the last 24 hours.  I have my site set not to archive them, and if they are somehow archived, I have it set to delete them at the end of the week.  Do web hosts usually keep logs longer than this that you know of?  I read through their terms and they state that they keep the minimum amount of data possible.  I'm just wondering how much this is and what it shows.

The WordPress theme I was using also generates 7 images when it crunches a single image that is uploaded via media manager.  This turned out to be a lot of files over the last two years.  As a result, my account exceeded 100,000 inodes and was approaching the 250,000 limit (I have about four or five websites on the account at any give time).  Because of this, full backups of my site were not being made for at least 6 months to a full year.  Since receiving the complaint, I have gone crazy with house cleaning and my site is well below that level of inodes now.  I guess I'm wondering if there is any physical or recoverable proof that any file has ever specifically existed on my hosting.  It seems that hosts retain as little as possible to achieve DMCA safe harbor.  How does this play into all of it?

Also, the day I received the complaint I did some database maintenance.  This involved putting up a static page, pulling down a copy of the database, updating it locally, and then putting it back.  I have since created a new database with the modified data and switched to it instead of the old one.  The old one was completely removed since a newer more optimized version is in place.  I'm wondering, how much, if any, that would affect the ability to find past entries or versions.  Or if it even matters.

I know WordPress does not keep detailed logs of logins and posts.  So I basically have no records of IP addresses or access at that level.  Is it possible to match actions within WordPress to raw access logs - for example, somebody logging in, making a post, uploading a file, and then publishing?  If it is not, am I basically held responsible as the only user of the site, regardless of whether I actually am?
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on November 25, 2013, 07:07:12 PM
The site is not a commercial site and is not for generating profit.  Just a hobby.  It is a self-hosted WordPress site.

I have been fighting bots, crawlers, and spammers from very early on.  The traffic from automated things brought the site to an absolute halt for a period of about a full month.  I implemented and experimented with a number of things from Akismet, to Bad Behavior, to Wangguard.  Even though many of those are meant more specifically to stop spammers, it did well to reduce the traffic enough.
I recommend ZBBlock because, among other things, it triggers before wp-config.php loads. Standard plugins trigger after. (There is no alternative.)
I wonder, are there crawlers that also spoof the referrer?  If so, is there a solid way to fight them?
Yes. There are at least two classes:
1) Those that will spoof the root of your site. (So, if you are at http://whatever_domain.com/blog/blahblahblah , the bot will claim it came from http://whatever_domain.com/ .  Sometimes this referrer makes sense, some times there is no link from http://whatever_domain.com to http://whatever_domain.com/blog/blahblahbla . ) 

2) Those that will spoof a site they how they can lure the admin into visiting.  These can be porn, selling diet drugs etc.

 I am fairly certain I have done referrer spoofing for other projects in my work life.  It's also fairly simple if I remember correctly - about as easy as spoofing user agent.

My questions are more along the lines of what happens should this go to court.  For example, if PicScout is involved and it finds an infringement, is that the end of the line?  Is it trusted as an authority and the data it gathered is correct?  I've been trying to find cases from the past and I can't determine what would be considered actual proof of infringement.
Among other things, they need to prove to the judge (not just themselves) that you did infringe. The reason it's difficult to give examples of what is sufficient is this could vary a bit by judge.  The big question to ask yourself is if you were a third party, and heard the argument and counter argument would you consider it proof.

I can tell you if I was the third party, I would not consider a printed screen shot sufficient to show proof. The reason I would not is one cannot tell any of the following:
1) How the screenshot came into being.
2) Even if we figured out how it came into being, you can't tell whether the image is hosted on the server or hotlinked.

That said: if you get sued, any trial will be preceeded by 'discovery' and you would also be asked what you know about the image.  If Getty has the screenshot, and when asked your answer is that yes, your site displayed that image and yes you hosted it and yes, you personally uploaded it, that might be proof of infringement.   One reason is that the facts would not be disputed.  And bear in mind: Lieing is perjury. Refusing to provide information to the judge tends to look like you did display the image and so on.  So, if you did host the image and so on, recognize that this is likely to be known to the judge.

But beyond that: remember that what Getty shows you may not be all the evidence they have. They have a 'template' letter.  That letter does not show the uri of the image, it does not show html of the page and it does not name any human being who viewed the page and who might testify that he took the screenshot and saw the display with his own eyes. But this doesn't mean Getty does not have such evidence. It only means they didn't reveal it to you in their letter.  (Mind you, they may not have it. And if they don't they would likely be reluctant to file because they don't know whether you hotlinked or not and so on.)


If bots like that are not considered authoritative, then what is?
Human testimony added to teh bot info could be considered authoritative.

I have gone to some length to have my site removed from Google and the Internet Archive completely.  Google has responded very quickly and it seems that within hours it has been completely unindexed.  The Archive is taking its time, however.  Are these things used if evidence is needed?  I'm trying to clear myself on every front so that it shows I have made a good effort to completely clean up on my end.  I'd also like there to be as little record as possible.
Internet archive could be used.  One again, evidence can be ambiguous especially with images. 

If records and things would end up getting subpoenaed, then what would be gathered?  And what is the likelihood it would be able to show guilt, intent, etc.?
Depends what exists at the time of any subpoena, right?  They can't  demand something that does not exist be re-created. But bear in mind: They may have evidence they need. You don't know.

My site is hosted with HostGator.  I can only access raw access logs within the last 24 hours.  I have my site set not to archive them, and if they are somehow archived, I have it set to delete them at the end of the week.  Do web hosts usually keep logs longer than this that you know of?  I read through their terms and they state that they keep the minimum amount of data possible.  I'm just wondering how much this is and what it shows.
My guess is they don't keep logs any longer than you do. Storing that data is a nuisance and business cost for them. The real issue is what BWP has already collected and/or what you might reveal or be forced to admit.


The WordPress theme I was using also generates 7 images when it crunches a single image that is uploaded via media manager.  This turned out to be a lot of files over the last two years.  As a result, my account exceeded 100,000 inodes and was approaching the 250,000 limit (I have about four or five websites on the account at any give time).  Because of this, full backups of my site were not being made for at least 6 months to a full year.  Since receiving the complaint, I have gone crazy with house cleaning and my site is well below that level of inodes now.  I guess I'm wondering if there is any physical or recoverable proof that any file has ever specifically existed on my hosting.  It seems that hosts retain as little as possible to achieve DMCA safe harbor.  How does this play into all of it?
If it's off your server, don't worry about future discoveries.  Only worry about whether they saved html and so on.  Bear in mind: These companies tend to be very slap dash and count on scaring people. That said, we don't know with BWP.  There are a shit was of cases in the pipeline, but we don't know what ultimately happened.

Also, the day I received the complaint I did some database maintenance.  This involved putting up a static page, pulling down a copy of the database, updating it locally, and then putting it back.  I have since created a new database with the modified data and switched to it instead of the old one.  The old one was completely removed since a newer more optimized version is in place.  I'm wondering, how much, if any, that would affect the ability to find past entries or versions.  Or if it even matters.
Honestly, I think as long as you don't have a stored version of the old database, you are fine. Hostgator isn't going to be set up to sift through a mountain of data and they might pushback if asked to do so.

I know WordPress does not keep detailed logs of logins and posts.  So I basically have no records of IP addresses or access at that level.  Is it possible to match actions within WordPress to raw access logs - for example, somebody logging in, making a post, uploading a file, and then publishing?  If it is not, am I basically held responsible as the only user of the site, regardless of whether I actually am?
Are you set up multi-author? With each registered person having their own login/email/password?  If yes, you must have a roster or registered authors or contributors. Blog posts would be filed under the authors who wrote them. It's true WP won't keep the IP they used when the wrote that post, but it does keep track of the author of a particular post. (At least my WP does.). Also comments are listed under the commenter. IPs are saved for comments.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 25, 2013, 08:15:20 PM
First of all, thanks for taking the time to read through all that and give good answers.  I expected some of those things I think.

I recommend ZBBlock because, among other things, it triggers before wp-config.php loads. Standard plugins trigger after. (There is no alternative.)

Yeah, I actually scanned through a number of your threads this afternoon after your name came up.  I saw you encouraging people to use ZBBlock.  I will have to give it a shot.  I hadn't heard of that before so that's valuable information.

Among other things, they need to prove to the judge (not just themselves) that you did infringe. The reason it's difficult to give examples of what is sufficient is this could vary a bit by judge.  The big question to ask yourself is if you were a third party, and heard the argument and counter argument would you consider it proof.

I think I had read in articles about movie and music piracy that judges tend to be at the very far end of the technical spectrum and most don't understand what they are being presented.  That is kind of what worries me a little bit.  To me, I feel like I would be in the clear if I were a judge listening to evidence.  But I work with computers every day so I expect that it wouldn't seem so clear to the average person.

I can tell you if I was the third party, I would not consider a printed screen shot sufficient to show proof. The reason I would not is one cannot tell any of the following:
1) How the screenshot came into being.
2) Even if we figured out how it came into being, you can't tell whether the image is hosted on the server or hotlinked.

That's one of the things I was getting at.  I know for certain that I could easily rip the html of page, add in an infringing image, open the local page in a browser, then type in the url I wanted it to appear the infringing image came from, and then take a screen shot of the whole setup.  It would show no alteration by Photoshop or anything when checking the image.  For that reason alone, I hope a screen shot never counts as sufficient evidence.

That said: if you get sued, any trial will be preceeded by 'discovery' and you would also be asked what you know about the image.  If Getty has the screenshot, and when asked your answer is that yes, your site displayed that image and yes you hosted it and yes, you personally uploaded it, that might be proof of infringement.   One reason is that the facts would not be disputed.  And bear in mind: Lieing is perjury. Refusing to provide information to the judge tends to look like you did display the image and so on.  So, if you did host the image and so on, recognize that this is likely to be known to the judge.

I have no intent to lie or do anything illegal.  I did not upload the image personally and was honestly not even aware of it.  I would honestly answer what I am able.

But beyond that: remember that what Getty shows you may not be all the evidence they have. They have a 'template' letter.  That letter does not show the uri of the image, it does not show html of the page and it does not name any human being who viewed the page and who might testify that he took the screenshot and saw the display with his own eyes. But this doesn't mean Getty does not have such evidence. It only means they didn't reveal it to you in their letter.  (Mind you, they may not have it. And if they don't they would likely be reluctant to file because they don't know whether you hotlinked or not and so on.)

Since this is BWP, and not Getty, I have no idea what they might be using.  I honestly don't know much about the image scouring technologies that these companies use so I am a little apprehensive about that part of the situation.

Human testimony added to teh bot info could be considered authoritative.

How effective is HTML or a URL when presented by them?  I feel that much like a screen shot, those things could be falsified.  I'm not saying that they ever do that or have intent to, I'm just saying that it doesn't seem like reliable evidence.  Anybody could whip up a bot that seeks pages with relevant keywords and then inserts copyrighted image links into the html it scraped.  A person witnessing such a bot at work would be no more reliable than the bot itself.

Internet archive could be used.  One again, evidence can be ambiguous especially with images.

So far I have only received one very uninformative DMCA.  I don't know if there will be more.  The Archive has no record of that date because I must have blocked it about three or four months prior without even knowing it.

When you say that evidence can be ambiguous, is that in favor of the accuser?

Depends what exists at the time of any subpoena, right?  They can't  demand something that does not exist be re-created. But bear in mind: They may have evidence they need. You don't know.

That was my thought.  Every day longer it goes, the more likely it is that evidence will be destroyed.  That is also why I'm trying to figure out what they might have.

My guess is they don't keep logs any longer than you do. Storing that data is a nuisance and business cost for them. The real issue is what BWP has already collected and/or what you might reveal or be forced to admit.

Again, what I was thinking.  What types of things do you think someone might be forced to admit?

If it's off your server, don't worry about future discoveries.  Only worry about whether they saved html and so on.  Bear in mind: These companies tend to be very slap dash and count on scaring people. That said, we don't know with BWP.  There are a shit was of cases in the pipeline, but we don't know what ultimately happened.

It's not really future discoveries that I'm worried about.  This situation is changing the whole policy and purpose of the site, should I even decide to continue forward with it.  I believe I received a notice from the Randy Taylor that everyone has talked about here.  It seems his work hasn't always been top notch in the past.  Then I read elsewhere online that it looks like a number of these are actually going to trial.  So I don't really know what to make of the situation.  It's odd that so many are filed and some are going to court because that doesn't seem to fit the usual troll model.

Honestly, I think as long as you don't have a stored version of the old database, you are fine. Hostgator isn't going to be set up to sift through a mountain of data and they might pushback if asked to do so.

Also what I was thinking again.  HostGator is a budget host.  They are set up to do the minimum and take on a ton of people on each server.  Seems it would be too much of a pain to keep that much info.  I think I also read somewhere a few months ago that they had not been quick to turn over information in some case when subpoenaed.

Are you set up multi-author? With each registered person having their own login/email/password?  If yes, you must have a roster or registered authors or contributors. Blog posts would be filed under the authors who wrote them. It's true WP won't keep the IP they used when the wrote that post, but it does keep track of the author of a particular post. (At least my WP does.). Also comments are listed under the commenter. IPs are saved for comments.

It is multi-author.  Each does have a separate account.  There are also about 2,000 registered subscribers.
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on November 25, 2013, 11:39:24 PM
How effective is HTML or a URL when presented by them?  I feel that much like a screen shot, those things could be falsified.
Sure.  Things can be falsified. People can lie. People can be mistaken and so on.

But a judge would take testimony, listen to both sides. If an actual human at BWP said that they grabbed that html, that would be 'evidence' because testimony is 'evidence'.   The judge would decide how credible he found the source, and weigh it against other evidence (and testimony) you might supply, but it would still be evidence. And you have to recognize that all evidence has some level of imperfection, so a judge isn't going to necessarily decide that all evidence has to be perfect before it 'counts'. Lots of evidence is imperfect, but one listens to a bunch of evidence before judging what one thinks probably happened.

Collecting together as much evidence in your own favor and from as trustworthy sources as possible is useful.  This might be useful
http://www.webcitation.org/  It's at least 3rd party, and you could testify you created the archive and it matches what was online.  Could it be spoofed? Maybe. But the current state of the page is useful information for you to present it's better to archive it than to not archive it.


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When you say that evidence can be ambiguous, is that in favor of the accuser?
I don't know.  It probably depends on how flimsey it is and precisely what features are ambiguous.  With respect to the wayback: it never stored images. It stored html so it's a record of the html.  In fact, you did host the image and swapped out a different image at the uri in the wayback html, the wayback version of the page would <I>now</i> show a different image.  So, to some extent, the wayback is not especially good for the accuser-- unless they have humans filling out affidavits indicating that they views the display and html and verified that the screenshot of the way back is an accurate representation of what the wayback displayed on the day that specific human viewed the page.  Also, the accusor probably needs to store the html when taking the screenshot.

Besides that: if you weren't permitting hotlinking, images stored on your server aren't going to show on the wayback version of the pages.  So screenshots of the wayback aren't going to help BWP. They are goign to need html, and collect a file of stuff to persuade the judge.

As for the more general question of who ambiguous evidence favors:  would be a civil suit, so the judgement is based on balance of evidence-- that is which person the judge believes more-- so pretty much 51/49 calls favor the person on the '51' side of the balance.  In contrast, a criminal trial is beyond a reasonable doubt. 

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That was my thought.  Every day longer it goes, the more likely it is that evidence will be destroyed.  That is also why I'm trying to figure out what they might have.
If there is something in your favor you need preserved, preserve it. Some free online archiving systems exist (www.webcitation.org). You can get them to archive pages that show current conditions at least.  If archives of current pages favor you, archive them. And make sure you archive each necessary bit separately. (Example: it will archive whatever page you ask it to. If you need to archive the uri's for images to prove they were hot links-- do that. And so on. I know you are saying you just don't know where the image ever was-- but archiving the page with no image on it would be useful.)

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Again, what I was thinking.  What types of things do you think someone might be forced to admit?
I don't know. I assume during discovery, they would ask you to say whether the image was hosted on your machine. If you hosted it on your machine, you would likely need to divulge that. If you don't know, you don't know and you get to say that. Or, if you know it was hotlinked, you get to say that.

Though-- actually-- I'm not sure precisely what limits exist on discovery. I know they can only ask you relevant stuff-- but the judge would likely deam questions about hosting the image relevant.

Likewise, you could ask them to provide you any html they had, what logs they have, documents pertaining to copyright registrations, contracts with authors and so on.  They can't just keep that all a big super dark secret.

It might be possible they can call you to the stand and ask whatever relevant questions they want.   I don't know how the 5th amendment comes in here-- but this wouldn't be a criminal trial and nothing you did was criminal. So really, the 5th probably doesn't protect you at all.  I'd guess you'd probably have to answer questions asked in any trial.   But really, you need to ask an attorney how broad discovery might be.

Bear in mind: discovery can only happen after the file a suit, pay some filing fees and so on.

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It's odd that so many are filed and some are going to court because that doesn't seem to fit the usual troll model.
It's not the getty model.  But that doesn't necessarily mean it's not the model.  Porn trolls have gone to court, though with some rather 'interesting' methods.


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It is multi-author.  Each does have a separate account.  There are also about 2,000 registered subscribers.
Basically, that's what you would tell a judge if your defense was that you didn't upload. But your lawyer would have to advise you whether that defense would help.  (Ordinarily, this is precisely the situation that DMAC protects you in.  That said, my impression of what happens if you don't have a DMAC agent is 'we don't really know'. That is: DMAC protects you if you have an agent. But.... are you liable for someone else's uploading otherwise? Dunno.  Congress thought we needed DMAC to ensure protection under some circumstances, but that doesn't necessarily mean that people were unprotected pre-DMAC but they certainly might have been unprotected.  But once again: that's the sort of thing good IP attorney would advise you on.  )
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 26, 2013, 11:50:12 AM
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If there is something in your favor you need preserved, preserve it. Some free online archiving systems exist (www.webcitation.org). You can get them to archive pages that show current conditions at least.  If archives of current pages favor you, archive them. And make sure you archive each necessary bit separately. (Example: it will archive whatever page you ask it to. If you need to archive the uri's for images to prove they were hot links-- do that. And so on. I know you are saying you just don't know where the image ever was-- but archiving the page with no image on it would be useful.)

It's not so much that I'm looking to archive it in the state it was.  It's more that I'd like it to be uncertain whether it ever existed in that state or not, especially if all they have is a screenshot. 

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As for the more general question of who ambiguous evidence favors:  would be a civil suit, so the judgement is based on balance of evidence-- that is which person the judge believes more-- so pretty much 51/49 calls favor the person on the '51' side of the balance.  In contrast, a criminal trial is beyond a reasonable doubt.

I think it's the difference between civil and criminal that I was trying to understand.  I wanted to determine if evidence needed to be beyond reasonable doubt.

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Likewise, you could ask them to provide you any html they had, what logs they have, documents pertaining to copyright registrations, contracts with authors and so on.  They can't just keep that all a big super dark secret.

I have not heard anything in response from them yet.  If I do, those are things I am hoping to ask for prior to a trial so that they know I am serious and this is not going to be easy money.  I don't know what they will volunteer initially if they are trying to get a payment out of me.  I will attempt to feel out the situation if we do have further contact.

As I may have mentioned elsewhere, it looks like all the other cases filed so far are against much larger entities.  I'm really just a nobody with a website directed at a very specific and small group of people.  I hope that they discover that and realize there is no money to chase here. 

I have been discussing on another website as well.  This morning I read a comment from somebody who said the notice he received included screen shots.  His CMS sounds like WordPress, in that it must create different image sizes and thumbnails and then push them out to various pages based on categories, tags, post listings, etc.  He said a screen shot of each image, including thumbnail sizes was included and each was listed as a separate infringement.  Do you happen to know how that factors in if it would go to trial?  Could each size and use truly be counted as a separate infringement?  That is where I would think it would be essential for them to have the html on file because then they could compare image names in the html.
Title: Re: Received a Complaint from BWP Media USA
Post by: Jerry Witt (mcfilms) on November 26, 2013, 01:42:50 PM
I know it is after-the-fact, but I would encourage you to file as a DMCA agent:

http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on November 26, 2013, 01:45:32 PM
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It's not so much that I'm looking to archive it in the state it was.  It's more that I'd like it to be uncertain whether it ever existed in that state or not, especially if all they have is a screenshot. 
I understand all they gave you was a screenshot.  But as a blogger, I don't quite know why the fact that all they have is a screenshot affects your ability to know the state of your web page.  I can know stuff about my web pages based on my own access to the page. So I can determine what the state of the page is on any given date.  And my blog doesn't just go around randomly changing itself (unless it gets hacked. And if I was hacked, that might be a defense on a copyright violation!)

So I find myself asking: did you look at the html on the day you got the letter? Did the image appear on the page on the day you got the letter? Was there any element on the page (e.g. javascript ads) that might have contained the image they show in their screenshot? You don't need to answer that here. But you seem to want to know what constitutes 'evidence'.   If this got to court and advanced the defense that you think the image might not have been on the page and speculate that their screenshot might be photoshopped or faked or what have you, and I was the judge, I would want to know all these things I asked above. All would seem to be in your power to know. And rather than just hear you don't know whether the image ever appeared, I guess I'd want to know the state of the page on the day when you got the letter (or at least before you modified it to remove the image. Except... you didn't remove the image... right?)   So: your own screenshot of how it appeared on the date when you got the letter, an archive showing the html and so on would be useful to counter any BWP's screenshot.

It seems to me that if you did not modify the page and the image was not appearing on the date you got the letter, you would want to archive the html of that page on the date you got the letter.

Obviously, you can't archive things that currently no longer exist. If you were sued, what you do know, how you know it, and what evidence you  have to corroborate what you do know is the sort of thing that would come up in testimony.  That is: it might buttress you case to say that
(a) You believe you never uploaded anything of the sort and if you ever did, you certainly don't remember it.
(b) You have an archive showing what existed on the day you received the letter and that archive showed that the image was not on the page on the date you received the letter.  (That is: before you modified it to comply with their request.)

I guess what I'm thinking is that instead of merely trying to focus on whether you think there evidence is weak, think about what counter evidence you could have to show that you didn't copy that image.  You run the site. You can take screenshots, grab html and so on.  If your own screenshots, html and so on show the image did not display, that's in your favor.  If your memory is fuzzy, you really ought to at least show that the image does not display at your site. That would than put the other side in the position of having to advance a theory of how the images does display in their screenshot.

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I think it's the difference between civil and criminal that I was trying to understand.  I wanted to determine if evidence needed to be beyond reasonable doubt.
No; beyone reasonable doubt is not the standard in a civil suit.   Watch "The People's Court".  You'll see there is no balance in favor of the defendant or the plaintiff and formally it's absolutely the case that preponderance.  The person who has 51% of the evidence in their favor is supposed to win.  That said, I'd say the defendant has a little edge.  If the plaintiff makes a claim and provides zero evidence other than saying "X happened".-- and I mean absolutely zero-- and the defendant just said "No. X didn't happen" providing zero evidence it didn't happen. The judge rules for the defendant.  Notice that's just "He said; she said." but judges do want plaintiffs to show some evidence before dragging someone to court. 

But if you watch a while, you'll also see that the plaintiff is not expected to have flawless evidence.  Plaintiffs will come in with photos, and judges look askance at defendants whose only counter evidence is "ever hear of photo shop?" Yes. Photos can be faked. But if the plaintiff has a photo, and testifies that they took that photo and it is not faked, that's evidence.

All in all, it's best to have archives to show what you can that might cast doubt on their "evidence".  So: for example, if you were to look at their screenshot and your html, find the element that seems associated with the spot where they show the image, discover that element is embedded javascript for an ad, then you could pretty confidently say;
(a) I don't remember ever uploading or seeing that image.
(b) You can see that spot where the image displays corresponds to javascript from an ad. That is: it's hotlinked. You could explain how the ads work (many judges surf the web, so they would understand how google ads and other similar ads work.)
(c) You would cite Perfect 10 about hotlinking and so on.

In this context, if you had an archive of the state of the page at the time you got the letter, your position would be stronger than merely saying "screenshots aren't proof".


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I have not heard anything in response from them yet.   If I do, those are things I am hoping to ask for prior to a trial so that they know I am serious and this is not going to be easy money.  I don't know what they will volunteer initially if they are trying to get a payment out of me.  I will attempt to feel out the situation if we do have further contact.
If they are like Getty, they will volunteer nothing and just maintain that they are right and you are wrong, explain that copyright exists even if they didn't register (which is true, but still not responsive to why you would want to see the registration) and make it sound like they really believe they are the judge, jury and executioner, that they don't have to show you anything at all and that you have to pay.  And it's true that until they sue, they don't have to show you anything. But it's equally true you don't have to show them anything or pay them anything and so on.

However, should they sue, you get discovery, you both present your cases to a judge. The judge decides.


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I have been discussing on another website as well.  This morning I read a comment from somebody who said the notice he received included screen shots.  His CMS sounds like WordPress, in that it must create different image sizes and thumbnails and then push them out to various pages based on categories, tags, post listings, etc.  He said a screen shot of each image, including thumbnail sizes was included and each was listed as a separate infringement.  Do you happen to know how that factors in if it would go to trial?  Could each size and use truly be counted as a separate infringement?  That is where I would think it would be essential for them to have the html on file because then they could compare image names in the html.
Wordpress does create images in various sizes when you upload. That's its default behavior. As its the default, and it creates default names, a bot that finds one image could be programmed to find all the images.  Technically, it's copying   '.jpg/.png/.gif' file to your server and displaying the image file is the infringement.  That fact that it can be loaded without loading a page means that when it comes down to brass tacks, I think the proof of infringement is showing the url of the image or images, not the page (or pages) in which the images is embedded. So, yes, it's possible that each of these images might be an infringement in and of itself. But a judge would have to decide on on that.  If your friend gets sued, he needs a lawyer to guide him on whether it's worth arguing that it's only 1 infringement, finding precedents, discussing the issue of 'de minimus' and so on.    Whether any of your pages display the images might be considered important by a judge-- I just don't know.  But at least hypothetically, each size might be an infringement.

Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 26, 2013, 02:03:15 PM
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I know it is after-the-fact, but I would encourage you to file as a DMCA agent:

http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/

I am in the process.  It's information I wish I had known in the past.  I was always under the impression that if you had a clearly defined contact area with a DMCA type form and you acted quickly then you would be safe. 

Do you think filing for safe harbor soon after will show good intent?  I'm going to file in any case.  I'm just wondering if a judge would see that as you taking steps in the right direction and that it might help past evidence in light of that.  I guess it could go the other way too in the sense that it looks like you're running for cover for future "infringements". 
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 26, 2013, 02:27:07 PM
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I understand all they gave you was a screenshot.  But as a blogger, I don't quite know why the fact that all they have is a screenshot affects your ability to know the state of your web page.

You're right, it doesn't affect my ability to know the state of the page.  I think my fear is that the questioning would go something like:

"Did you know this image was on your page before receiving a complaint?"

"No"

"Did you look at the page before you removed it?"

"Yes"

"Did you see an image uploaded to your server?"

"Yes"

"Guilty"

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(unless it gets hacked. And if I was hacked, that might be a defense on a copyright violation!)

I can prove that there have been thousands of attempts to hack my block.  I have bad behavior logs and more that show attempts to log in and break security.  I can't say that anybody did ever successfully get in, but I see that plenty of attempts have been made.

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So I find myself asking: did you look at the html on the day you got the letter? Did the image appear on the page on the day you got the letter? Was there any element on the page (e.g. javascript ads) that might have contained the image they show in their screenshot? You don't need to answer that here. But you seem to want to know what constitutes 'evidence'.

That's a very good point.  I probably have been seeing this a little one-sidedly.  It's a good idea to start seeing just how much evidence I can collect in my own favor instead of just relying on how shoddy theirs may or may not be.

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(or at least before you modified it to remove the image. Except... you didn't remove the image... right?)

I removed everything.  I all files on that page from the server and removed it from my database.  I'm not saying I do or don't have a complete backup in case they would happen to somehow be gleaning evidence from this page.   

Quote
That is: it might buttress you case to say that
(a) You believe you never uploaded anything of the sort and if you ever did, you certainly don't remember it.
(b) You have an archive showing what existed on the day you received the letter and that archive showed that the image was not on the page on the date you received the letter.  (That is: before you modified it to comply with their request.)

I have recently implemented a basic login log.  If nothing else, I would intend to show that the users do in fact log in.  I could potentially match the most recent IP address of the user who posted it, though I don't know if it would matter much since it is a new address and not one recorded on the actual day the complaint was filed.  I can't retroactively put it in place but it may help to be able to present the current state of some things.

Quote
If your memory is fuzzy, you really ought to at least show that the image does not display at your site. That would than put the other side in the position of having to advance a theory of how the images does display in their screenshot.

I can show currently that the image does not display and that the page that contains the image is now gone.

Quote
But if you watch a while, you'll also see that the plaintiff is not expected to have flawless evidence.  Plaintiffs will come in with photos, and judges look askance at defendants whose only counter evidence is "ever hear of photo shop?" Yes. Photos can be faked. But if the plaintiff has a photo, and testifies that they took that photo and it is not faked, that's evidence.

Understood.  I think the question I was really asking was more along the lines of, would it be absurd to produce my own photoshopped evidence as a counter to prove that a screen shot is not sufficient?  I would obviously state that the image is not real and point out the convincing elements of it that would show another screen shot that is just as convincing is not applicable.  I saw a scanned copy of a complaint someone else put online from this same round of trolling.  It is definitely a bunch of screen shots that look terrible.  It seems their evidence, at least at the "pay us now" stage is merely screen shots and urls.

Quote
In this context, if you had an archive of the state of the page at the time you got the letter, your position would be stronger than merely saying "screenshots aren't proof".

That's assuming that the user never uploaded the photo to my page and it really was either hotlinked or displayed by an ad.  I feel pretty safe if that is the route.  I'm coming at this from all angles at once.  The angle I'm trying to figure out is how to deal with it in the event that the image was uploaded to my server and having such an archive would show that it was.

Quote
If they are like Getty, they will volunteer nothing and just maintain that they are right and you are wrong, explain that copyright exists even if they didn't register (which is true, but still not responsive to why you would want to see the registration) and make it sound like they really believe they are the judge, jury and executioner, that they don't have to show you anything at all and that you have to pay.  And it's true that until they sue, they don't have to show you anything. But it's equally true you don't have to show them anything or pay them anything and so on.

Yes, that is the valuable information I have learned from reading all over this forum.  I had no idea that this sort of thing was happening out there.  I was previously living in this happy little bubble where people issued proper DMCA notices and honest parties complied and it was never an issue again. 

Quote
That fact that it can be loaded without loading a page means that when it comes down to brass tacks, I think the proof of infringement is showing the url of the image or images, not the page (or pages) in which the images is embedded.

I would expect that actual proof would consist of the direct URL to the image.  But I deal with rational people who also believe this is useful information.  I have learned that I shouldn't expect so much from trolls.
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on November 26, 2013, 04:00:08 PM
My head is spinning a bit here.  The reason my head is spinning is your saying
Quote
"I'm coming at this from all angles at once.  The angle I'm trying to figure out is how to deal with it in the event that the image was uploaded to my server and having such an archive would show that it was"
.   If you have an archive, then you have that archive and you can figure out whether that hypothetical is relevant to your case. It seems to me that you can look at the html and figure out if that archive does or does not contain html that would have rendered an image in the spot on their screenshot where BWP displays it. And if you find that image link (or link to whatever resource) it seems to me that you would likely have looked at that html to see if the image file was on your server or not. And you would likely have looked at the file  to see if it was or the image BWP says it was.  So: I cannot help but believe you know which "angle" applies to your case.  (I can understand why it's in your interest to not say which on this thread. No matter which angle applies in your interest to keep BWP in the dark until such time as you are ready to communicate.  But I should think you know which angle applies.)


Now, assuming the archive helps you-- that is, the image either does not display, or is hotlinked and so on-- the open question I could see where you might be at risk is if your user logged in, uploaded a file, displayed it a while. During that time BWP found the image, took the screenshot and so on. Then AFTER that, your user logged in, removed the file, modified the post. And then even later, you got the letter from BWP.   In that case: your evidence would have been collected after the image file was removed-- so your archive would show that *on the day you got the letter* the image was not there.    So, I can see where you might feel this is not the most conclusive evidence  in the sense that you might still be responsible for any copyrightviolation- but if the image was displaying on the day you got the letter and/or the image was not on your server, it is in your interest to archive that because there is nothing about archiving a page that shows no infringement that can harm you.  If your concern is about the other user, but the archive shows no infringement, I'd say: archive.  Doing so will require BWP to do more work to establish infringement-- they will need dates and so on.


On this:
Quote
I could potentially match the most recent IP address of the user who posted it, though I don't know if it would matter much since it is a new  address and not one recorded on the actual day the complaint was filed.  I can't retroactively put it in place but it may help to be able to present the current state of some things.
I suspect you can very easily convince a judge that you run a multi-user blog. Also, that the blog post was associated with another users.  I'm guessing you have an email of the other  user anyway and so on.  Don't put things retroactively in place. You just want to be able to say what was on that page ane explain the baisis of your knowledge.    Anyway, it's likely good if you did keep the html of the blog post-- if you get sued, you'll want to show that to your attorney as who uploaded might matter for the case.  Or it might not. I don't know. (This is where having a DMCA would have been wise for you. But that's water under the bridge.)


Quote
Understood.  I think the question I was really asking was more along the lines of, would it be absurd to produce my own photoshopped evidence as a counter to prove that a screen shot is not sufficient?
Not absurd. But a lawyer could better advise if it's a good tactic.  It may or may not be.

For example: If I were the judge (which I'm  not) or on a jury, I would (a) already totally understand that a screenshot can be photoshopped or faked and (b) realize the fact that it can be doesn't mean it was faked.  It's just like "People can lie". That doesn't prove that anyone in particular is lying in any particular case.  So, making this as proof would be pointless. <i>I already know this.</i>  Moreover, I would expect the plaitiff (BWP) to bring in html -- that is more than a screenshot-- because I would want to see proof the image was on your server and so on. So, for me, "proving" that photo shop exists would be pointless.  But you would have to talk to an attorney about that. Maybe it would be useful. I don't know.   

Quote
I would expect that actual proof would consist of the direct URL to the image.
I think actual proof of infringement would require this to be shown in court.  That doesn't mean it has to be in the letter they send a blog owner. But presumably if you took down the post and looked at the html you know whether the html contained a link to an infringing image hosted on your sever. If it did, they may already have that uri, or, if they sue you, they can ask you what you know about the image during discovery and also in court.   
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on November 26, 2013, 04:16:48 PM
Quote
So: I cannot help but believe you know which "angle" applies to your case.  (I can understand why it's in your interest to not say which on this thread. No matter which angle applies in your interest to keep BWP in the dark until such time as you are ready to communicate.  But I should think you know which angle applies.)

Correct.  I know which applies.  I know some of the trolls check these forums.  Just trying to keep some secrecy here in case they would attempt to connect dots.

Quote
I suspect you can very easily convince a judge that you run a multi-user blog. Also, that the blog post was associated with another users.  I'm guessing you have an email of the other  user anyway and so on.  Don't put things retroactively in place. You just want to be able to say what was on that page ane explain the baisis of your knowledge.

I added the logging ability yesterday as part of my general plan to beef up the site and make it more resistant should something ever happen again.  I suppose it doesn't matter one way or another if I don't attempt to bring that into the equation.

Quote
I think actual proof of infringement would require this to be shown in court.  That doesn't mean it has to be in the letter they send a blog owner. But presumably if you took down the post and looked at the html you know whether the html contained a link to an infringing image hosted on your sever. If it did, they may already have that uri, or, if they sue you, they can ask you what you know about the image during discovery and also in court.

Do we know details of any case that has gone to trial?  If so, is there any mention of what means were used in the end to prove the infringement?  I have attempted to look at various scanned documents.  I admittedly understand very little of what I read in legal documents.
Title: Re: Received a Complaint from BWP Media USA
Post by: Oscar Michelen on December 07, 2013, 03:09:02 PM
BWP Media has not gone to trial on any claim. Almost all of them have settled right after filing I don't know that they want to take a case to the wall. They are in it for quick resolutions and payments. 
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on January 10, 2014, 03:02:52 PM
First of all, thanks for responding Oscar.  I appreciate you taking the time.

Now, well, it happened today.  Almost exactly 8 weeks from my response to the claim filed with domains by proxy, I received a paper letter.  I was hoping I was in the clear because it took so long.  In fact, I almost posted earlier before receiving the letter as an update.

It does not include a pending docket number or anything like other examples I have seen.  It is just printed on regular printer paper like you would buy for yourself at the store.  It's even pretty crappy inkjet printing.  The letter advises to do all business via phone or email, no mention of paper.  It was not delivered certified.

It contains mention of a single "infringement".  Just a screen shot and a web address.  Nothing more in the way of evidence.  The first four pages are basically a copyright "tutorial" convincing me of why I should pay a settlement.  It does not suggest a settlement amount, which I thought was generally considered a good thing to ask for when demanding a settlement before a lawsuit.

Any progress or reports from anybody else who has received?  Are you waiting it out?  Did you respond past this phase?  I have a response almost formulated to send but I'm going to sleep on it for a few days to decide if I will even respond.

Has any of these gone to trial as far as anybody knows?  There doesn't seem to be any type of discussion of how serious these guys are anywhere on the net.  I check the Justia listings every day and watch the numbers of trials go up against LLCs.  I also saw Sandra Rose's impending lawsuit has made a bit of a splash in the new year.  Anybody have any helpful new info?
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on January 13, 2014, 08:00:42 AM
don't call, don't email, the fact they sent it regular snail mail, means they don't even know if you received it..Let them think you didn't.. does the URL included point to the image path? if not this proves nothing, nor does the screen shot. Everything previously mention in this thread still applies..
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on January 14, 2014, 09:42:52 PM
Thanks, Robert.  While I have read a number of things here, I have only just now really started to get into the video content.  I have been playing the audio in the car and using every free moment I get to listen to the wealth of information.  I have appreciated your participation in the discussion, especially in the bits I listened to today.

While I agree with all of what you said above, I do want to show that I made a good faith effort, should things go to trial.  I had to laugh earlier this week when someone called conversing with Getty "jousting with clowns".  By no means do I have a desire to do anything with clowns, even though this is not Getty.  Today I finalized the first and only letter I intend to send.  I have admitted nothing and requested substantial proof.  It will be sent certified.

In addition to requesting proof, I have made a strong statement of objection to the heavy handed methods employed that includes a guarantee of what authorities I will contact should the baseless claims continue.  In particular, it included a statement I heard you mention you would now make if you could go back to your own beginning. 

I know this is far from over but I feel a great relief now that I have finally written this.  I will feel even more relief after I send it tomorrow.  At some point I intend to share my own case so others can benefit.  The time is not right for that quite yet, however.
Title: Re: Received a Complaint from BWP Media USA
Post by: stinger on January 15, 2014, 11:03:35 AM
Welcome to the fight, JL.
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on January 15, 2014, 03:47:46 PM
I agree with you JL, that a good faith effort should be made but I strongly recommend that no payment of any kind will be sent even if they agree to your amount without proof of claim.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on January 15, 2014, 04:10:38 PM
I fully agree, Greg.  No money will be leaving my pocket until sufficient proof is provided, whether I am right or wrong.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on January 17, 2014, 10:45:09 AM
The observed date on the letter I received is from several months ago.  Is that the date that will be used for the statute of limitations?  If so, I'm almost a year into my waiting period...
Title: Re: Received a Complaint from BWP Media USA
Post by: stinger on January 17, 2014, 12:35:37 PM
The statute of limitations actually starts from the day they discover the mis-use.  So the question becomes, what is the earliest day you can prove that they had made the discovery.  Usually that is their first contact with you.  But if they send you their "proof" document and it happens to have an earlier date on it, that would seem to be the date the courts would use for when they discovered the mis-use.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on January 17, 2014, 03:22:40 PM
The document they sent me has a discovery date that is a number of months ago.  I'm going to go with this date since they chose to send it to me.  Looks like I'm almost 1/3 of the way through this fight already.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on January 17, 2014, 03:56:00 PM
to err on the side of caution always use the date that is on the first letter..
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 05, 2014, 09:35:30 PM
I've been trying to follow up on some of the other BWP/Sanders cases.  Can anybody decipher what happened here - http://dockets.justia.com/docket/california/cacdce/2:2013cv04851/565945 ?  Do these documents basically indicate that they settled out of court?  There is more than a slight learning curve for me with all this legal reading.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on February 06, 2014, 10:34:41 AM
I've been trying to follow up on some of the other BWP/Sanders cases.  Can anybody decipher what happened here - http://dockets.justia.com/docket/california/cacdce/2:2013cv04851/565945 ?  Do these documents basically indicate that they settled out of court?  There is more than a slight learning curve for me with all this legal reading.


Looks to me that BWP filed the case with the court but failed to serve the defendant with papers within the required time frame..could be that Goodreads Inc. avoided being served..or maybe BWP Media simply dropped the ball. Either way they were ordered within 20 days to basically explain, why they filed but failed to serve the opposing party..the case was closed on 12/5/13 as BWP waived their rights to continue.

NOTE: I'm not an attorney, but I did sleep at a Holiday Inn last night ; )
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 06, 2014, 10:39:48 AM
That's very interesting.  That's actually what I was hoping it meant but I went with settled outside of court because I wasn't sure.  I know this is one case out of hundreds now - so it is hardly a trend or indicator - but would you think it means they realize they don't have much in the way of an actual legal case in these matters?  My inclination is to think they played the scare tactic game all the way to court for as long as possible and then had to give up when they knew it would cost more than it was worth/they would lose.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on February 06, 2014, 11:13:22 AM
That's very interesting.  That's actually what I was hoping it meant but I went with settled outside of court because I wasn't sure.  I know this is one case out of hundreds now - so it is hardly a trend or indicator - but would you think it means they realize they don't have much in the way of an actual legal case in these matters?  My inclination is to think they played the scare tactic game all the way to court for as long as possible and then had to give up when they knew it would cost more than it was worth/they would lose.

That's certainly a possibility, however thats not something they would want to do on a repeated basis, as it would become apparent, they are wasting the courts time. My feeling is that it also did not settle, I'm sure if they spent the cash to file, they would certainly make the defendant at least answer, and then maybe settle out of court. I have a feeling good reads just avoided being served. I could be wrong on this, it's just a hunch I have not based on anything.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 06, 2014, 11:56:26 AM
I was reading about people who avoid being served yesterday as part of an unrelated incident.  It seemed that in the event a person avoided being served, there was a final option that allowed the person to be served without being directly served (sorry, I don't remember the exact terminology).  I would think Sanders would choose this option or else it could also send the message that if you are able to avoid being served long enough they will leave you alone.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on February 06, 2014, 12:23:45 PM
I was reading about people who avoid being served yesterday as part of an unrelated incident.  It seemed that in the event a person avoided being served, there was a final option that allowed the person to be served without being directly served (sorry, I don't remember the exact terminology).  I would think Sanders would choose this option or else it could also send the message that if you are able to avoid being served long enough they will leave you alone.

If the company has a registered agent, they can be served that, it's exactly what Getty has done with the most recent outbreak of single image suits, it's much easier and cheaper to a registered agent if a company has one.. If not it's a bit more difficult..don't answer the door, make oneself scarce, go on an extended vacation...
Title: Re: Received a Complaint from BWP Media USA
Post by: Lettered on February 06, 2014, 04:32:43 PM
If I understood Oscar's post in another thread correctly, avoiding service can be a costly mistake, I think he addresses the type of service that JLorimer was alluding to as well ... unless I misinterpreted:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-files-3-new-lawsuits-over-single-images/msg17478/#msg17478



I was reading about people who avoid being served yesterday as part of an unrelated incident.  It seemed that in the event a person avoided being served, there was a final option that allowed the person to be served without being directly served (sorry, I don't remember the exact terminology).  I would think Sanders would choose this option or else it could also send the message that if you are able to avoid being served long enough they will leave you alone.

If the company has a registered agent, they can be served that, it's exactly what Getty has done with the most recent outbreak of single image suits, it's much easier and cheaper to a registered agent if a company has one.. If not it's a bit more difficult..don't answer the door, make oneself scarce, go on an extended vacation...
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 06, 2014, 04:34:36 PM
I have no desire to avoid should it come down to that.  I just find the whole process interesting and I'm trying to learn as much as I can.
Title: Re: Received a Complaint from BWP Media USA
Post by: scraggy on February 07, 2014, 12:03:01 PM
Excellent article here

Is BWP Media The New Photo Copyright Infringement Troll?

http://www.iptrademarkattorney.com/2013/08/attorney-copyright-troll-infringement-photo-agency-bwp-dmca-17-usc-512-safe-harbor.html

It seems that BWP has filed over 50 lawsuits. Far be it for me to advise this rather aggressive copyright troll, but copyright trolls make their money by threatening lawsuits, and scaring people into settling, or coercing them to settle because it makes economic sense ( cheaper than hiring to lawyer to defend you! )

The biggest mistake a copyright troll can make is to actually get to court, risk a loss or a low valued judgement, and then lose the element of fear.

The above article concludes with the words " Hopefully BWP's copyright strategy will soon replicate Righthaven's and Prenda Law's demise."

Yes, they may soon be in good company!

Filing 50 cases creates too much noise and backlash, and judges don't like it! Here is an example of one such case where it seems that they have no chance!

http://www.the-digital-reader.com/2013/07/15/goodreads-hit-with-infringement-lawsuit-over-photos-uploaded-by-users/#.UvT8v86geaI

Ian
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on February 07, 2014, 12:38:35 PM
Good finds Scraggy, these BS suits could also hurt Getty's chances of getting favorable results from their latest rash of suits as well...Once one judge somewhere, see's this as trolls trying to use the court system as a collection agency and wasting their time, it will hopefully go down the same road as Righthaven and Prenda.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 07, 2014, 12:43:42 PM
Thanks, Scraggy.  I had read these articles early on when I first got my letter and forgotten about them. 

I checked out the list of registered DMCA agents and Goodreads is definitely registered.  It seems BWP has absolutely no case and should have known it from the start. 

How do you think this information plays into what I posted from this http://dockets.justia.com/docket/california/cacdce/2:2013cv04851/565945 the other day?
Title: Re: Received a Complaint from BWP Media USA
Post by: scraggy on February 07, 2014, 01:53:36 PM
Ha! A known Marot Images (Getty Images) tactic - sending a DRAFT LAWSUIT together with the initial settlement demand letter. This is a very intimidating tactic!

http://www.fairfaxunderground.com/forum/read/40/1260743.html

See the above link for the 17 pages received by a certain Cary Wiedemann, from the lawyer representing BWP Media USA - Sanders Law , PLLC

Ian
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 07, 2014, 01:57:44 PM
I'm actively following that case as well.  I've discussed a bit with some of the members there.  The thing that troubles me about that one is that Cary never responded to update on the progress of it, despite numerous requests.  I wish I could find out what had happened there, if anything.
Title: Re: Received a Complaint from BWP Media USA
Post by: scraggy on February 07, 2014, 02:24:30 PM
Have you looked up the Copyright registration number of the image in your case ?

http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First

Seems to me that images may have been registered to a company other than BWP. As with RIGHTHAVEN, one cannot transfer ONLY the right to sue, and a sham transfer of rights would unlikely be valid.

Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 07, 2014, 02:36:17 PM
I have looked it up.  The images are registered to copyright claimant Pacific Coast News.  There are two other names associated with it as well as Pacific Coast News (I believe these were the original photographers). 

BWP is doing business as Pacific Coast News.

I don't know much about transfer or the other names listed on the registration. 
Title: Re: Received a Complaint from BWP Media USA
Post by: scraggy on February 07, 2014, 02:44:04 PM
Sounds like RIGHTHAVEN all over again!!

Sham Copyright Transfers And Lawsuits!

http://www.techdirt.com/articles/20110517/15004814304/righthaven-facing-class-action-lawsuit-over-its-sham-copyright-transfer-lawsuits.shtml

Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 07, 2014, 02:54:18 PM
It looks like I have some reading up on Righthaven to do.  I'm going to check it out now, but if you know some important bullet points from the situation, would you mind sharing?
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on February 07, 2014, 02:59:22 PM
It looks like I have some reading up on Righthaven to do.  I'm going to check it out now, but if you know some important bullet points from the situation, would you mind sharing?

In a nutshell Righthaven "purchased" the rights to news articles, from the newspaper publisher..bloggers would post / repost the articles and comment on them, RightHaven would then file suit for infringement.. Turns out Righthaven never had the right to sue in the first place and was in cahoots with the newpaper, whom I don't think owned the copyrights either...I would strongly suggest reading up on the case, if for no other reason just to get a glimpse of how these a-hole trolls operate and try to twist the rules to their benefit.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 07, 2014, 03:10:16 PM
I just found a few articles and started reading.

I don't know too much about "doing business as" and everything that goes with that in relation to companies.  Is that similar to the way Righthaven went about things?  In the case of BWP, all the photos are registered to Pacific Coast News.  All of the threats go out saying BWP d/b/a Pacific Coast News.  It seemed like a non-issue to me when I read it.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on February 07, 2014, 03:27:27 PM
it probably is a non issue, as they are one and the same..in regards to DBA, the real question remains as to who actually owns the copyright for the images, BWP Media or the DBA would have to have a valid transfer from the photographer or would have to show that the images were created as a "work for hire", which would also need to be documented in some fashion, such as having the photog on the company payroll.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 13, 2014, 05:43:47 PM
Things seem a little silent on the BWP front.  I haven't seen a new lawsuit filed by them in the last week and a half or two, at least. 
Title: Re: Received a Complaint from BWP Media USA
Post by: Oscar Michelen on February 16, 2014, 03:35:07 PM
My firm has just actually been contacted and retained by a company sued by BWP Media last week so they are still filing suits here and there. 
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 19, 2014, 09:59:19 PM
I see that newer lawsuits are now showing in the places I check. 

I was reading through one of the documents in the Ain't It Cool suit - http://ia700607.us.archive.org/0/items/gov.uscourts.txwd.675638/gov.uscourts.txwd.675638.1.0.pdf

I don't know if I hadn't noticed before, but they refer to the Perfect 10 v Amazon case.  Isn't that actually less in favor of BWP?  It seems odd that it is mentioned.
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on February 20, 2014, 09:47:46 AM
Hmm.... It's more complicated than that. I'm going to put general stuff up, and then way too much  information after.  Note: I am not a lawyer.

In some places, citing Perfect 10 is fine. For example: distinguishing between a 'transitory transmission' and something fixed. So, the earlier ones are saying nothing more than "the made a web page" and that's "static enough".   But the place where Perfect 10 would seem to be a really stupid thing for BWP to cite is here:

In the event that the Photograph(s) were hyperlinked into the Website(s), and
thereby not stored directly on the Defendant(s) servers, Defendant(s) are liable as contributory
infringers
since they had actual and/or constructive knowledge of another's infringing conduct
and induced, caused and/or materially contributed to that conduct.
(See e.g., Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d. 1146, 1171 [9th Cir. 2007]; Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 929-30 [2005]; A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004,
1019 [9th Cir. 2001]; Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 [1984]).


Perfect 10 v. Amazon does block the possibility of hyperlink being direct infringement.

Note that BWP doesn't seem to be trying to get them for direct infringement, but rather contributory infringement.  This is more complicated.  To me, the key problem with BWP is they don't have any theory about how the contributory infringement occurred. That is: they need to suggest some mechanism whereby the people hosting the site induced a site visitor to copy the images and the need to show quite a bit more.

But this claim by BWP is important:

For example, Defendant(s) have caused enabled, facilitated and materially
contributed to the infringement complained of herein by, providing the tools and instruction for
infringement via their Website(s)
and have directly and indirectly promoted the infringement and
Case 1:14-cv-00147-LY Document 1 Filed 02/18/14 Page 5 of 8
refused to exercise their ability to stop the infringement made possible by their distribution


That is: BWP seems to be claiming that in addition to hyperlinking "Ain t It Cool, Inc. and Mr. Harry Jay Know" is providing tools to encourage 3rd party visitors to copy images.  Note that Google does not provide these sorts of tools and if you read Perfect 10 this fact would matter.   I'll quote enough to drill down and you can see what things don't cause contributory infringement (under Perfect 10) and what might.


The issue of contributory infringement is discussed ad naseum in the section "Secondary Liability for Copyright Infringement" of Perfect 10.  Lets look at some of what the 9th wrote:

Quote
[17] We now turn to the district court’s ruling that Google
is unlikely to be secondarily liable for its in-line linking to
infringing full-size images under the doctrines of contributory
and vicarious infringement.10 The district court ruled that Perfect
10 did not have a likelihood of proving success on the
merits of either its contributory infringement or vicarious
infringement claims with respect to the full-size images. See
Perfect 10, 416 F. Supp. 2d at 856, 858. In reviewing the district
court’s conclusions, we are guided by the Supreme
Court’s recent interpretation of secondary liability, namely:
  • ne infringes contributorily by intentionally inducing or

encouraging direct infringement, and infringes vicariously by
profiting from direct infringement while declining to exercise
a right to stop or limit it.” Grokster, 545 U.S. at 930 (internal
citations omitted).
That is: the contributory infringement could arise from hyperlinking if the fact of these hyperlinks induced someone other than Google using Google search to find the image and download the image and store it on their computer.   

Continuuing.
Quote
Direct Infringement by Third Parties. As a threshold matter, before we examine Perfect 10’s claims that Google is secondarily liable, Perfect 10 must establish that there has been direct infringement by third parties. See Napster, 239 F.3d at 1013 n.2 (“Secondary liability for copyright infringement
does not exist in the absence of direct infringement by a third party.”

Note however, for Google to be guilty of this sort of 2ndary infringement, one would have to show that someone visited google, and owing to that visit, that third  party copied the image in a way that constituted a copyright violation-- and that in some way this was caused by Google.   

Perfect 10 alleged that happened. The courts observes.

Quote
Perfect 10 alleges that third parties directly infringed its images in three ways.

So... we now look at the 3 ways: Two of these will mostly go away. But one will remain-- and it matters in this BWP case.

Quote
First, Perfect 10 claims that third-party
websites directly infringed its copyright by reproducing, displaying,
and distributing unauthorized copies of Perfect 10’s
images. Google does not dispute this claim on appeal.

First, Perfect 10 claims that third-party
websites directly infringed its copyright by reproducing, displaying,
and distributing unauthorized copies of Perfect 10’s
images. Google does not dispute this claim on appeal.
Spoiler: This is the one that does not go away.

Quote

[18] Second, Perfect 10 claims that individual users of
Google’s search engine directly infringed Perfect 10’s copyrights
by storing full-size infringing images on their computers.
We agree with the district court’s conclusion that Perfect
10 failed to provide sufficient evidence to support this claim.
See Perfect 10, 416 F. Supp. 2d at 852. There is no evidence
in the record directly establishing that users of Google’s
search engine have stored infringing images on their computers,
and the district court did not err in declining to infer the
existence of such evidence.

This one goes away for lack of evidence-- not because it can never happen.

Quote
[19] Finally, Perfect 10 contends that users who link to
infringing websites automatically make “cache” copies of
full-size images and thereby directly infringe Perfect 10’s
reproduction right. The district court rejected this argument,
holding that any such reproduction was likely a “fair use.” Id.
at 852 n.17. The district court reasoned that “[l]ocal caching
by the browsers of individual users is noncommercial, transformative,
and no more than necessary to achieve the objectives
of decreasing network latency and minimizing
unnecessary bandwidth usage (essential to the nternet). It
has a minimal impact on the potential market for the original
work . . . .” Id. We agree; even assuming such automatic
copying could constitute direct infringement, it is a fair use in
this context.
The copying function performed automatically
by a user’s computer to assist in accessing the Internet is a
transformative use. Moreover, as noted by the district court
a cache copies no more than is necessary to assist the user in
Internet use. It is designed to enhance an individual’s computer
use, not to supersede the copyright holders’ exploitation
of their works. Such automatic background copying has no
more than a minimal effect on Perfect 10’s rights, but a considerable
public benefit. Because the four fair use factors
weigh in favor of concluding that cache copying constitutes
a fair use, Google has established a likelihood of success on
this issue. Accordingly, Perfect 10 has not carried its burden
of showing that users’ cache copies of Perfect 10’s full-size
images constitute direct infringement.
Therefore, we must assess Perfect 10’s arguments that
Google is secondarily liable in light of the direct infringement
that is undisputed by the parties: third-party websites’ reproducing,
displaying, and distributing unauthorized copies of
Perfect 10’s images on the Internet. Id. at 852.
Note the third way "goes away". It is not copyright infringement under Perfect 10. 

So: Perfect 10's claims of copying in three ways has been whittled down to 1 way (which will be addressed).  But this is where someone has to be careful. Google is free and clear on way 2 not because it's "impossible" but because there is no evidence any 3rd party downloaded the image and stored it on their computer in a way that infringes, and the judges were not going to 'infer' that anyone did store it in that way.  Possibly, if Perfect 10 had found people who'd downloaded and stored and brought them to court, Google would have been guilty of "contributory infringement". The things is: Perfect 10 has to show evidence of this. (And in that case, they have to get evidence those people infringed-- which might be even more difficulty.)

So, now we move onto the claim that Google's hotlinking induced infringement because people who ran websites found images on google search copied them and displayed those on their web sites.  Google doesn't dispute people do this.

On to more quoting
Quote
In order for Perfect 10 to show it will likely succeed in its
contributory liability claim against Google, it must establish
that Google’s activities meet the definition of contributory liability
recently enunciated in Grokster. Within the general rule
that “
  • ne infringes contributorily by intentionally inducing

or encouraging direct infringement,” Grokster, 545 U.S. at
930, the Court has defined two categories of contributory liability:
“Liability under our jurisprudence may be predicated
on actively encouraging (or inducing) infringement through
specific acts (as the Court’s opinion develops) or on distributing
a product distributees use to infringe copyrights, if the
product is not capable of ‘substantial’ or ‘commercially significant’
noninfringing uses.” Id. at 942 (Ginsburg, J., concurring)
(quoting Sony, 464 U.S. at 442); see also id. at 936-37.

So there are two categories of contributing infringement. The court has to see if Google is guilty of either one. The look at the 2nd category first:

Quote
Looking at the second category of liability identified by the
Supreme Court (distributing products), Google relies on Sony,
464 U.S. at 442, to argue that it cannot be held liable for con-tributory infringement because liability does not arise from the mere sale of a product (even with knowledge that consumers
would use the product to infringe) if the product is capable
of substantial non-infringing use.
Google argues that its
search engine service is such a product. Assuming the principle
enunciated in Sony is applicable to the operation of
Google’s search engine, then Google cannot be held liable for
contributory infringement solely because the design of its
search engine facilitates such infringement. Grokster, 545
U.S. at 931-32 (discussing Sony, 464 U.S. 417). Nor can
Google be held liable solely because it did not develop technology
that would enable its search engine to automatically
avoid infringing images. See id. at 939 n.12. However, Perfect
10 has not based its claim of infringement on the design of
Google’s search engine and the Sony rule does not immunize
Google from other sources of contributory liability. See id. at
933-34.

So here: Google argues that Perfect 10 can't get the on category 2 because it's search engine has legitimate uses other than permitting people to infringe copyright.  (This is true. It's search engine's primary use is search.)  But the court notes that we need to move on to the question of category 1.

Quote
[20] We must next consider whether Google could be held
liable under the first category of contributory liability identified
by the Supreme Court, that is, the liability that may be
imposed for intentionally encouraging infringement through
specific acts.
11 Grokster tells us that contribution to infringement
must be intentional for liability to arise. Grokster, 545
U.S. at 930. However, Grokster also directs us to analyze contributory
liability in light of “rules of fault-based liability
derived from the common law,” id. at 934-35, and common
law principles establish that intent may be imputed. “Tort law
ordinarily imputes to an actor the intention to cause the natural
and probable consequences of his conduct.” DeVoto v.
Pac. Fid. Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir. 1980);RESTATEMENT (SECOND) OF TORTS § 8A cmt. b (1965) (“If the
actor knows that the consequences are certain, or substantially
certain, to result from his act, and still goes ahead, he is
treated by the law as if he had in fact desired to produce the
result.”). When the Supreme Court imported patent law’s
“staple article of commerce doctrine” into the copyright context,
it also adopted these principles of imputed intent.
Grokster, 545 U.S. at 932 (“The [staple article of commerce]
doctrine was devised to identify instances in which it may be
presumed from distribution of an article in commerce that the
distributor intended the article to be used to infringe another’s
patent, and so may justly be held liable for that infringement.”).
Therefore, under Grokster, an actor may be contributorily
liable for intentionally encouraging direct infringement
if the actor knowingly takes steps that are substantially certain
to result in such direct infringement.

What this is saying is if Google did something specific to encourage people who used its web site to download, Google could be pretty sure that people would violate copyright as a result of their showing the images, then they might be liable .  (For example, suppose the Google web site read "Please download this material and store it on your computer!!" or "Free Porn Images!" then that might be something specific google could do that would result in a ruling of indirect infringement.)

Now, I'll skip a bunch of examples the court discusses (Napster etc.)  Getting back to what Google did.
Quote
Here, the district court held that even assuming Google had
actual knowledge of infringing material available on its system,
Google did not materially contribute to infringing conduct
because it did not undertake any substantial promotional
or advertising efforts to encourage visits to infringing websites,
nor provide a significant revenue stream to the infringing
websites. Perfect 10, 416 F. Supp. 2d at 854-56.
This
analysis is erroneous
. There is no dispute that Google substantially
assists websites to distribute their infringing copies to a ...

Note: the "This analysis is erroneous" looks bad for google so far....
Quote
worldwide market and assists a worldwide audience of users
to access infringing materials. We cannot discount the effect
of such a service on copyright owners, even though Google’s
assistance is available to all websites, not just infringing ones.
Applying our test, Google could be held contributorily liable
if it had knowledge that infringing Perfect 10 images were
available using its search engine, could take simple measures
to prevent further damage to Perfect 10’s copyrighted works,
and failed to take such steps.

So: Google could be held liable for visitors finding Perfect 10 images through the hyperlinks and downloading the hyperlinked images if
1) Google knew visitors did this (which I suspect google strongly suspects  they do.)
2)  It was in Googles power to prevent these visitors from making copies and
3) Google did not take these steps.


2&3 become important questions: Are there easy ways for Google to prevent anyone from copying images and if yes, did Google undertake these steps? What's the circuit court say about this:

Quote
[23] The district court did not resolve the factual disputes
over the adequacy of Perfect 10’s notices to Google and
Google’s responses to these notices. Moreover, there are factual
disputes over whether there are reasonable and feasible
means for Google to refrain from providing access to infringing
images. Therefore, we must remand this claim to the district
court
for further consideration whether Perfect 10 would
likely succeed in establishing that Google was contributorily
liable for in-line linking to full-size infringing images under
the test enunciated today.13

What they circuit court says is: We don't know anything about the facts related to 1-3 above.  It's not our place to decide that directly-- that would be decided by the district court first. They didn't even look at it. So, we are sending this back to the district court, where Perfect 10 and Amazon can bring forward evidence about whether "Google knew this was happening, whether they could have stopped it, and whether they didn't try". 

Anyway, this continues on. If you read, there are ways in which hyperlinking could lead to 'contributory infringement', but Perfect 10 would have to show evidence that these things actually happened.

But basically, if you read this, hyperlinking might lead to contributory infringement but BWP would have to bring evidence about what 3rd parties (i.e. people who are not Google) did copy, and show that this behavior was induced or encouraged by Google or failing that, Google has to have the power to stop it and fail to do so. And merely hyperlinking does not induce it-- Google has to do something more. This is a tough climb for them.

And: Getting back to BWP, we should note they not only complain of hyperlinking but also that

Quote
For example, Defendant(s) have caused enabled, facilitated and materially
contributed to the infringement complained of herein by, providing the tools and instruction for
infringement via their Website(s) and have directly and indirectly promoted the infringement
and
Case 1:14-cv-00147-LY Document 1 Filed 02/18/14 Page 5 of 8
refused to exercise their ability to stop the infringement made possible by their distribution

This is way, way, way more than the ordinary  hyperlinker does. Most people hyperlinking merely create an inline link to show the image. They don't do anything like write "Go copy this image" or so on.  If they did do that, them maybe they would be guilty of 'contributory infringement'.  In this case, BWP is going to have to bring evidence showing that the defendant did do something to induce visitors to copy. maybe they did, maybe they didn't. We'll see.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 20, 2014, 10:27:36 AM
lucia, thank you for taking the time to write such an in-depth response.  I always appreciate your insight. 

I also took note of the portion that said:

"For example, Defendant(s) have caused enabled, facilitated and materially
contributed to the infringement complained of herein by, providing the tools and instruction for
infringement via their Website(s) and have directly and indirectly promoted the infringement and
Case 1:14-cv-00147-LY Document 1 Filed 02/18/14 Page 5 of 8
refused to exercise their ability to stop the infringement made possible by their distribution"

I am curious to know how they define "providing tools and instruction for infringement via their website."  I can't help but wonder if BWP sees hotlinking itself as the tool for infringement.

Your analysis encourages me that I may be getting better at reading these documents.  You confirmed much of what I was thinking.

It looks like Ain't It Cool actually has refused to remove the images, which is pretty foolish of them. 

This document is also available and shows the evidence - http://ia700607.us.archive.org/0/items/gov.uscourts.txwd.675638/gov.uscourts.txwd.675638.1.4.pdf

The two items cited link to http://www.aintitcool.com/node/61430 and http://www.aintitcool.com/node/61281

The items are definitely stored on a sub-domain of Ain't It Cool. 

Perhaps the social sharing tools above and below the content of each post are what BWP considers to be the tools and instruction for encouraging infringement.  Do you know anything about tools like that?  Have they ever been found to be a means that facilitates infringement?  I think the final discussion points you made about the Perfect 10 case probably apply here.  However, since those points were never ruled upon in the Perfect 10 suit, I guess BWP would have to do some hard work of their own.

The other main thing that caught my attention in the Ain't It Cool document is this:

"20.
Additionally, on information and belief, De
fendant(s), with “red flag” knowledge
of the infringements, failed to promptly remove same. (
See 17 U.S.C. §5
12(c)(1)(A)(i))."

As I noted above, the images and pages are still available.  It seems like Ain't It Cool knows and refuses to remove the imagery.  Obviously these guys aren't a model case because it looks like they have done, and continue to do, some things wrong.
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on February 20, 2014, 03:09:31 PM
Quote
I am curious to know how they define "providing tools and instruction for infringement via their website."  I can't help but wonder if BWP sees hotlinking itself as the tool for infringement.

I'm curious too!

Quote
It looks like Ain't It Cool actually has refused to remove the images, which is pretty foolish of them.

Yes. Although if it's not infringement and their business model relies on displaying these, they may need to push back.   But anyway: This ain't hotlinking.  aintitcool.com IS hosting the image

http://media.aintitcool.com/media/uploads/2013/champ5.jpeg

Quote
Do you know anything about tools like that?  Have they ever been found to be a means that facilitates infringement?

No I don't know what tool a site that hotlinked an image might provide a user to "facilitate" that third parties infringement.  Encouraging language might do it. But... a tool that facilitates? I can't think of one off hand.

Quote
I guess BWP would have to do some hard work of their own.

Yes. But they would always need to do the work to present relevant facts.   
In the end, this is a simple not-hotlinking case. Likely BWP put the "if" language in there merely to preserve that in case some image or another was hotlinked. Or maybe there is a mix of hot-linked and not-hotlinked images. 

Obviously these guys aren't a model case because it looks like they have done, and continue to do, some things wrong.

Yes. They look like a business whose business model is to host images, and who does not take down when the receive complaints.  The images are not parodies. The images aren't transformed. They are just copied. Their only valid defense looks like claiming the image is not copyrighted.   
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on February 20, 2014, 07:40:04 PM
Oh-- I think I mistateda  above. The other defense could be no proper DMCA takedown was sent.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on February 20, 2014, 07:48:11 PM
Here's another interesting one I was just reading:

http://www.courthousenews.com/2014/02/20/Celebrity%20Photos.pdf

Even though a default judgement was awarded against Blue Wolf Media, the court did not support damages greater than $750 per image.  That is hardly getting away with anything, but it is also much less than the $9,600 BWP was asking for the one image.
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on February 20, 2014, 10:00:11 PM
Lucia, your insights are as always very informative and appreciated.  Thanks for posting!
Title: Re: Received a Complaint from BWP Media USA
Post by: stinger on February 21, 2014, 05:50:32 PM
Lucia, what Greg said.  I am beginning to believe you were a lawyer in a previous life.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on April 09, 2014, 10:19:58 AM
Here is a little update on my own situation.  I also have some new information from others.

It has now been several months since I mailed my letter to Sanders.  I have not heard anything by mail, email, or phone.  Even though I check here to keep up with others' cases every day, I've nearly forgotten my own.  I'm hoping it stays this way.  At some point I plant to make a version of the letter I sent available for others since it seems to have helped my situation.

I've been in touch with another letter recipient who somehow missed all attempts Sanders made to serve her.  She received a default judgement which she is now appealing.  Sanders attempted to push the new hearing date out into the future.  She opted to keep the original time.  It seems, as others have speculated, that a large part of their strategy is to make you sweat it out as long as possible.  Sanders probably thinks people will settle if they can make them worry long enough.  I don't spend enough time in the legal world to know if this is common practice, but it seems to me that they know they have a weak case.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on April 09, 2014, 12:45:33 PM
how can there be a default judgement is she was never served? doesn't make sense, she must have been properly served at some point in time.
Title: Re: Received a Complaint from BWP Media USA
Post by: DavidVGoliath on April 09, 2014, 01:33:50 PM
Robert,

Depending on the jurisdiction, service can be achieved and deemed valid by simple, unregistered mail (that's the short version); I'm in no way cognizant of how this would play out in all states, but a quick search shows the following as just one example

http://en.wikipedia.org/wiki/Service_of_process_in_Virginia#Effecting_service

EDIT: should have linked to this too

http://en.wikipedia.org/wiki/Service_of_process#Service_by_mail
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on April 09, 2014, 01:57:09 PM
I don't know every little detail.  I do know this is in Ohio though.  She said the papers were dropped off at her house and were very informal in appearance - no envelope, no staple, etc. 

Perhaps the person who attempted to serve her saw her through a window and decided it was safe to just leave the papers.  I read somewhere that you don't have to accept the papers to be officially served.  The source where I read that suggested that a person could technically identify you in the street, drop the papers at your feet, and run and you would officially be considered "served".

I read somewhere else that if all reasonable attempts fail, there is some type of notice you can put in a local newspaper that also counts even if you never read that paper.  I don't know how true any of this information is.

how can there be a default judgement is she was never served? doesn't make sense, she must have been properly served at some point in time.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on April 09, 2014, 01:59:20 PM
I should also clarify.  I believe she was served but she was never aware that she had been served because nobody had made any type of contact with her.

how can there be a default judgement is she was never served? doesn't make sense, she must have been properly served at some point in time.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on April 09, 2014, 02:05:41 PM
Here is another interesting quote I found back in January or so:

"BWP filed suit against our site. Haven't been served officially yet but never heard anything from them and then boom a lawsuit is filed. Not very happy about this but apparently these trolls are everywhere now."

I tried to get more information but never received a response. 

Either these people are omitting information about their cases or BWP/Sanders is taking shortcuts somewhere.  Any insight on this aspect of the situation would be appreciated.
Title: Re: Received a Complaint from BWP Media USA
Post by: DavidVGoliath on April 09, 2014, 04:36:19 PM
http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

Looks like the plaintiff could avail themselves of several options here that, if the defendant did not respond to, would lead to a default judgement.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on April 21, 2014, 10:47:29 AM
One of my contacts settled with Sanders/BWP for somewhere near $4,000 about a week ago.  She said she had accumulated about $12,000 in lawyers feeds in addition to that.  As I'm sure everybody knows, these guys count on the increasing lawyer fees to push you closer and closer to settlement. 
Title: Re: Received a Complaint from BWP Media USA
Post by: spicer on April 21, 2014, 09:46:03 PM
What!? $16K into this? Ouchie. I haven't heard from them in 4-5 months. I don't plan on sending a damn dime, even if I do.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on April 21, 2014, 10:01:24 PM
Same here, spicer.  It's getting close to somewhere around 4 or 5 months for me too I think.  I couldn't believe those numbers when she told me.  That is an expensive mistake.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on May 02, 2014, 01:54:57 AM
I was doing my daily search for BWP Media/Sanders Law PLLC today when I stumbled across the following:

http://www.mizozo.org/2014/04/these-dmca-takedown-requests-are.html
http://www.mizozo.org/

It looks like Sanders is changing up their process a little bit.  They are now spamming contact forms found on websites and attempting to direct them to a link to pay online: https://payonline.sanderslawpllc.com/

I read about this type of scheme being used against IP addresses found in a torrent download swarm.  This is an interesting twist.

I especially enjoy the part where they are attempting to use the SSL that belongs to payonline.bakersanders.com and it causes my browser to generate an untrusted connection message because of the domain mismatch.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on May 02, 2014, 11:33:20 AM
the problem with Mizzo is they are actually hosting most of the images.. for example this page:

http://www.mizozo.com/entertainment/02/2014/20/the-incredibly-sexy-heidi-klum-stuns-in-sports-illustrated-swimsuit-50th-aniversary-issue.html is using an image from Sports Illustrated even including their watermark.. the image is not linked to as can be seen by the path:

http://www.mizozo.com/images/item_images/77000/76914_gallery.jpg

my guess it won't be long, before many other trolls start piling on. The site states that all content is uploaded by users, in which case they would be covered by dmca providing they have a registered agent..which i'm not so sure of.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on May 02, 2014, 12:31:13 PM
I didn't mean to speak to the innocence/guilt of Mizozo.  It was the new online component that interested me most.  Since they provided the details, I may or may not have logged in using a proxy to check out what is inside  ;)
Title: Re: Received a Complaint from BWP Media USA
Post by: DavidVGoliath on May 02, 2014, 01:17:12 PM
the problem with Mizzo is they are actually hosting most of the images.. for example this page:

http://www.mizozo.com/entertainment/02/2014/20/the-incredibly-sexy-heidi-klum-stuns-in-sports-illustrated-swimsuit-50th-aniversary-issue.html is using an image from Sports Illustrated even including their watermark.. the image is not linked to as can be seen by the path:

http://www.mizozo.com/images/item_images/77000/76914_gallery.jpg

my guess it won't be long, before many other trolls start piling on. The site states that all content is uploaded by users, in which case they would be covered by dmca providing they have a registered agent..which i'm not so sure of.

Mizozo's problems seem to have started here (or thereabouts)

http://www.mizozo.org/2012/02/mizozo-received-and-responded-to-its.html

The problem they have is that they didn't meet the requirements of DMCA safe harbor protections until after the date they received the letter.

http://www.copyright.gov/onlinesp/agents/m/mizozo_llc.pdf

... so there's the possibility that they *could* be sued for any unlicensed images posted to mizozo.com prior to May 17 of 2012
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on May 02, 2014, 02:09:14 PM
The other major difference with Mizozo is that they received their letter for multiple infringements.  There are at least 10 instances, if not more.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on May 03, 2014, 09:04:14 AM
the problem with Mizzo is they are actually hosting most of the images.. for example this page:

http://www.mizozo.com/entertainment/02/2014/20/the-incredibly-sexy-heidi-klum-stuns-in-sports-illustrated-swimsuit-50th-aniversary-issue.html is using an image from Sports Illustrated even including their watermark.. the image is not linked to as can be seen by the path:

http://www.mizozo.com/images/item_images/77000/76914_gallery.jpg

my guess it won't be long, before many other trolls start piling on. The site states that all content is uploaded by users, in which case they would be covered by dmca providing they have a registered agent..which i'm not so sure of.

The problem they have is that they didn't meet the requirements of DMCA safe harbor protections until after the date they received the letter.

http://www.copyright.gov/onlinesp/agents/m/mizozo_llc.pdf

... so there's the possibility that they *could* be sued for any unlicensed images posted to mizozo.com prior to May 17 of 2012

I agree 100%, I didn't look into the agent issue, but quickly read the so called "terms" which made me giggle...lots of "we don't care" in there..

I'd be willing to bet there are also trademark issues there.. one would think that "sports illustrated" may not be to happy with their logo appearing along with the images..but then again it is a "reporting" site, so maybe fair use comes into play. Either way it's important that folks that want to do this kind of site, do their homework first to avoid any of these possible issues. But most just have that "it's on the internet..free for all attitude"

I had someone approach me last week that wants to build a site to sell "knock off" watches, handbags and the like..they said these things are all over ebay, why can't you do it for me..
Title: Re: Received a Complaint from BWP Media USA
Post by: DavidVGoliath on May 03, 2014, 12:16:04 PM
I'd be willing to bet there are also trademark issues there.. one would think that "sports illustrated" may not be to happy with their logo appearing along with the images..but then again it is a "reporting" site, so maybe fair use comes into play. Either way it's important that folks that want to do this kind of site, do their homework first to avoid any of these possible issues. But most just have that "it's on the internet..free for all attitude"

Trademark would only come in to play if mizozo.com's postings were crafted in such a manner to imply either a connection to or endorsement by Sports Illustrated, being that a claim has to show Dilution by Blurring, Dilution by Tarnishment or both.

And yeah, I run into a lot of "it's online, so it's free" in people's arguments, as well as all sorts of people who seem to think the DMCA exempts them from wrongdoing, even when they've not got a designated agent and/or are outwith the US.

I had someone approach me last week that wants to build a site to sell "knock off" watches, handbags and the like..they said these things are all over ebay, why can't you do it for me..

There's a simple reply to that: just tell them that there are two reasons you don't want to - 18 USC §2319 and 15 USC §1125  ;)
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on May 05, 2014, 08:42:03 AM
I had someone approach me last week that wants to build a site to sell "knock off" watches, handbags and the like..they said these things are all over ebay, why can't you do it for me..

There's a simple reply to that: just tell them that there are two reasons you don't want to - 18 USC §2319 and 15 USC §1125  ;)
With respect to trademark, some 'knockoffs'  in the sense of "sort of imitations" are ok-- provided the don't confuse the consumer or clearly trample on the mark. This happens in women's fashion all the time. On may, for example, create a bridal gown that looks awfully similar to the one worn by that Princess Kate woman during her wedding-- and could do so even if the designer of that dress 'trademarked' her brand.  What you couldn't do is use the 'trademark' to advertise that thing.

But generally, if it looks like it tramples trademark to Robert, I'd say it probably does. 

On the "it's on Ebay" issue: If that customer thinks  stuff similar to what he markets is listed on ebay and thinks that's ok,  he should set up an ebay store.  The fact is: ebay monitors for trademark infringements too. So he'll quickly discover that he'd need to tread carefully at ebay too. Ebay has all sorts of info on this issue:

http://pages.ebay.com/help/tp/vero-rights-owner.html
http://www.ebay.com/gds/Trademark-Infringement-My-Experience-with-it-/10000000002844578/g.html
http://www.ebay.com/gds/Selling-Trademark-Infringement-BE-AWARE-OF-THE-RULES-/10000000010376203/g.html

And so on. 

Do somethings slip through on ebay? Sure. Might some people have figured out how to slide by for a while? Likely. But
* ebay's rules don't permit trademark violation.
* ebay's will ban your account if they discover you are a repeat offender.
* the trademark owner will try to track you down and sue you if you infringe and they can find you. (Ebay will cooperate.)

I wouldn't be at all surprised if the guy who contacted Robert didn't already know that listing on Ebay was going to be difficult.  That might be his motive for trying to set up an local web page.
Title: Re: Received a Complaint from BWP Media USA
Post by: Oscar Michelen on May 06, 2014, 09:24:35 PM
Sorry to chime in late on this thread but we have been litigating against BWP Media in a few cases including one just filed in New Jersey Federal Court. You can follow it on Pacer the case is called  BWP Media v HipHopStan.com LLC. I can't discuss the details but I will keep you updated as much as I can. Like most of these litigants BWP is usually interested in a quick settlement but I am right now looking to see the proof of their claim or whether they are like Righthaven and just have the right to sue.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on May 23, 2014, 02:46:32 PM
BWP recently won $18,000 in a default judgement against Uropa Media.  This includes attorneys' fees of $6,732.50 and costs of $400, for a total of $25,132.50.

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2013cv07871/419633/21

The thing that stands out to me in this document is:

"Finally, BWP requests costs in the amount of $475, representing a $400 filing fee and $75 for the cost of service of process. (Proposed Findings at 3, ¶ 14). However, no documentation has been provided in support of these expenses. Where counsel
fail to proffer documentation, a court may either reduce the amount claimed or decline to award costs altogether. See Zimmerman v. Portfolio Recovery Associates, No. 09 Civ. 4602, 2013 WL 6508813, at *13 (S.D.N.Y. Dec. 12, 2013). I will take
judicial notice of the filing fee, but the Proof of Service form was left blank where it calls for the process server’s fee (Docket
no. 3 at 1, 2), and no other evidence has been proffered. The award of costs should therefore be limited to $400."

One common thread I'm starting to notice in BWP lawsuits is that people don't seem to be aware they have been served until it is too late.  Is it possible they are skipping a vital step and getting away with it?
Title: Re: Received a Complaint from BWP Media USA
Post by: mr walton on June 24, 2014, 08:25:59 PM
I was doing my daily search for BWP Media/Sanders Law PLLC today when I stumbled across the following:

http://www.mizozo.org/2014/04/these-dmca-takedown-requests-are.html
http://www.mizozo.org/

It looks like Sanders is changing up their process a little bit.  They are now spamming contact forms found on websites and attempting to direct them to a link to pay online: https://payonline.sanderslawpllc.com/

I read about this type of scheme being used against IP addresses found in a torrent download swarm.  This is an interesting twist.

I especially enjoy the part where they are attempting to use the SSL that belongs to payonline.bakersanders.com and it causes my browser to generate an untrusted connection message because of the domain mismatch.

I run a fairly popular forum and I received one of these (worded exactly like the one to mizozo, but with different numbers) and I went to the link.  Before you can see what the infringement might be they are requiring you to check a box for their terms of service which basically relinquishes all your rights.  I didn't proceed, so I don't even know what image is supposed to be infringing.

Here's that screen:
Welcome
Terms & Conditions

Please read the user agreement carefully before proceeding. This website displays infringement information and handles payments only for settlement of Sanders Law client’s copyright claims. If you have questions regarding the claim against you, please call the Sanders Law at (855) 456-2240. Customer Service Representatives are available Monday through Friday from 9:00am to 5:00pm EST.

You understand and agree that the use of this web site to handle a copyright infringement claim does not alter or extend any statutory deadlines. Thus, your failure to make any payment on time or other failure to meet any deadline will not be excused, even if caused by the error or any malfunction relating to this web site, and the commencement of legal action as a result of such failure to pay on time or meet another deadline will apply.

In consideration of your use of this web site, you agree to provide true, accurate, and current information. If you provide any information that is untrue, inaccurate, or not current, or if Sanders Law has reasonable grounds to suspect that such information is untrue, inaccurate, or not current, Sanders Law has the right to terminate your use of any services on this web site.

You understand and agree that Sanders Law reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, any services provided on this web site and any conditions of use with or without notice.

You understand and agree that Sanders Law may, under certain circumstances and without prior notice, immediately terminate your access to this web site. Cause for immediate termination will include, but not be limited to, (a) breaches or violations of this User Agreement or other incorporated agreements or guidelines, (b) discontinuance of services or content modifications to this web site, (c) technical problems or errors, and (d) extended periods of inactivity.

Sanders Law makes no guarantees, promises, or warranties regarding the accuracy of information and data provided by any section in this web site. You agree and understand that the information and data on this web site are being provided "as-is" without warranty of any kind and that the information and data may be subject to errors and omissions. To the extent permitted by law, Sanders Law disclaims all warranties, including, without limitation, any implied warranties of merchantability, accuracy and fitness for a particular purpose, and non-infringement. The user acknowledges and agrees that neither Sanders Law nor any related entity or body nor any attorney, member or affiliate of Sanders Law, nor any vendor or service relating in any way to our online efforts is or will be liable in any way whatsoever for the accuracy or validity of the information provided. There is no guarantee that this on-line payment application will show all of your infringements. Use of this service to submit payment constitutes acknowledgment that Sanders Law and the processor of electronic payments assume no responsibility for data entered by service users. I hereby understand that payment is an admission of liability and I may not be afforded an opportunity to a legal proceeding.

In no event will Sanders Law or body or any vendor or service provider associated with any of our online efforts be liable for damages of any nature based on any theory of liability, including but not limited to contract, negligence or other torts (including intentional torts), including but not limited to damages for loss of property, loss of profits, lost, compromised or impaired claims, lost savings, lost fees, or any other damages whatsoever, arising out of or relating in any way to the use of this web site. Accordingly, you acknowledge and understand that you use this web site at your own risk and that your agreement to this provision is a material inducement to Sanders Law’s decision to make this web site available for your use.

Sanders Law is committed to protecting your privacy. Security measures for this site have been taken to protect against loss, misuse or alteration of the information you provide; and industry standard encryption methods are used to assure security. Nevertheless, it is crucial that, as a user, you protect against unauthorized access to your password and to your computer and that you always sign off when finished using a shared computer. Further, you should be aware that no system is impenetrable. Thus, it is your responsibility to diligently monitor your credit card statements, bank statements and similar personal information so as to discover and address as quickly as possible any misuse of your personal information."

By providing Sanders Law with the names and account information of those persons or entities to whom you wish to direct payment, you authorize Sanders Law to follow the payment instructions that it receives from you through the software program. When the Service receives a payment instruction, you authorize the Service to charge your transaction account on the selected Scheduled Payment Date and remit funds to the designated payee on your behalf. While it is anticipated that most transactions will be processed and completed on the same day, it is understood that due to circumstances beyond the control of Sanders Law, particularly concerning delays in handling and posting payments by slow responding companies or financial institutions, some transactions may take a day or even a few days longer to post to your account. Sanders Law will use its best efforts to make all your payments properly. However, Sanders Law shall incur no liability if it is unable to complete any payments initiated by you.

In case of errors and questions, you should telephone us at (855) 456-2240 or write us at:
Sanders Law, PLLC
100 Garden City Plaza
Suite 500
Garden City, New York 11530
Accept
Title: Re: Received a Complaint from BWP Media USA
Post by: Oscar Michelen on July 27, 2014, 04:27:39 PM
That is ridiculous They cannot go into court with a straight face and tell a judge they would not let you know what the infringing image was without you giving up some rights. 
Title: Re: Received a Complaint from BWP Media USA
Post by: solomonthewise1 on July 30, 2014, 12:22:24 PM
I have been dealing with Sanders Law PLLC for a few months and my story is similar to those previously posted. They have offered me a 500 dollar settlement which will be taken off of the table today? Any new news in regards to this firm? The person that contacted me from Sanders was a paralegal by the same of Stacy Berkowitz. My dealings with her have been interesting to say the least. Her email signature is inconsistent--- sometimes she will sign the email as "Stacy Berk" or instead of paralegal it will say "team leader". In her initial call to me, she left me a voicemail in which she stated the wrong celebrity in the image I used.

I am strongly debating on whether or not to just settle today. Oscar if you are on the message board today, can you tell me how effective your defense letter program has been, and if that is the best option for someone that wants to avoid settlement and court altogether...
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on July 30, 2014, 02:52:58 PM
Can you tell us some more details about your case?  What are the circumstances surrounding the image and the site it appeared on?  What have you told them?  What methods of communication have you used?  What have they told you?
Title: Re: Received a Complaint from BWP Media USA
Post by: solomonthewise1 on July 30, 2014, 04:47:39 PM
I posted the image in question on my blog (www.thebuzzzstop.com) in October of last year and was contacted by Stacy Berkowitz of Sanders Law PLLC in June of this year via phone. They had originally tried to mail me a letter from the law firm in May, but they had the wrong address so I never received it. They managed to come across my phone number and left me a voicemail saying that I infringed on a photo of Miley Cyrus (even though the photo was Julianne Hough).

My blog receives very little traffic, not even enough to receive google's minimum adword payout; I haven't received a penny off of google for ad placement and the blog is more of an outlet than a money making venture. So receiving this type of threat was dumfounding, especially since I pulled the image from creative commons.

The letter they sent me shows that they applied for the copyright in January of this year, two and a half months after I posted the image. It was a 5 page document that discussed my unauthorized usage of the photo and had a picture of the photo I used.

I have been in contact with Stacy via phone and email. She gave me a deadline to respond by a certain date to which I complied, and now, she is requesting that I pay 500 dollars today. The day is slowly ticking away, I guess I have until midnight ET even though that was not stated. They want me to submit my payment online using one of their paysites to settle the matter. They gave me my own little personal code to login and everything.

Any advice today would be great. The responses from lawyers have been mixed. Ive been told by some to take this matter seriously, and ive been told by others that Sanders Law is dealing with so many of these cases that their is a chance that my case gets dropped. From the forums that Ive checked out it looks like many unfortunate people like myself are dealing with these trolls but there is little feedback from those who have settled or had their cases dismissed. Whether or not I hear back from someone today with some advice that will save me 500 dollars, I'll be sure to post how this all shakes out.

Also-- they gave me the "application number" they used to apply for the copyright and wanted me to use that to look up the infringement. I had to dig to find the actual registration number. In the public catalog, however, it does state that BWP is the claimant and it was transferred by written agreement.
Title: Re: Received a Complaint from BWP Media USA
Post by: solomonthewise1 on July 30, 2014, 07:02:40 PM
I just settled with these guys for 500 dollars. I just feels like I was taken. I was allowed to pay the money via pay pal and received a receipt of payment that included a "Rights Managed License Agreement". I'd be happy to attach it, so that others can see what happens after settling with Sanders, but I do not see an attachment link here. 

Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on July 30, 2014, 09:51:16 PM
I'm sorry to hear that you feel you were taken.  I sent them a forceful reply in response to the scammy looking letter I received.  I advised them not to continue contact with me unless they were willing to provide certain pieces of evidence.  I have not heard from them since.

I have advised many others to do the same.  However, if paying $500 gives you better peace of mind than waiting for the 3 year statute of limitations to pass, then that is well worth the price.

I would love to take a look at what the settlement looks like.  However, make sure you don't violate any terms of non-disclosure in sharing the information.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on August 01, 2014, 05:49:39 PM
Feel free to email me document to share with other ELI members, you can email it to adminATcopyright-trolls.com

(change the AT to @
Title: Re: Received a Complaint from BWP Media USA
Post by: ZippySLC on August 15, 2014, 08:39:01 PM
I hope it's alright if I jump in this thread with my Sanders Law story. If not I can certainly start a new thread.

I just came home tonight and found a regular mailed quasi-DMCA takedown notice from Sanders waiting for me. I run a discussion forum about a specific geographical area. I don't run ads, I don't make any money from it. It's been a labor of love.

In August 2013 one of my users linked to an article from a local newspaper about a forest fire that happened in 1962. They also posted a picture of the front page of the newspaper from 1962. Sanders is claiming that that image is infringement. I don't know if my user scanned his own copy of the front page in, or if that front page image was in the article that he linked to (which has since disappeared.)

I have not filed for the Safe Harbor protection with the Copyright Office. I wish I had known about it before this happened.

I'm not sure what I should do here. I see other people have been sued by Sanders and have lost. I also don't have a ton of money to throw at this. I've reached out and found a local attorney who will do a consult for $400. If there's something I should try before I go down that route I'd greatly appreciate it.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on August 16, 2014, 03:21:46 PM
it would most likely fall under "fair use" if the article in question was being discussed, and if the image was linked there is simply no case, as linking is not "copying"...400.00 for a consult is a rip-off, find a different attorney, one that's honest!
Title: Re: Received a Complaint from BWP Media USA
Post by: ZippySLC on August 16, 2014, 03:46:37 PM
Unfortunately the user did not just hot link it, they attached the image file to their post. (So the file physically resided on my web server.)

Glad to hear $400 for a consult was ridiculous. That's what I was thinking but I have very little experience dealing with attorneys.
Title: Re: Received a Complaint from BWP Media USA
Post by: Jerry Witt (mcfilms) on August 16, 2014, 10:32:05 PM
They will probably bug you about this, but this is about as clear a case of Fair use as I have ever heard.

Out of curiosity, WHO are they claiming to represent? Is it the newspaper? Is it the person that wrote the original newspaper article? Is it the photographer of a picture along side the article/ OR is it the picture OF the newspaper article? (Probably not that last one.)

This is just silly. And you can tell them I said so.
Title: Re: Received a Complaint from BWP Media USA
Post by: ZippySLC on August 17, 2014, 10:02:05 AM
They are claiming to represent the publishing company that owns this newspaper (as well as others in the region.)

So there's two things I can think that they're claiming copyright of:
a) The original layout of the front page of the newspaper from that day.
b) The image that someone took (a scan I suppose?) of that newspaper page.

From what I can piece together, last year was the 50th anniversary of a big fire. A user on my site quoted an excerpt from a newspaper article (from the same paper) talking about the anniversary, linked to their site, and also grabbed that image which got republished in the anniversary article. Interestingly enough the anniversary article that my user linked to does not seem to be available anymore.

I totally agree that this is pretty clear-cut fair use. I'm just worried about the expense of having to prove that in court. On the other hand if it got to that I'd definitely be looking to recoup my attorney fees.


Title: Re: Received a Complaint from BWP Media USA
Post by: stinger on August 17, 2014, 01:39:39 PM
Odds are that if they have an attorney who understands fair use, it will never make it into a court room.  Some attorneys like to threaten court in anticipation of a settlement they do not deserve.  It becomes a business decision.  I hope you don't encourage their attorneys to continue this practice by paying them off.  But if you do, I will understand the peace of mind that buys you.
Title: Re: Received a Complaint from BWP Media USA
Post by: ZippySLC on August 17, 2014, 03:05:51 PM
Paying them off is really the last thing on my mind right now.
Title: Re: Received a Complaint from BWP Media USA
Post by: Jerry Witt (mcfilms) on August 17, 2014, 04:19:33 PM
Paying them off is really the last thing on my mind right now.

As well it should be. I sincerely doubt this would ever go to court. And although there is the old adage about someone who represents themselves in court has a fool for a client, I believe there is enough information on this site to successfully defend against a nutty claim like this.

Be sure to do a little research on the Righthaven madness. Their quest to sue bloggers failed for many, many reasons. But note this:

"Indeed, Righthaven seemed to have been caught off guard when judges wouldn’t fault bloggers for reposting photographs or quoting articles. In one of the most famous Righthaven cases, a federal judge found that Vietnam veteran Wayne Hoehn, who had posted all 19 paragraphs of a Las Vegas Review-Journal editorial, was within his fair use right to do so."  (from http://www.abajournal.com/magazine/article/the_righthaven_experiment_a_journalist_wonders_if_a_copyright_troll_was_rig/)
Title: Re: Received a Complaint from BWP Media USA
Post by: ZippySLC on August 18, 2014, 02:00:17 AM
The more I read and think about this the more that I am convinced that if this went to trial that the judge would laugh it out of the courthouse. I'm less worried about this now, and after seeing how many people are getting these letters and being frightened into settling, more eager to fight this if need be.

Interestingly enough, I wonder if they have to furnish proof that they're able to sue for the alleged copyright holder. I mean, what's to stop someone from claiming that they have permission to sue over an image when in fact they do not? Maybe Craig Sanders also has a bridge he'd like to sell me?

I don't tolerate bullies very well.
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on August 20, 2014, 11:19:35 PM
In my experience, a very strongly worded reply turned them away.  I based my reply on what others here have used against Getty and other trolls.  The request for additional proof, as well as a show of self-defense, seems to effectively turn them away most of the time.
Title: Re: Received a Complaint from BWP Media USA
Post by: Matthew Chan on August 21, 2014, 06:02:12 AM
I just did a ELI Support Call for a person and did some research on BWP Media.  IN 2014 alone (as of late August 2014), there are nearly 50 lawsuits filed by BWP Media. By and large, most of the lawsuits are directed towards larger media websites and organizations. However, BWP still bears watching for smaller parties.

In dockets.justia.com, you can find the actual lawsuits being filed. If someone is ambitious enough, these cases can then be cross-referenced with PACER to see the individual outcomes. I did not take the time to see if Sanders Law actually filed the lawsuits themselves or if they are "paper tigers" like "Timmy Mack" of (infamous McCormack Law fame).

The person I consulted with was largely engaging in a hobby website from his home. I believe he is of low risk right now as there is little money to be had if BWP Media decided to sue. AS with all the people I consult with (but don't provide legal advice), people have a direct line to me for any sudden status changes. I can then send them in the right direction if the matter escalates.

On the case I consulted on, Sanders has the paralegal, Stacy Berkowitz, sending out these notification emails. Interestingly, I saw no specific dollar amounts being requested.
Title: Re: Received a Complaint from BWP Media USA
Post by: andru on September 02, 2014, 10:08:52 PM
In my experience, a very strongly worded reply turned them away.  I based my reply on what others here have used against Getty and other trolls.  The request for additional proof, as well as a show of self-defense, seems to effectively turn them away most of the time.

Read through the entire thread - was curious though, what was the gist of the reply? I'd like to replicate it was I received something from Sanders in snail mail today, representing FameFlynet for a user posting a couple of images on my Web site (uploaded to the server.) I would like to respond in a similar fashion, strongly worded, etc!
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on September 03, 2014, 10:57:56 AM
I don't mind sharing the contents of my letter. I sort of have a process for my own sanity though. Since my SOL isn't up yet and I haven't outed myself personally, I don't want to cause any extra trouble for myself if Sanders happens to follow what I do here. I like to learn a little about the situation before sharing the text. Feel free to email or PM me for further discussion.
Title: Re: Received a Complaint from BWP Media USA
Post by: Jerry Witt (mcfilms) on September 04, 2014, 11:32:57 AM
Very wise JLorimer.
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on September 05, 2014, 12:21:00 AM
ditto

Very wise JLorimer.
Title: Re: Received a Complaint from BWP Media USA
Post by: rockview on January 20, 2015, 09:43:11 PM
I know this thread hasn't been updated in a while, but I thought I would post here before starting my own and having some sort of meltdown on you guys.

I recently received a letter from this firm and their client, BWP. I removed the image and made the decision to take down my site as well. It was a site that I no longer used, but I kept it up. I'm not sure if this was the right thing to do, but I felt there was no need in keeping an inactive site.

After consulting with a lawyer, he basically laughed at this situation. He said it sounds like a scam to him and advised me to ignore it. I'm still paranoid that something will come of it though. My site was just a hobby and I wasn't making an actual profit from it. He think I should wait to see what happens, if anything. How likely is it that I will be contacted again by these people? It doesn't seem like they would send one letter and drop it. If they do reach out again, I will have my lawyer follow-up.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on January 21, 2015, 10:52:16 AM
There is plenty of info in the forums regarding how you should move forward, it is solely your decision, get educated first, and go from there. You'll have 3 yrs to deal with this, and it's hard to say what they might or might not do.
Title: Re: Received a Complaint from BWP Media USA
Post by: rockview on January 22, 2015, 07:03:30 AM
There is plenty of info in the forums regarding how you should move forward, it is solely your decision, get educated first, and go from there. You'll have 3 yrs to deal with this, and it's hard to say what they might or might not do.

I've definitely been reading as much as possible on the experiences others have had.

I'm also curious because these people do not have my home address. How could they ever serve me with papers? In order to do so, someone would have to come into contact with you. According to my lawyer, when you're being served, those papers have to physically touch you, whether they are handed to you or thrown at you.

Since I don't use the site anymore, I was thinking of just getting rid of the domain, as it's due for renewal in a few months. Would it be wise to do this?
Title: Re: Received a Complaint from BWP Media USA
Post by: stinger on January 22, 2015, 10:28:04 AM
Getting rid of the domain does not magically absolve you of guilt.

The best way to deal with your paranoia is, as Robert suggests, to get educated so that you know what might happen. Few people get sued over one image, but there are cases where this can happen.  Learn all you can so you can plot the best strategy to deal with this, for yourself.
Title: Re: Received a Complaint from BWP Media USA
Post by: rockview on January 22, 2015, 11:16:51 AM
Getting rid of the domain does not magically absolve you of guilt.

The best way to deal with your paranoia is, as Robert suggests, to get educated so that you know what might happen. Few people get sued over one image, but there are cases where this can happen.  Learn all you can so you can plot the best strategy to deal with this, for yourself.

I wasn't trying to say that it did. But now that I've closed the site, there is no reason to keep the domain. I just wasn't sure if that looked worse on my part.
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on January 22, 2015, 10:17:57 PM
It does not make you look worse.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on January 23, 2015, 10:46:31 AM
being "unservable" is always a good thing IMHO
Title: Re: Received a Complaint from BWP Media USA
Post by: rockview on January 24, 2015, 03:42:26 PM
being "unservable" is always a good thing IMHO

That's what I'm hoping! Ha! I mean, they are sending these letters standard mail. It's not like they are sending them certified. They have no idea whether or not I have received it. So, how could they ever actually serve me and take me to court? I guess there's still a way, but I don't see how. As I was told by an attorney, I could be dead for all they know.
Title: Re: Received a Complaint from BWP Media USA
Post by: rockview on January 24, 2015, 10:54:15 PM
What is everyone basing their three year statute of limitations on? The date the photo was posted, the date they discovered the photo, or the date of the letter?
Title: Re: Received a Complaint from BWP Media USA
Post by: Greg Troy (KeepFighting) on January 24, 2015, 11:05:03 PM
Safest bet is to base it on the date of the letter, that is a known date and will be after any others that may be out there.  Once you hit 3 years from that date you should be in the clear.
Title: Re: Received a Complaint from BWP Media USA
Post by: Robert Krausankas (BuddhaPi) on January 25, 2015, 08:20:16 AM
if they wanted to serve you, they would simply knock on your door..BWP just lost a case, seems they could not follow simple rules of procedure, the court dismissed the case..

http://copyright-trolls.com/site/copyright-troll-craig-b-sanders-of-sanders-law-p-l-l-c-overruns-court-system/

and court documents are here: http://www.scribd.com/doc/253553479/RKCC-Defeats-BWP-Media-Claim
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on January 28, 2015, 08:52:59 AM
Robert, thanks for the link to that case. I hadn't seen that yet. After reading through it, I'm more convinced than ever that they only take screenshots and have no real proof. I couldn't believe that they refused to provide their evidence and then tried to show up at trial with different evidence. I'm glad I chose to wait it out.
Title: Re: Received a Complaint from BWP Media USA
Post by: lucia on January 28, 2015, 09:24:52 AM
I love the comments in the ruling at scribbed
Quote
The “webpage captures” are minuscule, no more than one-sixteenth of an inch wide and some four-and-a-half inches tall, and do not reveal any discernible images within. (See id .) Indeed, it is not possible to confirm plaintiff’s assertion that the exhibit represents a website

The whole thing is pretty funny though.
Title: Re: Received a Complaint from BWP Media USA
Post by: Sandra Rose on March 12, 2015, 11:29:11 PM
I also saw Sandra Rose's impending lawsuit has made a bit of a splash in the new year.  Anybody have any helpful new info?

Thanks for asking. :)

BWP Media took too long to serve me after filing this case in Dec. 2013. So, after the deadline to serve me had already passed, the lawyer asked the court for an extension to serve me in August 2013. Unbelievably, the judge approved the extension. All this time I had no idea I was even being sued. BWP's attorney, Sanders Law, hired a local process server who didn't even attempt to find me even though he had my home address. He went straight to the secretary of state and served the desk clerk. Apparently, if you own a LLC in Georgia, it is legal to serve the secretary of state instead of serving me at my residence or place of business. Of course, the secretary of state didn't notify me that they received a summons for my company. So a year later, in January 2015, the judge ruled a default judgment against me for $57,000 and some change. I found out about the judgment from a California lawyer. The court didn't bother to mail me the judgment even though my address is listed on the secretary of state's website. Now my lawyer is listed on my LLC as my registered agent to received service of summons. My lawyer is preparing to file a motion to vacate on the grounds that I was not properly served and the deadline to serve me had already passed.

By the way, thank you to Matthew and Oscar Michelen for their EXCELLENT advice!
Title: Re: Received a Complaint from BWP Media USA
Post by: stinger on March 13, 2015, 09:09:34 AM
GA again?

What kinda law they practice down there?
Title: Re: Received a Complaint from BWP Media USA
Post by: JLorimer on March 16, 2015, 01:18:32 PM
I also saw Sandra Rose's impending lawsuit has made a bit of a splash in the new year.  Anybody have any helpful new info?

Thanks for asking. :)

BWP Media took too long to serve me after filing this case in Dec. 2013. So, after the deadline to serve me had already passed, the lawyer asked the court for an extension to serve me in August 2013. Unbelievably, the judge approved the extension. All this time I had no idea I was even being sued. BWP's attorney, Sanders Law, hired a local process server who didn't even attempt to find me even though he had my home address. He went straight to the secretary of state and served the desk clerk. Apparently, if you own a LLC in Georgia, it is legal to serve the secretary of state instead of serving me at my residence or place of business. Of course, the secretary of state didn't notify me that they received a summons for my company. So a year later, in January 2015, the judge ruled a default judgment against me for $57,000 and some change. I found out about the judgment from a California lawyer. The court didn't bother to mail me the judgment even though my address is listed on the secretary of state's website. Now my lawyer is listed on my LLC as my registered agent to received service of summons. My lawyer is preparing to file a motion to vacate on the grounds that I was not properly served and the deadline to serve me had already passed.

By the way, thank you to Matthew and Oscar Michelen for their EXCELLENT advice!

I'm happy to see that you found your way here, Sandra. I had attempted to contact you through your site about your case about a year ago I think. Thanks for providing some new details about your case.
Title: Re: Received a Complaint from BWP Media USA
Post by: Sandra Rose on March 19, 2015, 02:32:24 PM
No problem, J. I also have information about another case that was filed against a publisher who is a friend of mine. The copyright case was filed by BWP Media in December 2014. The judge dismissed the case earlier this month for failure to serve notice of summons within the 120 days deadline. Below is the court's ruling on that case.

Quote
ORDER DISMISSING ACTION WITHOUT PREJUDICE for failure to serve defendant within 120 days by Judge Andre Birotte Jr. The Court finds no reason to exercise its discretion to grant Plaintiff a further discretionary extension that Plaintiff has not even requested. It is Plaintiff's duty to prosecute its case, not the Court's role to maintain the action in the hopes that Plaintiff may someday take interest in it. Plaintiff having failed to (1) serve Defendant within the mandatory 120-day period for service of process; (2) show any good cause for its failure to do so, or; (3) even request an additional discretionary extension without a showing of good cause, the Court DISMISSES the action WITHOUT PREJUDICE. Fed. R. Civ. Proc. 4(m). IT IS SO ORDERED. (Made JS-6. Case Terminated.)

This is what should have happened in my case after BWP/Sanders Law failed to serve me notice in 8 months. Apparently BWP Media files so many lawsuits that they can't keep track of who was served.
Title: Re: Received a Complaint from BWP Media USA
Post by: Matthew Chan on March 19, 2015, 10:14:55 PM
Sandra Rose would never say anything publicly but I do want to give public recognition to her for being a quiet, generous financial supporter of ELI behind the scenes.

Specifically, her timely contribution will pay a few quarterly Pacer.gov bills I get over the course of a year. I often go into Pacer.gov to look up and research relevant federal lawsuits to report here or to people who enroll in ELI Support Calls.  Sometimes those Pacer.gov bills add up in a hurry when I am in serious research mode.

The good news is that Sandra Rose is doing more than her share to support ELI by covering my Pacer.gov bills.

Thank you, Sandra Rose for the generous ELI Contribution.  And thank you for participating on and following the ELI Forums. It is greatly appreciated. I felt the need to give something back to you and so you will have me peeking in on your case and situation from time to time.
Title: Re: Received a Complaint from BWP Media USA
Post by: Sandra Rose on March 26, 2015, 05:43:32 PM
Thank you Matthew for everything you do to keep the blog community safe from predators like copyright trolls. :D
Title: Re: Received a Complaint from BWP Media USA
Post by: rockview on May 12, 2015, 10:11:17 PM
Has anything exciting been going on in the world of Sanders and BWP? I've been away from the forums and checking out what I've missed over the last few months. I've received a letter and email from Sanders. Nothing more.

Debating what my next step should be. I contacted Oscar's office months ago and never received a response, unfortunately. After calling them, I was told someone would be in touch, but when I never heard anything, I decided to let it go. The attorney I was working for told me to ignore it.
Title: Re: Received a Complaint from BWP Media USA
Post by: Sandra Rose on May 13, 2015, 10:04:49 PM
Debating what my next step should be. I contacted Oscar's office months ago and never received a response, unfortunately. After calling them, I was told someone would be in touch, but when I never heard anything, I decided to let it go. The attorney I was working for told me to ignore it.

Oscar is very busy with cases, but keep trying to reach him. He will eventually get back to you. :)