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Author Topic: Received a Complaint from BWP Media USA  (Read 40204 times)

JLorimer

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Received a Complaint from BWP Media USA
« 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?

Greg Troy (KeepFighting)

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Re: Received a Complaint from BWP Media USA
« Reply #1 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.
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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JLorimer

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Re: Received a Complaint from BWP Media USA
« Reply #2 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. 

JLorimer

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Re: Received a Complaint from BWP Media USA
« Reply #3 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?

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Re: Received a Complaint from BWP Media USA
« Reply #4 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.
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

JLorimer

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Re: Received a Complaint from BWP Media USA
« Reply #5 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.

Greg Troy (KeepFighting)

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Re: Received a Complaint from BWP Media USA
« Reply #6 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.

Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

JLorimer

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Re: Received a Complaint from BWP Media USA
« Reply #7 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.

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Re: Received a Complaint from BWP Media USA
« Reply #8 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.
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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Re: Received a Complaint from BWP Media USA
« Reply #9 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. )




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Re: Received a Complaint from BWP Media USA
« Reply #10 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?

lucia

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Re: Received a Complaint from BWP Media USA
« Reply #11 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.

JLorimer

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Re: Received a Complaint from BWP Media USA
« Reply #12 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.

lucia

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Re: Received a Complaint from BWP Media USA
« Reply #13 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.


Quote
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.)

Quote
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.  )

JLorimer

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Re: Received a Complaint from BWP Media USA
« Reply #14 on: November 26, 2013, 11:50:12 AM »
Quote
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. 

Quote
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.

Quote
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.

 

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