Recieved a demand letter today.. What do you think of my response?

[anakin]

Well lucky me I got a letter from Getty demanding about 1k for 1 image.
As far as I can tell i'm innocent since it appears to be from data pulled from another affiliate network, either amazon or another one.
I responded the below BEFORE I found this forum.. so curious what you guys think of what I said and what they might respond.
It's good to know this community is here and some of the options going forward to fight this.

My letter:
I received a letter from your company claiming unauthorized use of an
image (Case xxxxxx).
Assuming the image was in fact viewed on my site, since you did not
provide a url - the only place that image could have appeared is inside an
iframe of a product page pulled from amazon.com (via an amazon affiliate
proxy feed).
Therefor the image was not hosted by my site in any way and you have no
legal claim against our company.

Unless you provide other evidence to the contrary I consider this matter
closed.

[lucia]

anakin--
That is an excellent response. However, they will write back and dispute.  Likely their theory is that you aren't really confident that your are correct about the law-- but you are correct.

I know because they did with me.  At that point, you will want to cite "Amazon v. Perfect 10" while simultaneously requesting they send you information like the actual url etc.

Matt has a copy of the 2nd letter I sent.    In a similar case, Getty sent me 3 letters in about 3 months. Then they stopped. I've got 2 1/2 years on the statute of limitations-- but I suspect I'll get no more letters.

[Mulligan]

I've got 2 1/2 years on the statute of limitations-- but I suspect I'll get no more letters.

You're tempting fate with that statement, Lucia!

[anakin]

Hi Everyone, Thanks for your input .

Hmm... I think I would need a little bit more information involving your case, but from the looks of it your good to go.

Well in my case I have certain pages on my site that are loading my header & footer from my server, but the content of the pages between the header and footer are loading direct from an affiliate such as amazon and others.
Getty didn't actually provide a url, and the "evidence" they provided of the photo in question did not show my header or footer. All it showed was was what appeared to be product affiliate content not loading from my server.

At that point, you will want to cite "Amazon v. Perfect 10" while simultaneously requesting they send you information like the actual url etc.
Matt has a copy of the 2nd letter I sent.   

Thanks for the citing tips Lucia. I haven't been able to find the letters yet but I will totally check yours out as soon as I do . Is the general consensus that I should keep responding to them every time they write? Or should I only keep my one response for my records and ignore them unless they provide more concrete evidence?

don't expect Getty to roll over on this matter, just as a matter of repercussion see if the image in question is licensed and move form there.

Yeah I have gotten the idea that they will bark up any tree they can find no matter how frivolous. I've seriously considered for a second sending them an invoice for administrative time spent looking into this frivolous claim, and then sending them to collections should they not pay, but so far i've managed to keep myself from going overboard on this .

[stinger]

I am not sure what they will do - but if I had to bet, I would suggest that they will keep pestering you, because to them - it's only about the money.

Either way, let us know what they do.  If they pursue you, keep this dialog open and you will get lots of advice on things to consider, before deciding what your strategy will be.

Keep up the good fight!

[lucia]

Is the general consensus that I should keep responding to them every time they write? Or should I only keep my one response for my records and ignore them unless they provide more concrete evidence?

I wrote 3 times-- all by email. If they had kept sending, I might have stopped.  The third letter was fun.

For your convenience, this is the 2nd email which I sent after they emailed me a response to my first letter. You might want to proof read better than I did... but it's the email:

Mr Sam Brown,

Thank you for your cordial respond to my Nov. 29 email discussing your GettyImages demand letter dated Nov. 24, 2011, which discussed a case your company has assigned a case number 1144-28, and involves an image GettyImages describes as "Catalog Image No eb2511-001". You are correct that I mistook the text of UK law for a portion of US law and so that portion of my response has no relevance.

However, it is still the case that there has been no infringement with regard to the image in question.   I will begin by focusing on this point which I made and which is based on the 9th circuit court of appeal rulings in Perfect 10 v. Amazon :

With regard to the image discussed in your letter, there has been no infringement of US copyright  law on my part.

I believe the substance of what I communicated regarding the meaning of the ruling in Perfect 10 v. Amazon which is, in essence this:   When a site like Google hosts html that instructs a users browser to point to (i.e. "display")  an  image hosted by a third party, the first party (e.g.,  Google) does not violate either the copyright owners right to copy or their right to display as those terms are defined under US copyright law.   Like Google's actions with regard to full size images in Perfect 10 v. Google and Perfect 10 v. Amazon, my web page included html that instructed a browser to point to an image at a third party site.  Under US copyright law, this action does not violate the display right of the copyright holder and it does not violate their right to copy.

I note you provided your opinion about whether DMCA offers protection to my blog.  I believe introducing this issue is irrelevant to the matter at hand. However, because you brought this up, I believe I need to respond.

First: I have not investigated whether DMCA protects my hobby blog and so do not know whether your interpretation of DMCA and my blog is correct.  I reserve the right to make this determination at such time as it appears to be relevant to any discussion regarding  Getty Images "Catalog Image No eb2511-001".

Second: I have read over both the 2006 Ruling regarding  PERFECT 10, Plaintiff, v. GOOGLE, INC., et al., Defendants from   "United States District Court, C.D. California"  and that regarding Perfect 10, Inc. v. Amazon.com, Inc., et al. 487 F.3d 701, No. 06-55405 (9th Cir., May 16, 2007).   I note that DMCA is mentioned and discussed by the District court in footnote 10 of the District Court ruling where they say,

"Google also contends that it qualifies for protection under each of the four DMCA safe harbors, 17 U.S.C. § 512(a)-(d). In light of the ensuing analysis concluding that Google is neither vicariously nor contributorily liable, it is unnecessary for the Court to deal with the DMCA issues."

The plain meaning of the text indicates that any protection that might have been afforded Google by the existence of  DMCA was irrelevant the courts ruling because Google had not violated any of the copyright holders rights under copyright.  I  have not copied or displayed "Catalog Image No eb2511-001" as those terms are defined by US copyright law  So, whether Google, Amazon or I are or are not protected by DMAC in the event that we might inadvertently violate someone's copyright would seem irrelevant.  I'm puzzled that you brought your opinion about the applicability of DMAC up.

I would now like to point out that in my first letter I also brought up the issue of fair use.  In the event that GettyImages might believe contrary to court rulings that including html instructions to an image at a third party site constituted  infringing use under US copyright law, my particular use would in any case fall under fair use for reasons I mentioned in my first email to you. You have not address this point. 
 
Because you have so far stated you do not consider the matter closed,  I believe must request information from GettyImages.  While continuing to maintain that I have neither copied nor displayed "Catalog Image No eb2511-001" as those words are defined by US copyright law, I request the following information regarding GettyImages "Catalog Image No eb2511-001" required to ascertain whether GettyImages has standing to pursue any claim or negotiate any settlement and to assess whether the suggested amount of the settlement would be reasonable.

My specific requests are below:

1) Please provide me with proof that the GettyImages "Catalog Image No eb2511-001"  has been registered at the US copyright office or copyright office in any country either individually or as part of a collection,  including any collection name, registration numbers, dates of registrations,  renewals of registrations, names of copyright holders and any and all records indicating the copyright ownership may have transferred to any new owner and on which dates copyright ownership transfer may have occurred.  Your Nov. 4th letter indicates that the photographer was "Mother-Daughter Press".  I believe such items should be easily accessible in files GettyImages maintains for the image in question; your obtaining and providing these should be little more than a clerical matter.

2) Please provide me documentation that Getty Images now holds and has held the exclusive license this image spanning whatever time period you believe is relevant to your allegation of a copyright violation related to the image discussed in your first letter to me. I believe such items should be easily accessible in files GettyImages maintains for the image in question; your obtaining and providing these should be little more than a clerical matter.


3) Please explain your basis for requesting $875 for whatever use you infraction you allege with regard to this image.

I believe there is reason to doubt Getty images holds an exclusive right to license images, and also suspect the settlement demand is excessive in light of a number of factors including, but not limited to the following:

a) A digital copy of what appears to be the image in question is available free of charge by visiting ("Mother-Daughter Press & Gay Bumgarner Images" ( i. e. http://www.gaybumgarner.com/)   , searching for "cardinals", clicking the image itself and then clicking "download" . The Mother-Daughter Press & Gay Bumgarner Images"  website appears to be owned and operated by the party listed as  "photographer" of your "Catalog Image No eb2511-001"  and the  57.5 kb available for free is larger than the 14kb copy hosted at the third party site I linked.  Absolutely no usages restrictions are indicated when that digital image is downloaded. (See attachment 1 below.)

b) A digital copy of what appears to be the image in question can be downloaded for free accessing it through  photoshelter.com's user interface.  Photoshelter.com lists the image as "PhotoShelter ID: I0000NJj3T3XcwKU"  (See http://www.photoshelter.com/lbx/lbx-img-show?L_ID=L0000f7CHJUlwcGk&_bqG=0&_bqH=eJxLjMot9wh1D0izLI3wzQgNdPKrKgxPNM02S_G0MrIyMrWy8on3dLH1MQCCNHNnD6_QnPJk92w1H8_4YP.gEFsg7Rzi6esKE4h38QyydQx2BvF9PN09Qpz8I7AaUFCQbmtkCgC88CZL&LI_ID=LI000.2F242ES7zc )

c) Much lower costs licenses permitting web display of larger higher versions of this image are available through photoshelter.com (see attachments  2  below.)

I believe that since GettyImages has already presented me with a demand letter for $875, providing records and an explanation of  the basis for demanding $875 along with records documenting who owns the copyright and your companies exclusive right to license the image should amount to little more than a clerical matter.

I close by noting that it remains my position that there has been no violation of the copyright holders rights to copy or display this image in the matter you described in your Nov. 24, 2011 letter.

Sincerely,
Lucia Liljegren

After sending that, I recieved another letter which I suspect is a sign that their system is programmed to just keep sending out letters over and over unless someone hits a "kill" button in the program.

This was my third letter which I sent to Mr. Brown and the Getty Compliance Team.

To Mr. Brown and the Getty Compliance Team,

Today I received a letter dated Jan 27, 2012 discussing the case you have assigned Getty number Case #:  1144028.  Based on the wording of this letter, it seems to me your compliance team is unaware of on going communications between myself and a Mr. Sam Brown Copyright Compliance Specialist.

As I communicated to Mr. Brown: There has been no violation of copyright on my part.

Before I reiterate the previous discussions, I would like to be sure that those on the Getty side of the conversation have read the previous communications.   I request that personnel in the Getty Compliance Team obtain a copy of my previous correspondence with the Getty Compliance Team and Mr Sam Brown. My first email to your groups was dated November 29, 2011, Sam Brown's response dated December 19, 2011 and my reply to Mr. Brown sent December 20, 2011.

If my reply on December 20, 2011 has gone astray, I will be happy to resend that email both to Mr. Brown and to other members of your License  Compliance Team.   

After member of your team have had the opportunity to read the correspondence and become aware of the facts of the case, I will be happy to continue further discussion. In addition to wishing Getty employees to be aware of the facts of the case before I spend time discussing matters on the phone or email, I remain eager for Getty personnel to provide information I requested of Mr. Brown in my second email. Your firm drawing together the information I requested will greatly reduce the amount of time both your firm and I will need to waste on this matter.


Sincerely,
Lucia Liljegren

Mr. Brown responded very quickly after I sent this.  He wrote this

Lucia,
 

It would appear our recently-received letter was sent in error as your December 20, 2011 e-mail (received) is still under review in our department. I apologize for any confusion our recent mailing may have caused.
Regards,
SAM BROWN
Copyright Compliance Specialist
Getty Images License Compliance
sam.brown@gettyimages.com
www.stockphotorights.com
Copyright 101

I have not heard since.

[Greg Troy (KeepFighting)]

Nicely done lucia.  That was a great letter!

[stinger]

The only thing that could have made those letters better, Lucia would be to decorate them with some of the memes and troll images circulating on this site.  But you probably couldn't have done that back then, because they did not exist.

Way to go Lucia!  You Rock!

[Moe Hacken]

Nice, Lucia! Very specific.

[anakin]

Thanks again everyone.. I will totally keep you guys in the loop as things develop.

Lucia your responses are amazing.. i'm not sure I can write mine as well as yours but it is certainly inspiring .

[Greg Troy (KeepFighting)]

I agree lucia is awesome and we are very lucky to have her here with us.

Thanks again everyone.. I will totally keep you guys in the loop as things develop.

Lucia your responses are amazing.. i'm not sure I can write mine as well as yours but it is certainly inspiring .

[lucia]

I'm happy to accept compliment. But my main purpose in showing that is to show anankin what to expect. What is going to happen is this:

1) S/he writes telling Getty that the image is not hosted her 'not hosted on her server'. The words s/he uses might be 'hotlinked' or 'in an iframe' or something. But the main point is 'not hosted on her server'.  S/he says for that reason, the display is not copying as defined by us copyright law (according the 9th circuit ruling. There is no ruling from other circuit courts or higher.)

2) Getty will write back bringing up some point that is likely irrelevant. In my case, they brought up the notion that I might not be protected under DMCA while google and amazon might have been. This is utterly irrelevant.

3) At that point, it can be worth engaging their point in some details.  But the fact is: according to the perfect 10, hotlinking is not a violation under the US copyright act.  None of the rest of the details in that case matter. 

In anakin's case or that of anyone else, at step 2, Getty might bring up something other than DMCA. But don't let that rattle you.  If you hotlinked whatever they brought up will be irrelevant.

[anakin]

Well I received a response today that Getty has decided to drop the matter, which I didn't expect based on your experiences. (Email posted below).
I was ready for the good fight but honestly i'm also happy to be able to focus back on real business.
Still, i'm keeping this message thread bookmarked should I ever have any photo troll entanglements in the future .
Thanks again everyone!

Thank you for your email. We appreciate the time you have taken to contact us.

After further review of this case we have determined that the image is being used
within an ad by a another party.
 (please see attached screen capture "SC1")

However, based on this use of our image being within a 3rd party ad, we wish to
notify you that you may disregard the settlement presented to your company. No
further action is required on your part. We will redirect our claim as appropriate.

Thank you for your time and attention in this matter.

[anakin]

Also I thought I would add one note on this case:
I had a special script on my site that took my amazon affiliate astore and put it within my site header & footer. About a month ago I noticed extremely high load on the script, meaning it was using a huge percentage of my server load.
At that time I disabled the script.

In retrospect, i'm assuming it was the getty crawler that caused the high load.. and it's a really good thing I disabled the script when I did, since god knows how many getty images are inside the amazon store, and god knows how many silly claims I would have had to defend against had I left it online .
Because I disabled it when I did I only had to deal with this one image.
So if you see high server load and your serving affiliate content, be very wary...

It's interesting though.. Getty caused server load issues, forced me to disable a lawful script to recover my server, sent me a threatening letter & wasted my time on administrative claims.. all while being completely innocent.
If I am a representative of a large "class" of people I think someone could make a class action case since they are certainly damaging people. Yeah I understand they are trying to defend their copyrights, however I would think there would be legal limits to the damage they can do to bystanders in the process.
They can't break into your house in the middle of the night with a swat team, to search your house for images, right?
So why can they do that to my server, my life & my business at any cost?
 

[PuzzleGuy]

Interesting. I also caught Picscout in the act and disconnected them before they could finish. I didn't know about Picscout at the time, but the connection was from Israel and slowed my website to a crawl. I still don't think my case was infringement. I have to wonder if disconnecting their spybot raises a flag that makes it more likely you'll get their letter.