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

[Moe Hacken]

Getty and all of the copyright trolls are most easily defeated by never buying stock photography. This entails hiring a photographer on a "work-for-hire" arrangement so that one keeps all copyrights, or taking the images oneself.

This is not always practical or possible, so the question is where to purchase an image without exposing oneself to trolls. From what they state themselves, Getty and iStockphoto are not the best places. I've used Fotolia, but who's to say someone won't show up to dispute the copyright of an image I license from Fotolia and troll me for it anyway? I don't care if it's Fotolia's fault, I don't want to have to worry about having to defend myself in court from any clown who writes me a letter saying Fotolia screwed up and I owe them $5000.

Getting back to PicScout, the only actions they could engage in that would be illegal would be getting around passwords or other type of security measures. That is, for now. It doesn't have to stay that way.

PicScout is engaged in empowering abuse of process, no matter how much lipstick they put on that pig by claiming they're helping defend intellectual property. There's even books about monetizing photography by hiring PicScout to find people to troll for any kind of infringement! This is why these trolling companies are popping up everywhere like online pharmacies selling Viagra.

The FTC approach may be the best approach. There has to be fairness. Current law is weighted way too far in the direction of giving the copyright owner relief. So far, in fact, that it has become a legal loophole for abuse.

Of course it would be difficult to go after PicScout, especially because Getty can and will defend their favorite gill netting tool. It would take the same kind of guts and due diligence it took a small group of people to drag Getty and their trolls into court in Israel. Difficult, yes, impossible, no.

[SoylentGreen]

Yes, I'd like to see it.
It would probably come through some sort of class-action.

S.G.

[Greg Troy (KeepFighting)]

I too would love to see it happen.

[Moe Hacken]

That makes 3 of us. Gotta start somewhere!

Here's an example of a book that encourages using PicScout to earn money from your photographs:

http://tinyurl.com/7opz3f2

After you read this advice which totally plugs PicScout as a monetizing tool for failed photographers and stock photo companies, please check out the table of contents.

Suggestion number 2 out of 99: "Sell Royalty-Free Photography"

Suggestion number 14 out of 99: "Turn Your Photographs Into Wallpaper"

Suggestion number 34 out of 99: "Make Image Thieves Pay You with PicScout"

I wonder how many people out there are doing this in the same order. Of course, I agree that "image thieves" should pay. The huge disagreement I have with PicScout is when they call anything they find "image thievery" as if innocent infringements didn't exist, and then use the abusive extortion letter for money instead of the civilized cease and desist letter to protect a copyright.

There is some interesting legislation being proposed for a category of works named "orphan works". Orphan works are works for which the owner is very difficult or impossible to find. The idea is that some great works are locked up in a vault and not being shared because people don't want to expose themselves to being sued if the copyright owner suddenly turns up and makes a claim. The legislation is intended to free up stuff like archival film, paintings, photographs, books and other types of work that can be copyrighted.

When I was reading the proposed legislation, it seemed to me that it would provide some balance in cases such as the HAN/VKT baitpaper images we've discussed at length. The images are being offered for free on thousands of websites, so even an honest and diligent search for a copyright owner would be incredibly difficult. VKT's bulk registrations with the Copyright Office are little or no help. A person caught using one of his images could argue that they did a reasonably diligent search for an owner and found nothing except for a mountain of evidence suggesting that the image was in the public domain. VKT would be entitled to the following:

...we recommended a framework whereby a legitimate orphan works owner who resurfaces may bring an action for “reasonable compensation” against a qualifying user. A user does not qualify for the benefits of orphan works legislation unless he first conducts a good faith, reasonably diligent (but unsuccessful) search for the copyright owner. As defined in our Report, reasonable compensation should be the amount “a reasonable willing buyer and reasonable willing seller in the positions of the owner and user would have agreed to at the time the use commenced.”2 Such a recovery is fair because it approximates the true market value of the work. It allows a copyright owner to present evidence related to the market value of his work and, at the same time, allows the copyright user to more precisely gauge his exposure to liability. Statutory damages would not apply to use of an orphan work. (The Office agrees with copyright owners who have since suggested that an award of attorney's fees might make sense in certain instances where an orphan work user acts in bad faith.)

Source: http://www.copyright.gov/docs/regstat031308.html

This is an example of how legislators are actually trying to address some of the issues that are currently making a mess out of copyright law in the digital age, where reproduction and publishing are nearly instantaneous and there is a huge demand for content. Copyright owners must be protected, but not at the expense of fairness or worse yet, people's civil rights.

The way the trolls are handling copyright protection with innocent infringements is tantamount to treating dandruff by decapitation.

For profit, may I add.

[SoylentGreen]

Interesting post and links!  Thanks for that.

In regard to the topic of "orphan works", the following statement should cause everyone concern:
"The Office agrees with copyright owners who have since suggested that an award of attorney's fees might make sense in certain instances where an orphan work user acts in bad faith."
This would enable copyright holders (whether real or fake) to come out of the woodwork and hold the prospect of an expensive legal battle over the head of a "user".
This is how copyright extortionists have been stealing money from people all along.  Paying the extortionists a ransom is a bit cheaper than fighting it out in court.
I guess that they'd use probably use the term "thief" instead of "user", though.  Additionally, I can't wait to hear how every alleged infringer has acted in "bad faith", without proof of such.

It's these small details that really keep the laws from progressing into a form that discourages baiting, greed and threats.

S.G.

[Moe Hacken]

That's a good point, S.G. However, I think they can ask for attorney's fees as it stands now. If that's the case, the only improvement is that they only have the right to ask for those "in certain instances where an orphan works user acts in bad faith."

The "bad faith" question is a good one to raise. My take on it is that it would include (but not be limited to) actions such as ignoring a cease and desist order, falsely claim to own the copyright, or attempting to fight off the copyright owner with a frivolous lawsuit.

I'd like to clarify that this is not the current law. It's at the proposal stage and members of the US Congress as well as the US Copyright Office are still working on refining this. They have involved several key technology players such as Google and even PicScout in the conversation.

PicScout has a curious position on this proposed legislation — they seem to like it. This may be because it could create a market for present or future product of theirs. Some hardline pro-copyright-owner groups don't like it because they feel it may water down protection for the copyright owner, and they have been flaming PicScout for their position. For instance:

http://freeonline-business.blogspot.com/2012/05/picscout-delusions-of-grandeur.html

http://freeonline-business.blogspot.com/2012/05/picscout-rights-wrongs-and-facts.html

Politics make strange bedfellows, as they say.

[SoylentGreen]

That's a good point, S.G. However, I think they can ask for attorney's fees as it stands now. If that's the case, the only improvement is that they only have the right to ask for those "in certain instances where an orphan works user acts in bad faith."

The "orphaned works" thing is a proposed legislation.
That is, it doesn't exist as yet, and nobody can ask for anything under its guise.
So, I guess that it's plain old trolling for now.

S.G.

[Moe Hacken]

Absolutely, S.G. Nothing has changed yet and they've been talking about these changes since 2006 at the least. They're having a good conversation, but one could also say they're suffering from "analysis paralysis".

Let's hope they come up with something good. In the meantime, everybody watch out for the loophole-enabled trolls.

[Jerry Witt (mcfilms)]

Just tagging this as #gettyflubs

Almost forgot that Lucia came to ELI thanks to Getty not even checking to see if an image is hotlinked.

[SoylentGreen]

Anyone else find it VERY interesting that Getty Images no longer provides the URL where they claim to have discovered alleged infringements?

I think that they're trying to fool the inexperienced into paying for infringements that they didn't commit.
It's pretty easy even for a novice to notice that an URL doesn't match their site, or that the URL is related to an ad-server.
In the absence of the URL, some people may be more likely to pay up when they're innocent.

Pretty sleazy if you ask me.

S.G.

[Greg Troy (KeepFighting)]

I do find that interesting but would not put it past them. My opinion of them was lowered so much when they tried to collect on that public domain image of Henry David Thoreau that was taken in the 1800s. Of course they quickly back down once the person brought it to their attention that they knew some copyright law and that this was public domain but I wonder how many of these they send out that people actually pay for.

Anyone else find it VERY interesting that Getty Images no longer provides the URL where they claim to have discovered alleged infringements?

I think that they're trying to fool the inexperienced into paying for infringements that they didn't commit.
It's pretty easy even for a novice to notice that an URL doesn't match their site, or that the URL is related to an ad-server.
In the absence of the URL, some people may be more likely to pay up when they're innocent.

Pretty sleazy if you ask me.

S.G.