ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: lgattenby on April 26, 2013, 10:32:00 AM
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Hello, like many here I received a settlement demand for $1560 for two images that were on my website from an RSS feed I was getting from Hypebot.
A little background on myself, I am a humble musician who runs a music school and am working hard at my own music career. I understand how it is to have your hard work ripped off. When I received this letter I was horrified. I called getty and explained to them that the infringement was unintentional, but I knew my ignorance was not a defense and was able to negotiate them down to $800. I had till April 30 to pay them or the original amount they required would be 'moved forward'.
Then it hit me, if I paid them for this infringement.. then I open the door to be sued for every image that I had fed to me via RSS. I contacted the CEO of Hypebot and explained the situation to him and he told me that his business model depended on his articles adhering to copyright law (via purchased license and creative commons) and hypebot has never been contacted by gettyimages.
I emailed gettyimages about that and all I got back from them was.. "Thank you for making sure the images have been removed. Payment of the settlement amount is all that is left to close this matter."
Obviously, I need to draft a letter and send it out today. This is what I was thinking of sending them..
Nancy Monson
Copyright Compliance Specialist
Getty Images Headquarters
605 5th Avenue South, Suite 400
Seattle WA 98104 USA
Case #1333597
Nancy,
Again, I appreciate you bringing to my attention the following images/articles on my website.
- http://www.hypebot.com/.a/6a00d83451b36c69e20176178a5810970c-popup (http://leegattenbymusic.com/2012/07/03/artists-and-labels-must-accept-the-new-music-industry/)
- http://www.hypebot.com/.a/6a00d83451b36c69e2017742f8b9cc970d-popup
(http://leegattenbymusic.com/2012/08/31/new-jobs-on-the-hypebot-job-board-2/)
As stated in my previous communication from you, I have removed this RSS feed and deleted all articles from Hypebot.com so they no longer appear on my URL. Being a musician, I fully understand what its like to have your hard work stolen by others. It is my intention to comply with copyright law because it affects me as a musician as it does your photographers.
I have been in contact with Bruce Houghton, president of Skyline Music (which owns Hypebot.com). He states he has never had correspondence with Gettyimages over the images you mentioned. What concerns me is that I may be paying damages in error for proper licenses secured by Hypebot.com to distribute the images in question via RSS through creative license.
I require the following burden for proof from you.
1. Copy of the copyright registration of the image(s) in question.
2. Signed and dated paperwork from the photographer that transfers copyright to Getty Images.
3. Creative image number(s) in the Getty Images library.
4. The date which Getty Images claims the image(s) entered their library.
5. License records, including all fees, of the image(s).
Should this request to fulfill your burden of proof not be completed in whole, I will conclude that your claim is null and void (because Hypebot did indeed have proper licensing), and further more ask you to cease and desist ALL further communication with me.
Kind Regards
Lee Gattenby
Lee Gattenby Music
Thank you all in advance to answering my questions.
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The real issue here is not whether you infringed on Getty's copyright, you clearly did not, but whether you were allowed to use the RSS feed to display on your site, particularly if your site is commercial.
A lot of RSS feeds state in the T&C's that they should not be used to display on another commercial site. You may want to check that.
Either way it's nothing to do with Getty as an RSS feed hotlinks so the image may have appeared on your site, but will not have been stored there which means you wouldn't be liable for copyright infringement.
EDIT: Just to clarify because I didn't spell it out. Don't pay Getty.
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The real issue here is not whether you infringed on Getty's copyright, you clearly did not, but whether you were allowed to use the RSS feed to display on your site, particularly if your site is commercial.
A lot of RSS feeds state in the T&C's that they should not be used to display on another commercial site. You may want to check that.
Either way it's nothing to do with Getty as an RSS feed hotlinks so the image may have appeared on your site, but will not have been stored there which means you wouldn't be liable for copyright infringement.
Right, so I have revised the letter to reflect as follows..
Nancy Monson
Copyright Compliance Specialist
Getty Images Headquarters
605 5th Avenue South, Suite 400
Seattle WA 98104 USA
Case #1333597
Nancy,
Again, I appreciate you bringing to my attention the following images/articles on my website.
- http://www.hypebot.com/.a/6a00d83451b36c69e20176178a5810970c-popup (http://leegattenbymusic.com/2012/07/03/artists-and-labels-must-accept-the-new-music-industry/)
- http://www.hypebot.com/.a/6a00d83451b36c69e2017742f8b9cc970d-popup
(http://leegattenbymusic.com/2012/08/31/new-jobs-on-the-hypebot-job-board-2/)
As stated in my previous communication from you, I have removed this RSS feed and deleted all articles from Hypebot.com so they no longer appear on my URL.
However, I would like to point out the following:
- The images in question were not stored on my server but through a RSS feed (hotlinked as clearly shown above) from a third party.
- I have been in contact with Bruce Houghton, president of Skyline Music (which owns Hypebot.com). He states he has never had correspondence with Gettyimages for any copyright infringement.
In a nutshell, I have not violated US Copyright law.
Again, I thank you for bringing this issue to light! Obviously this is a sensitive issue that helps me as a musician understand the resources available to me as a copyright holder. I hope to have someone enforce my music copyrights like you do for your photographers copyrights.
Kind Regards
Lee Gattenby
Lee Gattenby Music
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Based on experience, Getty will write back and tell you all that matters is you displayed the images. If they do, tell them they are wrong. They may try to muddy the waters by telling you DMCA doesn't protect you. (It likely doesn't because you don't have a DMCA agent.) But. This is irrelevant. DMCA would only matter if you had violated copyright, which, as long as you did not host the images on your server (and as you showed, the images are not on your server) you did not.
You will want to cite Amazon v. Perfect 10 which was the 9th courts ruling in favor of Amazon and Google and against Perfect 10. In that ruling they say hotlinking is not copyright . Now... I need to find my letter to Getty.
If they persist in coming back, you should definitely write a complaint to the Attorney General's office. Complaint letters from people who were contacted when all they did was hotlink would be the best possible thing we can have. (After all: 1) It's clear Getty isn't checking, and they should be checking before sending out these stupid letters, 2) If they come back after you tell them your images were hotlinked, they are being really strong-armed. )
Alas for me, I didn't think to write the AG's office and my case was pretty stale by the time Greg started his letter writing campaign. But ideally, the people who get scary letter for hot-linked images, images that were really embedded in google ads and so on are the ones who really should be sending letters to the Attorney General so they can see the full extent of this Getty Letter program.
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Getty continues to stretch the envelope of what constitutes "use" of an image. Having an image displayed through an RSS feed is not having an image on your server nor is it you "using " the image at all. Don't engage them too much, the letter seems fine. Also you should register a DMCA agent for future issues
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You shouldn't have necessarily removed the RSS feed. Only check that you are allowed to feed them into a commercial site (if yours is).
You haven't infringed any copyright so no need to remove them unnecessarily.
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Do check whether the entity who provides the feed gives permission to run it. But that isn't Getty, it's the feed owner.
If Getty has an issue with the use of the images, they should contact the feed owner and discuss his use. Maybe their license states he should take care to prevent hotlinking. But that's between Getty and him not Getty and you.
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Getty continues to stretch the envelope of what constitutes "use" of an image. Having an image displayed through an RSS feed is not having an image on your server nor is it you "using " the image at all. Don't engage them too much, the letter seems fine. Also you should register a DMCA agent for future issues
Oscar, as I understand it, there are no solid case precedents involving copyright material obtained via RSS feeds (or site scripts that 'scrape' such feeds).
Being that a good majority of the the information offered up on many RSS feeds is intended for private personal use only (subject to site T&C's), my own point of view is that re-publishing any information pulled from a feed on one's own site would - in a broad sense - constitute a copyright infringement.
The tricky part stems from 17 USC §106 because the copyright holder is the one whom defines how, when or where their work is "published" (unfortunately, a still slightly grey area in the internet age).
Consider: if I grant USA Today a license to use one of my photographs in a story on their website - which will also be on their RSS feed - that's the total extent of my license. I certainly haven't granted other wannabe news sites the right to ride on USA Today's coat-tails, whereby they might use scripts or code to pull the story and photograph straight from the RSS feed and re-publish it verbatim on their own domains.
In such instances, sometimes they hotlink to the photographs, sometimes they pull in the images for direct hosting (often stripping metadata and changing filenames as they go). Either way, in my eyes, it's an abuse at the very least.
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Consider: if I grant USA Today a license to use one of my photographs in a story on their website - which will also be on their RSS feed - that's the total extent of my license. I certainly haven't granted other wannabe news sites the right to ride on USA Today's coat-tails, whereby they might use scripts or code to pull the story and photograph straight from the RSS feed and re-publish it verbatim on their own domains.
In such instances, sometimes they hotlink to the photographs, sometimes they pull in the images for direct hosting (often stripping metadata and changing filenames as they go). Either way, in my eyes, it's an abuse at the very least.
You may consider it 'abuse' to hotlink the images, but the highest court ruling in the US is the 9th circuit and they say hotlinking is not copying under our copyright laws. So, if you try to take that to court, you have a tough row to hoe. If you are in the ninth circuit, you will definitely have to take a run up the the US Supreme Court.
As current US law has been interpreted by courts, if you wish to prevent hotlinking of your images after licensing to someone like US News, you need your contract to stipulate that US News must prevent hotlinking by third parties However controls the server hosting images (in this hypothetical US News) can not only prevent hotlinking by anyone and everyone, doing so is trivial using .htaccess.
If you need it, this is the code:
RewriteEngine on
RewriteCond %{HTTP_REFERER} !^$
RewriteCond %{HTTP_REFERER} !^http://(www\.)?mydomain.com/.*$ [NC]
RewriteRule \.(gif|jpg|js|css)$ - [F]
Of course, US news would substitute their domain in the rule.
If your contract stipulated US News was required to prevent hotlinking and they did not do so, your argument would be with US News, not the person who displayed the image from their server. So far, American courts have seen the issue this way. I'm not a copyright attorney, but I have little doubt that the fact that US News, the copyright owner and anyone with a valid license can prevent hotlinking using in .htaccess will tend to make SCOTUS rule that hotlinking is not copying should a case ever arrive at SCOTUS. (It's also likely that anyone trying to get SCOTUS to rule hotlinking is a copyright violation is going to discover that Google, Amazon, EFF and numerous people are writing amicus briefs for the defendant in the copyright suit. So you'd better have a dang good lawyer. )
On the other hand, if a third party copies the image hosted by US News from US News
s server to server, you have a case against the third party who actually copied the image to their server. Go after them. Whether you like it or not, court rulings so far say hotlinking is not copying or displaying under US copyright. Right now, in the US, someone must actually copy onto their server for the copyright owner to prevail against them.
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The tricky part stems from 17 USC §106 because the copyright holder is the one whom defines how, when or where their work is "published" (unfortunately, a still slightly grey area in the internet age).
By the way: I totally agree on this.
Go here: http://newsblur.com/site/1100897/
Click on "text" , then click on the first two stories in the lower pane. I'm particularly fond of the 2nd one. :)
You will note that the "story" and "original" panes are blank. The feed is trimmed.
You can see how I reacted to Newsblur.
http://rankexploits.com/musings/2012/newsblur-a-modest-proposal/
That said: the legal route is not palatable to me. My stuff is a blog. I'm not going to spend the money on registering at the copyright office and so on. (Though I have to tell you, I was tempted when I recently saw that Newsblur added text scraping. Arghhhhh!!!!)
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That said: the legal route is not palatable to me. My stuff is a blog. I'm not going to spend the money on registering at the copyright office and so on. (Though I have to tell you, I was tempted when I recently saw that Newsblur added text scraping. Arghhhhh!!!!)
I agree that the legal route is not a pleasant thought; your mind may be changed for you if and when your work gets appropriated on a massive scale without proper attribution or payment to you - exponentially so if the ones doing the appropriation are large entities whom damn well should know better.
With that in mind, paying a $35 fee every quarter to the US Copyright Office might be a small price to pay so that you can better enforce your rights. Just my €0.02 worth!
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DavidVGolliath--
One difference between you an me is my blog is not a business. It's a hobby blog. So $140 a year would just be spending $140 a year for... what? The right to later hire a lawyer, who might get what? $200 for me? It's remotely possible that if I got a very, very good lawyer, he might be able to persuade a judge that the context of the copying means large punitive damages should be awarded-- but I think a good lawyer would tell me even he might not be able to get that. Generally speaking, I would probably have to hire the lawyer to get him to tell me his opinion on that. Given that the lawyer would need to spend time examining the facts of the case (and he has to understand those facts-- which involve crawlers etc.), it would probably cost me another $500 minimum to get the lawyer to figure out if he thought there was any chance of winning anything.
(This sort of thing might make a decent hypothetical for Oscar's class. But I would be very leery of hiring someone like Oscar at his going rate to try to convince a judge that large monetary levies should accrue to me. OTOH: it might be the sort of case where "Class Action" could be pursued-- if that sort of thing is even possible with copyright.)
I'm going to technology route instead. It's free. No lawyers. And so on.
In contrast: The copying of your images is pretty cut and dried. You can establish monetary value. It's sufficiently high that the $140/year is worth spending relative to other costs. The value is sufficiently high it's worth hiring the lawyer And so on.
As for who is copying: Newsblur is certainly hoping to be a big business. They've had a large jump in customers owing to Google Closing down it's feed reader.
Their business model clearly involves copying content from many, many small parties each of whom likely individually has little ability to monetize their content as text. Some blot authors (possibly most ) won't care.
But Newsblur didn't come knocking on my door to ask if they could copy. They don't follow conventional protocols for crawling (robots.txt doesn't have force of law though. Plus maybe the periodic visits aren't considered "crawling". ) They call their product a "feed reader", but in reality, they copy much more than just the feed-- feed is a term of art. And they didn't exactly respond at the speed of light when I asked them to stop copying. (And more over, it doesn't seem to occur to them that if I asked them not to frame or copy for their two views, they should assume that applies to their brand new "full text" version. They are selling access to these "full text" feeds as a premium feature.)
Oh.. unlike other feed readers, their "feeds" are accessible to anyone not just those who have subscribed. (As you saw, I gave you a link. You don't have to have subscribed to my feed to read that.)
My view is: if I was an investor or someone thinking of buying the company, I would want to find out if there is a potential looming class-action suit springing from the copying. But I doubt any small individual is going to hire lawyers to file a suit against Newsblur in California, where I think it operates. OTOH: They are copying craigslist. https://getsatisfaction.com/newsblur/topics/craigslist_failing_to_update_automatically_insta_fetch_is_fine
Craigslist has been known to sue.
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One difference between you an me is my blog is not a business. It's a hobby blog. So $140 a year would just be spending $140 a year for... what? The right to later hire a lawyer, who might get what? $200 for me? It's remotely possible that if I got a very, very good lawyer, he might be able to persuade a judge that the context of the copying means large punitive damages should be awarded-- but I think a good lawyer would tell me even he might not be able to get that. Generally speaking, I would probably have to hire the lawyer to get him to tell me his opinion on that. Given that the lawyer would need to spend time examining the facts of the case (and he has to understand those facts-- which involve crawlers etc.), it would probably cost me another $500 minimum to get the lawyer to figure out if he thought there was any chance of winning anything.
Whilst I wholly understand and respect your position, allow me to playing Devil's Advocate here: that $140/year could protect you from appropriation of your work by Big Media - trust me, it happens.
There are guides out there as to how much you should be compensated for use of your work (http://www.writersmarket.com/assets/pdf/How_Much_Should_I_Charge.pdf is an excellent primer) so you'd have a grasp of fair market values for actual damages.
Of course, Big Media absolutely should know better than to rip off a casual blogger, so the sledgehammer of statutory damages is a useful one to have in your negotiations toolbox.
I'd love to avoid all cynicism and say that this will never happen to you but, if you truly value your content and work - no matter that you call yourself a hobby blogger - then it's something worth considering.
From a personal standpoint, I never thought I'd see some of my own works being appropriated by the likes of Fox, MSN, Yahoo and others (hence my screen name here ;) )
Just my €0.02
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I'd love to avoid all cynicism and say that this will never happen to you but, if you truly value your content and work - no matter that you call yourself a hobby blogger - then it's something worth considering.
I'm not saying it could never happen. I'm saying that even with copyright, I don't think I'd collect enough to make it worth hiring an attorney or that the probability of anything I could collect on happening is sufficiently low that I might be better off spending the $140 on lottery tickets.
As I see it either
a) It would be worth registering the copyright fresh content within the 3 month window that Newsblur copied right now and suing Newsblur right now or
b) It is not worth spending the $140 a year on the theory that I could, hypothetically sue someone if they copied the way Newsblur copies right now.
Unless (a) is worth doing right now, then (b) cannot be worth doing because I find myself in the exact same position.
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Here is an update:
What I received from Getty today..
Mr. Gattenby:
You are responsible for paying the settlement fee as the images were displayed on your website. It does not matter if the images were stored on your server. If you wish to have your third party reimburse you for the amounts you pay to Getty Images, that is between you and your third party.
Nancy Monson
Copyright Compliance Specialist
Getty Images Headquarters
605 5th Avenue South, Suite 400
Seattle WA 98104 USA
Phone 1 206 925 6125
Fax 1 206 925 5001
My response
Nancy,
again.. thank you for your concern. If you check your records (or use http://archive.org/web/web.php) you will see that these image files were hot linked via RSS feed. They were never on my server and were hotlinked.
The 9th Courth of Appeals ruled that hotlinks do not constitute copyright infringement. The case is here: http://www.internetlibrary.com/cases/lib_case476.cfm
Please check your law references in this matter. I have been more then amicable in that I have pulled the RSS feed, which I did not have to do.
Kind Regards
Lee
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And why does an ordinary citizen have to inform a "Copyright Compliance Specialist" from Getty about US Copyright law?
Could whoever is reading this from Getty Images please ask Ms Nancy Monson? I would really like for someone from that organization to just clarify their position.
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http://copyright-trolls.com/site/getty-images-very-own-nancy-monson-might-deserve-the-asshat-of-the-month-award/
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It just shows that Getty and their employees really don't care and are not interested in the protection of their artists IP rights but only in their business model.
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When does Getty's behaviour bridge the grey area between legal and illegal?
They love to tell letter recipients that ignorance is no defence of the law but surely blatantly lying to someone about what constitutes copyright infringement in order to obtain money could be considered extortion.
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Couch_Potato, I think that is a question for the courts to answer, but filing a suit is expensive, time consuming, and risky. If they get a judgement in their favor, they can become even more of a monster.
I suggest you, and anyone else on this forum who feels they have been lied to by lawyers seeking to collect money, pursue the extortion issue with the Washington State Bar Association. It is my understanding that others on this board have found that extortion does violate the Washington Supreme Courts Rules of Professional Conduct (RPC) and therefore falls within their jurisdiction.
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The fact that "hotlinking" is not infringement lies in "case law", and not actual "copyright law".
Therefore, I think that Getty is entitled their "opinion", even if we disagree with it.
But, yes... Getty is misleading people into paying money they don't owe.
It would be difficult to make a strong legal case against Getty on this basis, though.
S.G.
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soylent--
If all you mean is the copyright law doesn't explicitly describe the practice of hot-linking and explicitly stating that act is or is not a violation, I agree with you. If the statute was that clear, there likely would have been no Amazon v Perfect 10 in the first place.
But the case law is the result of the court interpreting and applying US copyright law to the facts in place. Right? And I'm pretty sure in the end the 7th circuit did the same thing with the male porn case. I need to dig that up. You can get a lower court ruling that said it wasn't going to apply Amazon. V Perfect 10, but that got appealed. Posner wrote something. It's a fun read-- but I don't remember the details.
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Flava--
http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=53931
https://www.eff.org/my/cases/flava-works-v-myvidstercom
http://en.wikipedia.org/wiki/Flava_Works_Inc._v._Gunter
Many things were alleged by Flava. I think the part relevant to hot linking is
myVidster was also not responsible for any performance "publicly". While arguably at infringement "performance by uploading" took place, this was not related to myVidster. On watching, myVidster users received the media directly via a third party (myVidster "did not touch the data stream") and the "performance" was neither "public" nor "performed" by myVidster. (By analogy, when a newspaper states a play is on, and provides directions to where it may be seen, it is not thereby "performing" them or causing them to be "performed") To decide otherwise would "blur the distinction between direct and contributory infringement" to an inappropriate level.
I this case, the hotlinking would be "framing" since the content was videos.
There are many many fun quotes in that ruling.
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Of course, I agree with Lucia.
My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".
In fact companies and people accuse each other of legal transgressions every day.
Somebody's always right, and somebody's always wrong. But, the accusation itself isn't a "crime", or "fraud".
Now, if some actual material facts were misrepresented, somebody paid, that person could prove such, AND they didn't sign a confidentiality agreement, they MIGHT have a case against Getty.
...and yes, I know where this is going... and it's a waste of everybody's time.
S.G.
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The fact that "hotlinking" is not infringement lies in "case law", and not actual "copyright law".
Therefore, I think that Getty is entitled their "opinion", even if we disagree with it.
Even the Electronic Frontier Foundation admit "The legal status of inlining images without permission has not been settled" (http://www.chillingeffects.org/linking/faq.cgi#QID230)
This is because 17 USC § 106 states the following
"in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly" (emphasis mine)
Consider the following: Entity A purchases a license to use a photograph or graphic on their website. Entity B comes along and 'hotlinks' to the photograph that Entity A have legitimately licensed.
To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.
Entity B, via their actions, has bypassed the legitimate licensing market for the original photograph/graphic and - on these actions - a rightsholder would be pretty much entitled to the opinion that their copyrights have been infringed (with any fair use claim probably sailing out the window too)
If the actions of Entity B were entirely legal per copyright legislation and case precedents, why would anyone ever want to legitimately license an image?
Oh and yes, I'm well aware of the 9th Circuit's opinion in Perfect 10 vs. Amazon... but that dealt with thumbnail-sized images. What I'm talking about here is an attempt at circumvention of copyrights in an effort to use full-sized images on websites without paying for them.
It appears that "hotlinking" to images doesn't (or hasn't) happened on a sufficiently large enough scale from any single infringer to make the matter viable for pursuit through the courts to the appropriate level to once and for all get a definitive answer.
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DavidVGolliath--
The 9th circuit and 7th circuit both ruled it was not a copyright violation.The other 9 out of 11courts have not ruled on the issue.
The circuit courts are directly below the US Supreme Court ( aka "SCOTUS") and their rulings are binding in their jurisdictions until overturned. You can see the extent that covered by the 9th and 7th:
http://upload.wikimedia.org/wikipedia/commons/thumb/d/df/US_Court_of_Appeals_and_District_Court_map.svg/620px-US_Court_of_Appeals_and_District_Court_map.svg.png
The parties (both pornographers) who lost their copyright cases and whose loses results in rulings that inline linking is not copyright either did not appeal their cases to the US Supreme Court or SCOTUS declined to hear them. (I don't know which is true). So, SCOTUS has neither heard nor ruled on the cases. As they have not ruled, and there are no rulings in 9/11 circuits one might prudently say the law is not settled.
That said: For all practical purposes the case law is settled in the 9th and 7th where the rulings from Amazon v. Perfect or Flava v. whosiwhatsit hold. Until SCOTUS rules otherwise, inline linking is not copyright violation in these districts. Meanwhile, one can correctly state that the issue is not settled in, for example, New York (2nd district) or Alabama (11t district) .
It's worth understanding that as long as the circuits are agreeing with each other, (as they are), it is unlikely SCOTUS will accept any appeal though they might if some of the judges of the Supreme Court were dubious about the lower court ruling. So, one will find the issue is technically "not settled" until such time as every single one of the 11 courts rule and all are in agreement or the issue gets to SCOTUS. Chances are neither will ever happen. There are zillions of issues like this.
As for who is saying what: Stinger and I live in the jurisdiction of the 7th circuit. The server I use in in the 9th. Getty is in the 9th circuit. Getty, writing from a jurisdiction where the prevailing court ruling is that inline linking is not copyright violation, told me, living in a jurisdiction where the prevailing court ruling is inline linking is not copyright violation. The server I use is in a district where inline linking has been ruled not copyright violation. Its all well and good for EFF or someone to claim there is something unsettled here. But to some extent, everything is "unsettled" in the sense that at any time, any ruling could, hypothetically, be overturned.
The fact of the matter is: if Getty wants to prevail in a copyright suit for my inline linking of a cardinal, they are going to have to present it in the 7th circuit where the case law ways it's not copyright violation. The local judge will apply Posner's ruling. Then they will have to appeal to the 7th. Were they will have to try to explain that to Judge Posner (http://en.wikipedia.org/wiki/Richard_Posner) that he was wrong. And then, when he rules against them, they will ahve to appeal to SCOTUS, who will probably not even accept the case. EFF will continue to say the case is "not settled" because SCOTUS will not rule. Getty will have lost.
And you know what? I think it's unlikely this will ever be "settled" because at most 2 more circuits will ever be willing to hear the cases, when they do, they will agree with the 7th and 9th. After that, no one will appeal to SCOTUS and SCOTUS will never rule.
But the fact is: When Getty claims it doesn't matter whether one put the file on their server: They are wrong. So far, US circuit courts that have ruled say it does matter. Anyone who gives Getty a penny for a hotlinked image is a fool.
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I quite agree that Getty would be unlikely to prevail on the basis of a "hotlinked" image.
Additionally, I agree that it would be foolish to pay Getty for such an alleged infringement.
Couch_Potato asked, "When does Getty's behaviour bridge the grey area between legal and illegal?"
I don't think Getty has done something "illegal" in situations like this.
It would probably be a "losing case" for Getty, but it's not a crime for Getty to imply that they "might have a case".
Especially given that one can literally sue over anything.
S.G.
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To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.
Yes. But this is irrelevant to the ruling in both Amazon v. Perfect 10 and Flava v. MyVidster.
Consider the following: Entity A purchases a license to use a photograph or graphic on their website. Entity B comes along and 'hotlinks' to the photograph that Entity A have legitimately licensed.
To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.
Entity B, via their actions, has bypassed the legitimate licensing market for the original photograph/graphic and - on these actions - a rightsholder would be pretty much entitled to the opinion that their copyrights have been infringed (with any fair use claim probably sailing out the window too)
Are you asking why Entity A might license if entity B could just hotlink the images Entity A displayed? If Entity A is the New York times, I can think of dozens of reasons why someone like The New York Times or the Wall Street Journal might want to license from the photographer rather than trying to find an image someone else is displaying. They might find it commercially useful to be the "go to" places for all the "Bs" who want to hotlink. Or they might not like to be seen hot-linking from party 'Z' (who presumably bought a license) . Or as commercial entities, they might find it less expensive to license than to pay their workers to hunt around for appropriate images to hotlink. Or they might not want to run the risk of hotlinking from "party Z" who is a competitor of A, notices A is hotlinking gets pissed off, fiddles with the Z's .htaccess file and suddenly causes porn images to appear on entity A's web page.
But beyond that, if the photographer who licensed to entity A wants to prohibit hotlinking he should write specify that entity A must block hotlinking of images hosted on A's server. This is easy for entity A to do. In that case, entity B will be unable to hotlink because the ability will be blocked. If entity A fails to prevent hotlinking that will be a tort between the photographer and entity A. I don't know whether the issue will be a copyright violation or a breech of contract, but it will be entity A doing something that the license did not grant them. It is not a matter between the photographer and entity B. Moreover, if the photographer wants to prevent B from hotlinking, he can contact entity A and demand they change their code to prevent the display at "B" and the images will vanish from B, "poof".
Mind you: if the photographer insists A disable hotlinking, A may become unwilling to license the photographers photos. Because it just may well be that one of the reasons A runs photos is precisely because they find that people who hotlink sometimes create traffic for A. So the issue could work out precisely the opposite way from what you assume. (In fact, I suspect this is likely. Because if the New York Times didn't want people to hotlink, they could disable hotlinking. They don't. )
Oh and yes, I'm well aware of the 9th Circuit's opinion in Perfect 10 vs. Amazon... but that dealt with thumbnail-sized images. What I'm talking about here is an attempt at circumvention of copyrights in an effort to use full-sized images on websites without paying for them.
The size was totally irrelevant to the hotlinking issue. Size did matter with respect to cached images, but those were actually copied, not hot linked. Size did not matter in hotlinking.
Also: Read Flava. They hotlinked entire movies. Full. Size.
It appears that "hotlinking" to images doesn't (or hasn't) happened on a sufficiently large enough scale from any single infringer to make the matter viable for pursuit through the courts to the appropriate level to once and for all get a definitive answer.
What are you talking about? Google's hotlinked and continues to hotlink many full size images. They did so with Perfect 10. MyVidster inline linked (aka hotlinked but for movies) whole movies. Perfect 10 pursued in one case. Flava in another.
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Of course, I agree with Lucia.
My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".
Sure. I agree Getty accusing someone of infringement is not a crime. People accuse other people of things all the time.
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Of course, I agree with Lucia.
My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".
In fact companies and people accuse each other of legal transgressions every day.
Somebody's always right, and somebody's always wrong. But, the accusation itself isn't a "crime", or "fraud".
Now, if some actual material facts were misrepresented, somebody paid, that person could prove such, AND they didn't sign a confidentiality agreement, they MIGHT have a case against Getty.
...and yes, I know where this is going... and it's a waste of everybody's time.
S.G.
I don't think anyone has brought this up before. But what about a class action suit.
HAHAHAHAA! (Sorry S.G., I couldn't resist.)
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aaaarg!!
>:(
S.G.
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HAHAHAHA :D
Of course, I agree with Lucia.
My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".
In fact companies and people accuse each other of legal transgressions every day.
Somebody's always right, and somebody's always wrong. But, the accusation itself isn't a "crime", or "fraud".
Now, if some actual material facts were misrepresented, somebody paid, that person could prove such, AND they didn't sign a confidentiality agreement, they MIGHT have a case against Getty.
...and yes, I know where this is going... and it's a waste of everybody's time.
S.G.
I don't think anyone has brought this up before. But what about a class action suit.
HAHAHAHAA! (Sorry S.G., I couldn't resist.)
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Why hadn't I thought of that before?
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OK all, just wanted to thank you for all your help in this matter. Much appreciated!
FOR SETTLEMENT PURPOSES ONLY
Mr. Gattenby:
We have further reviewed this matter. The use of the images is unauthorized use which would have required licenses to be purchased prior to display. Because these are on your blog, we will close the case with removal of the images.
Nancy Monson
Copyright Compliance Specialist
Getty Images Headquarters
605 5th Avenue South, Suite 400
Seattle WA 98104 USA
Phone 1 206 925 6125
Fax 1 206 925 5001
Note the grammer twitches, not a really well thought out response.
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That is great news that they have decided to close your case, congratulations! Do not be too surprised at the grammar from Getty's Compliance Specialist as in my opinion they don't seem to be the type that other corporate entities are trying to steal away.
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Only cause I'm known to be an asshat from time to time, I would reply back to this copyright clerk, and thank her for closing the case, whoever I'd be reluctant to remove the feed from my page, as clearly it is not an infringement, and they ( Getty) have no right to tell me that I can't have a feed there, regardless of what shows in it... Getty Images Copyright Compliance Specialist Nancy Monson is not only a fracking troll she's a MORON, she should go work for Prenda Law and assist them with the porn trolling industry..
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Good result - just a time suck and brain drain