Settlement demand for images from an RSS feed (gettyimages)

[lgattenby]

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.

[Couch_Potato]

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.

[lgattenby]

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

[lucia]

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.

[Oscar Michelen]

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

[Couch_Potato]

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.

[lucia]

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.

[DavidVGoliath]

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.

[lucia]

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.

[lucia]

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!!!!)

[DavidVGoliath]

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!

[lucia]

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.

[DavidVGoliath]

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

[lucia]

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.

[lgattenby]

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