Statute of Limitations

[Lettered]

Hi Infringer,

Here's the best article I've found so far (as far as being to the point and easy to understand) and well worth a read:

http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-one.html

Is there a risk of damages being awarded outside the 3 year window in typical Getty demand letter cases?  Sure, but I think that risk is insignificant (at least in my own case . . . a Getty demand letter).  The risk is so small (in my mind) that I don't even really think of it as a risk, and I certainly won't base any decisions on such a small risk. That's just my uneducated opinion.

I look at it this way:  There is also a small risk that an entirely new precedent could be set if you went to court and you could really be taken to the cleaners over a single unregistered image.  Obviously, I think that risk is also quite small.  I won't base any of my decisions on that small risk either.

That's pretty much my view on the matter unless and until a lawyer tell me I'm wrong to look at it this way.

Not that I'm losing any sleep over Getty now, but I certainly won't be losing any once their demand letter to me is over 3 years old.



infringer Wrote:
-------------------------------------------------------
> The way I see it, the point Helpi is trying to
> make is very significant if you're faced with a
> demand letter for a registered image (i.e. from
> Masterfile) that you had been using for > 3 years.
>  If the image was registered when you used it, you
> must settle or likely face a lawsuit.  The
> copyright holder is going to demand damages based
> on the length of time they believe you have been
> using the image (usually by looking your site up
> in the Way Back Machine).  If the circuit you are
> in is using the injury rule and you had the image
> for 6 years, you are in a better position to
> negotiate because you are only exposed to 3 years
> of damages.  Otherwise, if the court uses the
> discovery rule, you'll loose out on that
> bargaining chip.

[infringer]

As far as Getty goes, the bigger question I see is like you said - could they file a lawsuit 3 years after you take down their images AT ALL?  I think we all agree the answer is no.  This injury rule vs discovery rule debate only seems relevant to cases involving registered images (e.g. where the plaintiff is Masterfile).  It would be interesting to hear from Oscar how effective the argument of recovering a maximum of 3 years worth of damages is with Masterfile.

[Helpi]

"could they file a lawsuit 3 years after you take down their images AT ALL?  I think we all agree the answer is no."

No, we don't.  But instead of repeating the issue. Or pointing you to case law.  How about another attorney writing for a general audience ?

Like this site (see "Handling Past Infringements" and "Collecting Damages.") :

http://rising.blackstar.com/is-there-a-statute-of-limitations-on-copyright-infringement-claims.html

Of course, if the case was weak to begin with it only gets worse with the SOL issue.

" It would be interesting to hear from Oscar how effective the argument of recovering a maximum of 3 years worth of damages is with Masterfile."

I believe Oscar has already stated his "opinion of how this issue should be resolved." and that "for folks who have the images up for 4,5, 6 years whatever, the image companies cannot get more than a maximum of three years worth of damage."

Interesting to note that this other attorney is writing for content owners (i.e., photographers) and Oscar is focusing this board for content users.

"This injury rule vs discovery rule debate only seems relevant to cases involving registered images"

I don't know where you get that but at some point it's time to move on to another thread.  And it's not my board so I think for me that time is now.

(And I assume by registration you mean registration within the time frame necessary to be eligible for statutory damages and/or recover attorney fees. Unless dealing with a non-US work, you have to register to get into court. If Getty is dealing with an unregistered image it will have to be registered at some point if they want to go to court. The image can be registered at anytime during the life of the copyright.)

[infringer]

OK, I see the point you're trying to get across now.  If I had an unlicensed image on my website up until 2005 and Getty didn't become aware of it and send their letter until 2010, I would still be exposed if the court is using the discovery rule.  Good to know.  However, I don't think any of the stock image companies are scouring the way back machine for infringement... yet.

As far as exposure to damages for periods > 3 years: I understand what Oscar's opinion is, but what I'm asking is how effective is his argument with the stock image companies?  I'm sure they will say that they are entitled to all damages, but is the argument an effective tool in getting them to reduce their settlement demand?

And yes, you assumed correctly regarding what I meant by registration.  I apologize for being unclear.

[Lettered]

The discovery rule in your example would get you damages outside the 3 year window preceding filing of the suit, but I'm not at all convinced that it would get you more than 3 years total damages (unless there was some fraudulent concealment).

 "Outside the 3 year window of filing suit" and "more than 3 years damages" are two different things.  

You might recover damages on an infringment that occured "outside the 3 year window of filing suit" (discovery rule), but you still can't get "more than 3 years damages".  That's my understanding, anyway.



infringer Wrote:
-------------------------------------------------------
> OK, I see the point you're trying to get across
> now.  If I had an unlicensed image on my website
> up until 2005 and Getty didn't become aware of it
> and send their letter until 2010, I would still be
> exposed if the court is using the discovery rule.
> Good to know.  However, I don't think any of the
> stock image companies are scouring the way back
> machine for infringement... yet.
>
> As far as exposure to damages for periods > 3
> years: I understand what Oscar's opinion is, but
> what I'm asking is how effective is his argument
> with the stock image companies?  I'm sure they
> will say that they are entitled to all damages,
> but is the argument an effective tool in getting
> them to reduce their settlement demand?
>
> And yes, you assumed correctly regarding what I
> meant by registration.  I apologize for being
> unclear.

[Matthew Chan]

Generally, I try to give some latitude in discussions here.  This thread has certainly generated it share of discussion.

But there is an unpleasant undertone I wish to acknowledge here and hopefully defuse.

Helpi, you seem to be a very intelligent and analytical person as is presented through your arguments. But I must agree that I am unclear as to what capacity you are speaking in. If you are, in fact, an attorney or someone with legal training, it was not made clear. You don't to identify yourself by name if you don't want to but you did take an unfair "swipe" at one of our regular participants.

In an earlier comment, Oscar acknowledged that is part of the "beauty and curse" of the law, that you can often interpret things how you like but ultimately the argument must be tested in court if you want substantiation. But even in court is not absolute. There is a chain of command where if it deserves enough merit, you can go all the way to the U.S. Supreme Court.

Being on this particular discussion board, it is only going to be natural that Oscar's legal opinion is going to dominate here. I (and many others) rely on his legal expertise which he freely dispenses through this website and its related resources (videos, audios, articles, forum posts, etc.) After all, when I started this site, my goal was to find people to argue for MY side, not Getty's side! Lucky me (and so many others who have visited this website), Oscar hit the ball out of the park and understood my amateurish intent/rationale and translated it to "legalese".

Could the scenario you painted occur in court? It is conceivable but I will say that the general consensus is that Getty is certainly not going into full-blown lawsuit mode for cases with only a few images regardless of what arguments could be made in their favor. The stipulation we make is that they may decide one day to make an example out of someone (ala RIAA lawsuits against teenagers).

Helpi, you may in fact have some legitimate arguments and concerns. Oscar and I are continually impressed by the quality of discussions that occur without our intervention.  They simply "happen". Whether you know it or not, you have positively contributed to this. Your replies are NOT being deleted. You have come upon Oscar's radar and he has acknowledged your thread. He may or may not agree with you but your arguments are here nonetheless.

I say all this because I don't want discussion disagreements here to become unpleasant. Sometimes, you simply have to have a friendly agree to disagree attitude. Bottom line, we welcome intelligent and spirited discussion, but revealing the context (and perhaps your qualifications) from which you speak might be very helpful.

MatthewC



Lettered Wrote:
-------------------------------------------------------
> Helpi Wrote:
> . . .
> > Thanks for the compliment. Reminds me of the rewards of of pro bono work.
> >
> . . .
>
> No offense intended, and if you are indeed a lawyer, I appologize for the incorrect assumption that you were not.

[Helpi]

Like I said, it's not my board.  However:

"OK, I see the point you're trying to get across now. If I had an unlicensed image on my website up until 2005 and Getty didn't become aware of it and send their letter until 2010, I would still be exposed if the court is using the discovery rule."

Didn't become aware of it won't cut it. It depends on why they weren't aware until 3+ years later. But, yes, depending on the court and the facts I would not say "AT ALL" as you did. Though obviously if it makes no economic sense to pursue small time, potentially innocent infringement within 3 years it's that much less appealing if you have to argue about the SOL first.  

"Good to know. However, I don't think any of the stock image companies are scouring the way back machine for infringement... yet."

If it comes up it may be in the context of arguing about damages. Incidentally I don't know where Getty is coming from asserting that "enforcement costs" are part of "actual damages."  Do they actually say that in their demand letter ? I don't think so.

It would be interesting to see the formula whereby Getty allocates "enforcement costs" to its contributors. Do they do it on an image by image basis or some other allocation? What if the cost exceeds the return ? Who eats it ?

"As far as exposure to damages for periods > 3 years: I understand what Oscar's opinion is, but what I'm asking is how effective is his argument with the stock image companies? I'm sure they will say that they are entitled to all damages, but is the argument an effective tool in getting them to reduce their settlement demand?"

Do they even go into the period of infringing activity when making their demand? Can they even determine what it is ? They seem to just present a number. Where do they get it from ? What does it represent ? Why is their release so poorly written "this identified past infringement" ? What is that referring to ?  Ah Getty, so many questions so few answers. Whose going to pay for all the answers. I'm not. You can hire Oscar for a full out lawsuit and get some answers to these questions that are puzzling me.

Obviously any argument convincing them of anything making their case weak(er) will help.  Here's an argument. Has any court ever allowed it for a stock image company pursuing an innocent infringer of a photo on a web site ? No did you say ? That's pretty compelling. No court has ever allowed it. I like that. That's mine. You can't use that.

It looks like they try to get what they can get, right ? Look, it might be nice for content owners and their alleged exclusive licensees for there to be a small claims court to resolve small-time infringement. Especially when the image is not registered prior to infringement. But there isn't.  And Congress wants you to register early. And you didn't. So that's too bad. So they have to go to federal court. And often pick up their own fees. It can get expensive. Even if they could get actual damages for another year+ license fee that doesn't mean the case is so wonderful.

If you have real world questions relating to a real world demand letter, you should get a real world lawyer.

[Helpi]

Admin, what in particular did you find "unpleasant" ?

It's your board so feel free to delete what you wish. But don't expect people to participate if you delete their posts.

"But I must agree that I am unclear as to what capacity you are speaking in."

In what capacity ?  I have absolutely no dog in this fight. No affiliation with Getty. I found the site and some of the issues interesting. I should add that I realize receiving these letters causes real distress to people receiving them and I'm, of course,  sensitive to that. I thought I was adding to the conversation. If you want a site sanitized with only site approved views, your choice.  

Regards.

[infringer]

Well, my real world experience involved Masterfile (who does register) not Getty, so I see the situation a bit differently from a Getty recipient, but...

"Incidentally I don't know where Getty is coming from asserting that "enforcement costs" are part of "actual damages." Do they actually say that in their demand letter ? I don't think so. "

It wasn't in their initial demand letter, but in the course of negotiating with them they did tout enforcement costs as justification for their demand amount.

"Do they even go into the period of infringing activity when making their demand? Can they even determine what it is ?"

Yes, they did.  In my case the initial demand was 3x the cost of a license for the period I had been using the image.  It's pretty easy to determine how long an image was being used on a website with the internet way back machine (see: www.archive.org).

"Obviously any argument convincing them of anything making their case weak(er) will help."

Precisely why I'm interested in the SOL.  Masterfile does sue over single-image infringements, so reaching a settlement was what was recommended to me.  Coming up with a fair settlement offer is difficult because there are lots of nuances to how courts arrive at damages (as this discussion clearly shows).  The more arguments this site can provide to people in the same situation I was in the better.

[Matthew Chan]

Apparently, I was unclear (or perhaps misunderstood the initial comment) although I did quote the comment in question.  You mentioned something about the "rewards of pro bono work."  Lettered replied "No offense intended, and if you are indeed a lawyer, I apologize for the incorrect assumption that you were not."

As a general rule, posts don't get deleted unless they cross the line in some fashion. Having a cordial and civil disagreement does not qualify for deletion. As I said, I felt you added to the conversation.

What I meant by your capacity is pretty simple.  If you are a qualified attorney, say so.

MatthewC

Helpi Wrote:
-------------------------------------------------------
> Admin, what in particular did you find
> "unpleasant" ?
>
> It's your board so feel free to delete what you
> wish. But don't expect people to participate if
> you delete their posts.
>
> "But I must agree that I am unclear as to what
> capacity you are speaking in."
>
> In what capacity ?  I have absolutely no dog in
> this fight. No affiliation with Getty. I found the
> site and some of the issues interesting. I should
> add that I realize receiving these letters causes
> real distress to people receiving them and I'm, of
> course,  sensitive to that. I thought I was adding
> to the conversation. If you want a site sanitized
> with only site approved views, your choice.  
>
> Regards.

[Oscar Michelen]

I think Helpi's posts are helpful  and I know that Matt does not delete comments or posts that disagree with the content of this site or other's opinions as long as the discourse remains civil. So he does not seek a "Sanitized site" and merely scouring the other topics and posts will reveal that.

Masterfile generally holds to the position that they can sue for all the damages incurred as long as the image was up even if it was up for more than three years after they discovered it. I think they are wrong on this point of law and generally speaking we "agree to disagree" on this and on other issues when we talk about a case in particular. When we decide on a settlement figure we don't break it down on "per year" basis its a lump sum for a global settlement taking in to account a variety of factors. I think the Act is clear that three years back from the date you take it down is as far as they can get damages for.