The famous letter and some questions about liability

[atch]

Hello,

First I would like to thank for this website. As many others I received a letter from the Getty Images and was really shocked before I started digging the Internet for similar cases. I've found a lot of messages here and there but none of them were similar to my case.

I created a non-profit web-portal long time ago (~7 years) containing public blogs, discussion boards and other social-oriented services available to any visitor after a free registration process. To reduce dedicated server expenses I also host few sites owned by other people. These sites are integrated into my portal and benefit from the centralized system of mentioned above social-oriented services. I must emphasize the important points:
 - the portal contains sites owned by a 3rd party
 - the portal gives access to a public discussion board, blogs etc to any visitor passing a free registration process.

Recently I received a letter from a lawyer company representing Getty Images, claiming that they found X images on my portal and asking for ~$40K. They didn't provide URLs but scanned copies of the copyrighted photos. I spent few hours and found almost all images: some of them were uploaded by the visitors to their blogs, others were used on the hosted sites.

My question is whether I can be treated as a online service provider and thus being not liable for any content uploaded by users of my service (keeping in mind that I stated it in portal's ToS and I am willing to remove any copyrighted material upon request)?

[atch]

I would really appreciate any comments! Thank you!

[davep42]

Atch, wait for attorney Oscar to get a chance to address this question or try contacting him in person. Your situation is different because you didn't use the pics yourself but I don't think it makes you more liable.  Probably less.

[Oscar Michelen]

Dear Atch:

(1) You have a plausible defense that the Digital Millennium Copyright Act applies to you because you are not posting items but allowing others to upload content. While your site is not the type of site that the DMCA had in mind, frankly there has been so little litigation under the DMCA that there are still a lot of open questions. Wikipedia actually has a prettty good page on DMCA if you want a quick summary. I think it is a position worth taking because under the DMCA they would have had to send you a cease and desist notice first.

(2) Getty does take a different posture with true not-for-profits. Its one of the only areas where they show flexibility.  If you are a registered 501(c)(3) not for profit then they may listen to reason.  Even if you are not registered, but can show that the site is not a  true commercial site, they may drop the value they seek. But with so many images, it could still be a fair chunk of change.

Contact me if you would like us to write the letter for you or if you want to first discuss the issue. my email is xxx

[atch]

Hi Oscar,

Thank you for the fast reply!