Windows Vista sample images

[papageek]

Hello, I just received the lovely Getty letter for 2 images and a bill for $2000 or $1800 with the 10% settlement demand discount because someone uploaded two thumbnail images (used as avatars) on my site. These are included as part of the Microsoft Windows Vista Home Premium sample pictures! Has anyone else seen this? A better question though may be, does Getty Images have the right to claim copyright infringement on an image that is distributed by Microsoft, as part of an operating system. I just did a quick Google search for the same images they claim (green sea turtle and lit dock/sunset) and there must be thousands of sites with these photos being used, displayed and distributed! Not to mention they are distributed as part of the operating system that could be in use by literally millions of users worldwide. I realize that as the website operator, I am responsible for what my users do, but come on! I highly doubt that anyone who uses Windows (or Mac or Nix flavors for that matter) have any idea that the images are copyrighted and they cannot use them for anything. I haven't had a chance to read over the billion pages of Microsoft's user agreement yet but I wonder if there is any sort of disclaimer or copyright assignment on the images they include. Any thoughts or suggestions?

[Oscar Michelen]

This is pretty interesting, we have come across images claimed by Getty that come from CD packs and the like , but have not been told about this Vista issue.  I would ask that you send me via email (xxx) the screen shots, etc. If this checks out I think we need to really advertise this on the net and to Microsoft. If anyone else has heard anything about this please let us know as well.

Thanks for the post

[BullDog]

Hi Oscar,

There is another post on this forum about a Windows Vista image (creek.jpg) that Getty Images claims rights to.

http://www.extortionletterinfo.com/forum/read.php?2,35,35#msg-35

BullDog

[BullDog]

PapaGeek,

You said in your post: "someone uploaded two thumbnail images (used as avatars) on my site."

It sounds like you are an owner of an online forum and it was one of your members who uploaded the images in question.

If that is true, then you should be protected under the Digital Millennium Copyright Act of 1998 which protects you the forum owner from things your members do. I think it is called safe harbor. But I am not sure of that. Oscar can straighten me out on that one.

Here is some info http://en.wikipedia.org/wiki/DMCA

BullDog

[Oscar Michelen]

Hey Bulldog:

I answered him in an email that the DMCA may protect him as it protects those sites that allow others to upload content. If he qualifies under the act, then Getty would have been required to send him a cease and desist notice first. I wonder if Getty has contacted Microsoft about these images.  I don't have Vista but I also wonder if there is disclaimer language in the EULA or elsewhere that says Microsoft does not guarantee the orginality of any of the images. But if Getty could show that Microsoft is using its copyrighted images without permission, then it might be onto a valid claim worth pursuing.  One wonders why Microsoft wouldn't use Corbis images since Bill Gates owns that company. It just shows you how anyone can fall into this situation even the mighty Microsoft

[Lettered]

According to this http://www.stockphototalk.com/phototalk/2007/01/bill_gates_corb.html  Microsoft does get (license? buy?) from Getty.

From the Vista EULA,

"Icons, images and sounds. While the software is running, you may use but not
share its icons, images, sounds, and media."

might there be an argument for a Vista licensee that he was merely using (displaying) the images, and not sharing (emailing to a third party for example) them?

[papageek]

Oscar - Thanks for the info. I'm looking into the DMCA now and I'll let you know what I can come up with.

Lettered - I was thinking along the same lines. The images were not being shared but simply displayed. Looking at the EULA it's pretty vague on the use of the images. I guess the legal definition of "shared" could be debated.

I've looked thru every image on my server and the images are no longer there, so the user could have removed them. The best I can tell from tearing thru the database logs and backups is that these 2 images could have only been displayed for no more than a week at the most, and even then would have only been viewed as a 64X64 pixel icon. I've just recently redesigned the site and the screen shots they sent me were recent - within the last month or so; the site was relaunched on 3/15/09 with a completely new look, fell and function.

With a user driven community site (think Facebook for car guys) what's to keep someone from creating an account, uploading some copyrighted photos, taking some screen shots and then sending out a bill for the copyright infringement (think Getty Images). I know pretty far fetched but it's entirely possible and feasible!

Another question that could be posed is does the Picscout bot/crawler have the right to steal my bandwidth by crawling the sites pages unnoticed and unsolicited? I have to pay for the bandwidth that the crawler uses to find the images after all. Could get interesting!

[Oscar Michelen]

Lettered that was interesting (as always)  - so if Microsoft bought (licensed)  the images from Getty and your use can be held to comply with the EULA, then it s not an infringement unless Microsoft is violating the terms of its license with Getty which     would make Microsoft responsible for damages That's a nice deep pocket to be able to go after

[Lettered]

another point for an "innocent infringer" defense might be the fact that these pictures are located in the following path:

C:\Users\Public\Pictures\Sample Pictures

public to me implies public domain.

[Oscar Michelen]

Good catch

[paulF]

Hi,
I am from the UK - recently received a demand for £800 for using the Vista sample image - the tree in Dorset one. Removed as soon as I got the letter , apologised as i did not know how/why i used it, but now i remember because of this blog - I was looking through my pictures where i saw the sample pictures and for some inexplicable reason used used one as a link picture on my website - -
1. Why when it says public it is copyrighted
2. Shouldn't Vista at least have warned me that this image they put on my computer was copyrighted? - they probably did somewhere.

They have now sent another letter reducing demand to £600, I replied many thanks but again have not indicated i will settle.

Am i heading for a fall or can anyone help?
Many thanks
Paul

[Oscar Michelen]

In the Uk you are better protected since the UK copyright allows for NO damages in cases of innocent infringement which I feel you can obviously prove.  You should visit the FSB forum from the UK on this issue. There is a link on our homepage. The forum moderator BeeDee has put up a very nice summary of the Getty issue in the UK which will be quite helpful to you I'm sure.

[goober]

Windows 7 RC1 also has sample images in the public documents folder although they all seem to be owned by Microsoft or Corbis. It is not clear at all to the average user that those images are in any way copyrighted unless you look at the properties for each image..and what average user does that?. There are no watermarks visible to the naked eye at all on the pictures. I would also assume as an end user of the operating system that if those images are provided by Microsoft in a public folder that I would have some rights to use the images.  

Don't understand why Getty images would be in the sample folder either since Corbis ( owed by Bill Gates) has plenty of images of their own that can be used as samples.  

If you are on XP it is very difficult to find the copyright information on sample images or the desktop wallpapers. On Vista and Windows 7 right click on the image and then properties on the context menu will give you the image copyright info you need. You still have to look for it though, it's not upfront and visible unless you are looking for it.

Here is another question. Suppose you created an avi file to help customers and in the background of the avi file is your desktop with an image ie, one of Microsoft's background images that they provide to you. The avi file is instructional to the end user and used for teaching purposes. Is that protected under the fair use policy?

[Lettered]

Regarding the fair use question.  I've read quite a bit about this, as a layman (so take it for what its worth).  I found the following site quite informative:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html  (make sure you read the one about the poster that appeared in the background of a TV series for 27 seconds).

Anyway, after all the reading I've done, as a layman, I can answer your question with the utmost confidence: "I have no idea."

[goober]

:S  I feel so confused!!!!!!!!!!!!!!!!!! LOL!