yet another copyright troll

[Robert Krausankas (BuddhaPi)]

Although I don't believe it's image related, it fairly recent and the judge is not happy, perhaps this can help us eventually as more judges become aware of these tactics and discover that it truly is a business model..

http://www.techdirt.com/articles/20110430/00274114096/judge-slams-copyright-troll-lawyer-john-steeles-latest-fishing-expedition.shtml

[SoylentGreen]

Thanks for a great post.

I'm confident that over time, laws and opinions will change in order to subvert these schemes which are essentially mass extortion.

I think that the method of collecting IP addreses has so little legal weight that the idea should have died long ago.
Even now, many providers use dynamic IP addresses.  So, a user is assigned a different IP every time he/she logs on.
Sophisticated police investigations often can gain information of value.  But, novices rarely get enough info that could consititute legal "proof" of anything.
In any case, the police don't investigate civil cases.

In addition, really hard-core people on the Internet sometimes use schemes that most others have never even heard of such as TOR:
http://en.wikipedia.org/wiki/Tor_(anonymity_network)

Ultimately, the burden of proof needed to win a settlement, and even the evidence required to start a court action in cases of alleged infringement is becoming higer and higher.

S.G.

[Katerina]

That's a great post, indeed.
So, if obviously, infringement trolls use the law for their business model and profit, how can we prove it then? We cannot just say the judge: hey please check where the most of their profit comes from - their sales and marketing activity or infringement demands.....Any ideas?
My point in all infringement stories is the following. It is not required by the law to put copyright sign or watermark, or to make it harder for users to copy the image without authorization(like right click of the mouse option). And they do not do this - that's their right, that's their choice. So, do they do anything to protect their images from infringement? And what do they do? Enforcing the fact of infringement when it happens and wanting full benefits from it? Is it fair?
For example, if I have my thing and I don't want my thing to be used by others . What do I do? I put a sign: don't use it! Right? Or put my name on it. Or remove it from public access. I do everything for protection and prevention, and not just say: "hey you used my thing, I don't care if you didn't know if it was mine, you used it so pay me!" Right?
I am not sure if what I have said is merit here. Any opinions?

[SoylentGreen]

What could ultimately 'stop' Getty, Masterfile and others from doing what they are doing are the actions organizations/people such as Riddick/Imageline and Righthaven/Stevens.
The precidents set in these cases involving Imageline, Righthaven, (and others) is what will begin to hurt the other 'copyright trolls'.
We have seen that the judges are getting wise to these business plans and lawsuits.
Who knows?  Getty, Masterfile, or another may slip up, and it could be all over for them.  Riddick pushed it too far.  Now look at him.
Anyway, people won't give in and pay so quickly as they become aware of these bad practices, and it'll become harder and harder to win settlements in court.
When copyright trolling is not as profitable, it'll sort of fade away somewhat.

In the age of the Internet, and even in print before this, there was never really anything that "protected/protects" content like images.
There's only deterrents like copyright notices and the ability to sue and attempt to collect damages.

What would be 'fair' is to try to educate people about the issues, ensure that images are protected by proper registration, and file lawsuits only as a last resort, with only fair settlements sought.
It bothers me that these companies harass and sue people over images that they don't even own and ask for 100X what the image is worth.
That is not fair.

Yes, Getty and Masterfile take the tact that if something was used, then it's like a "sale" and they must be paid.
But, these incidents can't be treated like a sale was made, an invoice was sent and payment can be expected in net 30 days.
Taking this attitude is just their way of implying that no proof is required, you can't negotiate, and you have to pay whatever they demand.
None of these is true.

The stock image business is shite right now, in my opinion.  The business is getting such a bad reputation.
Artists are getting paid less than ever before (cameras are better, cheaper and easier to use, software can make average photos look great, etc. so even kids can take great photos).
Furthermore, there's more places for stock image companies to license content from such as Flickr.
Heck, there's more free stuff than ever before.  All this has brought prices down so much that I'm sure that it would be harder than ever to make a good living in this field.

Those are just my thoughts.

S.G.

[Helpi]

"What would be 'fair' is to try to educate people about the issues"

Fair?

Everyone has a notion of what they think is "fair." And I'm not being trite. In the legal system we often throw up our hands and leave it to a jury. I don't think it's fair that Houghton Mifflin can afford to pay a giant law firm hundreds of thousands of dollars to invalidate a photographers registration on what I believe a technicality and never litigate the underlying infringement (see Muench case). In fact the entire registration system isn't "fair" if it can trip up the Copyright Office. I don't think it's fair that attorneys in Garden City charge $450/hr to litigate (and that is cheap compared to the big firms). I don't think it's fair that small content owners can't afford to police their content or that Getty and it's competitors are making all the money while the photographers get squeezed. I can go on. I'm sure you have your own list of what is fair.

No one could reasonably object to education. The government copyright office has a vastly more educational site, if you are actually interested in the law. And anyone facing a letter that is actually concerned should speak to a lawyer.

"ensure that images are protected by proper registration"

Suffice to say, you are more than 20 years behind the thinking of the entire world, which now includes the US. Registration is 100% not required for copyright protection. Some of my images I register, some I don't.  It's a sad fact that many small content owners don't register; the big boys generally protect themselves. In any event, don't bank on not getting sued if you take unregistered images. Maybe you will, maybe you won't.

The US has its own system of registration which encourages early registration in exchange for extra remedies: namely, recovering attorney fees and electing statutory damages.

Further, no copyright notice whatsoever is required for copyright protection. And prior registration is not required to seek redress under 1202 of the copyright act.

Now if Oscar would be so kind as to give you an inkling of what litigating a copyright matter actually costs your basic education will be complete.

You need to change your mindset not Getty. You don't get to use images because they are seemingly easy to take and then tell people what you will pay them anymore then if I accidentally run someone over with my car I get to dictate what is a "fair" settlement.  That's for a jury to decide, in both cases. Or if you don't change, you can deal with the consequences and you can whine you way through the deposition while your lawyer holds your hand and charges you $450/hr.

"bothers me that these companies harass and sue people over images that they don't even own "

That is part of your everyone is Righthaven fantasy. As well as your misunderstanding as to what it means to "own" a section 106 right.

"ask for 100X what the image is worth."

First of all, if the image is so worthless and there are easy substitutes then license it or use a substitute. Second, and this notion just won't get said around here because it's contrary to the schtick but statutory damages are designed, in part, to deter infringement. There most definitely is a punitive element for the jury to consider. This isn't a breach of contract claim. We do not encourage "efficient" infringement as we might with contract matters. Congress intends the recovery of attorney fees to allow for otherwise uneconomic suits to proceed and for statutory damages, in part, to discourage infringement. 

[SoylentGreen]

Thanks for your post.

I'm not taking anyone's images without paying.
I would never encourage anyone to do such a thing, either.
So, I don't need to change my mind set.

Of course, people can sue for anything at any time.
However, a plaintiff who is infringed upon won't have much hope of a worthwhile financial award without the proper registration.
Nothing much seems to happen in this world without a financial reward or at least the potential for one.

There's a problem with your statement that "Registration is 100% not required for copyright protection", I think.
Without registration, there's no record of who created what, or who owns what. If we don't have registrations, anyone at any time could say that they own something that they do not.
In addition, the actual owner could not prove his/her rights to the material.
The worst case is that all this could lead to a free-for-all of threatening demand letters and lawsuits - anyone could attack any other party claiming that a piece of content is theirs. Even worse than it is now.
Most works are considered "copyright of the creator" at the moment of "creation".
I call this concept "phantom copyright"; it doesn't have much substance, and many people don't believe in it.  Ok, I'm making an attempt at humor here.  But, you heard the term here first, I think.
But, seriously, this concept doesn't have much traction in the legal system wherein people want to get monetary settlements.
That's all that people care about in this issue; the money.  

I highly doubt that Oscar has the time to defend your point of view, even if he agrees with you.
I can't speak for Oscar, but I doubt that he's interested in admonishing people whom you disagree with in this forum.

Yes, attorneys are expensive.  Expensive for both sides of a litigation.
The only good thing about the expense is that it tends to keep frivolous cases out of the court system to some extent.

Certainly, images aren't worthless.  But, the amounts demanded often far exceed the actual damages caused by an infringement.
There's so much competition in the Stock Image market these days.  It's brought prices way down.
But, the likes of Getty and Masterfile shouldn't try to make up for the monetary shortfall in the manner that they are doing.

The general direction of your post seems to be that you feel that you (and other artists/photogs) should not be burdened with registering. But, you expect the benefits that registration provides nonetheless.
Registering is certainly a burden, a pain even.  But, it's the best system that we have. But, registration isn't mandatory.  So, if you don't want to, then don't.
But, you'd give up a lot of future legal recourse in the event of a copyright dispute by doing so.

I see a similarity between Getty and Righthaven in that they both send demand letters seeking redress over content owned by another party.
If you can provide evidence to the contrary, please post it.

S.G.

[Helpi]

"So, I don't need to change my mind set."

>>". You don't get to use images because they are seemingly easy to take and then tell people what you will pay them anymore then if I accidentally run someone over with my car I get to dictate what is a "fair" settlement."

Yes, even if you think you have an "innocent infringer" winner, which by the way is not a defense to infringement it merely permits the Jury to consider awarding a lower dollar amount in damages (lowers the floor from $750 down to $200). Copyright Infringement is STRICT LIABILITY. It doesn't matter one bit if you knew or not. That goes only to damages. And, as I said, you don't get to decide the damages, What is fair. What is not. That is for the court to decide.

"However, a plaintiff who is infringed upon won't have much hope of a worthwhile financial award without the proper registration."

That entirely depends. And you assume that people are always rational actors. They are not.

"Nothing much seems to happen in this world without a financial reward or at least the potential for one."

You've obviously never had a crazy client. Or a client that wants to make a point. And are unaware of certain companies that will always protect their IP aggressively because that's the rep they want in the legal and business community.

"There's a problem with your statement that "Registration is 100% not required for copyright protection", I think."

No, there isn't.

Registration, while creating a public record is only prima facie evidence of ownership (and only then if your register within 5 years of creation).  I would think it is obvious but I guess not that registration is not some definitive record as far as ownership. The facts surrounding creation of a work determine ownership not what the registration certificate reads.  You could scrape my image and register it, either because I didn't or simply beat me to the copyright office. So what. I can easily rebut the presumption in court. I have the original high rez file, I can demonstrate where I was that day. People can testify it's mine. Whatever. Point is, who gives a sh%t what the registration says. Not a court. At least not when I bring forth evidence to rebut your claim of ownership.  A timely registration has a very light presumption of ownership. Once I rebut it you can explain away your perjury. Incidentally, what is this (somewhat idiotic) online notion that everyone goes around committing perjury. You realize lawyers have this weapon called discovery and we live in a world where it's tough to move around without a record. You can explain how it came to be that you took my photo of say, the beach at Coney Island, when you live in Wisconsin and were at work that day. Nothing the court loves more than being lied to.

"I call this concept "phantom copyright"; it doesn't have much substance, and many people don't believe in it.  Ok, I'm making an attempt at humor here.  But, you heard the term here first, I think."

Sorry to be impolite but that is because you don't know the first f$ucking thing about copyright or law for that matter. And the only reason we are having this discussion is because we are online.

"But, seriously, this concept doesn't have much traction in the legal system wherein people want to get monetary settlements."

But seriously I've read your posts and you don't know diddly about law, lawyers or the legal system.

"I can't speak for Oscar, but I doubt that he's interested in admonishing people whom you disagree with in this forum."

That was a non-sequitor.

"But, the amounts demanded often far exceed the actual damages caused by an infringement."

You mean like every complaint I've ever read ?  The difference with copyright infringement is at least it's consistent with the notion of stat damages. They are not intended to equal "actual damages." In fact, another purpose of stat damages is to account for the fact that actual are often difficult to determine.

"But, the likes of Getty and Masterfile shouldn't try to make up for the monetary shortfall in the manner that they are doing."

I'm not actually familiar with Masterfile. My understanding of Getty is mostly informed by this board. Why shouldn't Getty in general (not with respect to any particular claim)?  Despite your belief, the photographer often gives up to Getty the right to sue. If Getty doesn't act then people get away with infringement. The Getty net seems to be broad and, yes, some fish that should not get caught up may but as Matt acknowledges infringement is rampant.

"The general direction of your post seems to be that you feel that you (and other artists/photogs) should not be burdened with registering."

My feeling is the registration system favors the large content creators and often screws the little guy. I have other issues with it as well but not relevant here.

"I see a similarity between Getty and Righthaven in that they both send demand letters seeking redress over content owned by another party."

You really don't understand copyright or licensing. I know Oscar does but his schtick doesn't allow him to weigh in. Let me try another tack. Do you think say Sony Pictures Corp would be as interested in licensing your book to make a $100 million dollar movie if they had to worry that in the event someone infringed on the rights they licensed they would have to track you down in Fuji so that you could enforce their rights ? If this seems not to make sense to you then go read some history of the development of the copyright law between 1909 and 1976. And then get through your head the idea of copyright "divisability" and forever lose the notion that Getty can't be the "owner" for purposes of the copyright act because they aren't the copyright author and the author didn't sell them the copyright. Since you're all interested in education and all. Your education will be my evidence.

Oscar, you're supposed to be an adjunct prof or something at NY Law. Why don't you educate people then. This guy has posted N times and been responded to maybe 1/2N that Getty can't sue because Getty isn't "the owner" the photographer is. Or do you wait until your retained before you disabuse this notion.

[Robert Krausankas (BuddhaPi)]

All I know, besides that I know besides knowing hardly anything concerning copyright law is this.

1. I legally purchased some templates/ images over 12 years ago
2. GI sent me a "claim" letter so I owe them nothing, nada, zilch
3. I know the burden of proof is with Getty, but I was kind enough to provide them with the license for said image.
3. GI did not like the license I sent them , then asked for a reciept, which  I don't have as it was so long ago
4. I'm sure as hell not paying this amount for an image that is 49.00 to licence thru them. Regardless of what it cost to track me down, and regardless of the amount GI claims to have "lost", as they 've already made that back plus more, from people who freak, don't get educated and write them a check!

Perhaps if they change the way they go about "collecting" this would not be such a huge issue in the first place.

[SoylentGreen]

Thanks for your post, buddhapi.
You made some great points.

I never thought that this Helpi character was an attorney.
He used that to try raise his stature to that of Oscar.
So, he's basically a write-off.  You can't believe anything he says.

I can't even be bothered to read his posts anymore.
So, here's how much I care:



S.G.

[Oscar Michelen]

Well if nothing else, this forum certainly produces interesting and healthy dialogue about copyright and the law. As in most cases, both sides of this issue are correct on certain points.  Registration is not necessary to raise an infringement claim, but you do have to register once you intend to file a lawsuit. If the work is registered at the time of  the infringement, registration allows the rights holder (it can be the actual artist or anyone that the artist has assigned his rights to) to get statutory damages and attorneys fees as opposed to just "actual damages." Most courts however take into account what the actual damages were in assessing the level of statutory fees to award, so the two concepts are not entirely separate.  Innocent infringement allows courts to reduce statutory damages down to $200 per infringement so Helpi is correct that it is only a defense to damages as copyright is a strict liability crime. All along, our position on this forum has always been that Getty is asking for too much money and doing so in a way that intimidates people into thinking that courts will actually award these large sums when that is highly unlikely.

And that is the point of SG and buddhapi Helpi.  Just because you may have a valid claim does not mean that you should be allowed to exaggerate your damages and burden the court with minimal matters.  And yes taking someone's copyrighted material is infringement and is wrong, but should litigation be started over one digital image? Especially when the person did not know it was copyrighted? Or when the person actually paid a third party who acquired the image? I think Getty will get a similar reception in Federal Court as Mr. Steele did if they file mass lawsuits over these claims. Lets say I hit another car in the rear while I am driving. The accident is 100% my fault.  Now I get a letter from the driver that he wants $1,100 to fix his bumper when it only caused $100 in damages.  When I call him, to offer the $100 and apologize, if he says, alright give me $400 and I wont sue, is that right? I may pay $300 or so to avoid going to court to prove I only owe $100. So i end up getting "extorted" to pay 3x the value.  Thats what these companies are essentially doing. They have no valid basis for requesting these exorbitant sums and are looking ot get people to settle for a number below their request but still above what the actual damages are.       

Do you think its a coincidence that Getty has not sued some major corporation over this claim.  Is it only small companies that infringe? Unlikely.  More likely is that they worry that a well-heeled client may make an issue out of it and force them to litigate their position which may not withstand scrutiny in Federal Court.Thats what happened to Riddick when he picked on Bernina for example.  Litigating a copyright matter can be a very expensive proposition. My firm will not get involved for less than a $5,000 retainer because it is a time consuming proposition. Even if it is resolved at the early stage, fees could get to $15,000 or more relatively quickly, especially if the other side has money and wants to make you spend money.   

All of these troll issues, however, are helping people who have Getty/Masterfile claims.  I think the Federal Courts, thanks to Steele, Riddick and Righthaven are very on to these types of claims and are looking to reward rights holders for bringing litigation that could have been avoided by a cease and desist letter and a nominal settlement. In fact, all of those three plaintiffs got spanked because they went directly to lawsuit and did not follow the digital image industry model which  is write many letters, but sue very sparingly.