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Author Topic: Letter from Lynn Burke, Sanders Law  (Read 3866 times)

needingdirection

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Letter from Lynn Burke, Sanders Law
« on: January 19, 2018, 05:19:04 PM »
I am an independent contractor with a brokerage in California. We received an email from Lynn Burke of Sanders Law, to our general company email regarding a picture I used in a blog post back in April 2017. I am always very careful to purchase pictures or use ones offered for free. This one was offered for free. I did not know or understand the "attribution" clause, that i recently read on their site. The "client" of Sanders Law is RM media (have seen them mentioned in your conversations). I was ignorant and made the mistake of emailing them, not fully understanding the concept of trolling. They responded and asked for $2,200 in damages by today and claimed "commercial use" of the free picture costs $259.00. Not sure what the definition is of commercial use. My actions have been: I first added the attribute and then a few days later just deleted the picture from the blog post. My question is what is the reality that they will file a lawsuit against me? and possibly my broker? What, if any should my next response be? I am assuming since I didn't comply with their deadline and assumption that I am in the wrong I will be hearing from them again. Any help or direction is greatly appreciated. Thank you

Matthew Chan

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Re: Letter from Lynn Burke, Sanders Law
« Reply #1 on: January 20, 2018, 10:36:54 AM »
I find your post interesting regarding the fact that you received a letter from Sanders Law on behalf of RM Media Ltd. (aka Nick Youngson), owner of his gotcha, honeypot websites.

It tells me he is spreading his butter between at least two operations: Higbee and Sanders Law.

Regarding the lawsuit situation, most cases have no lawsuits. And the very few that do end up in settlements. They rarely go all the way.

In the case of RM Media Ltd. there was one recent lawsuit but it was unusual because it was directed a a marijuana company that appeared to NOT have removed the image which triggered a willful infringement accusation. I also suspect that it was a strategic move by Higbee to get a case on record so it would stop people like me from telling the world that "Nick Youngson/RM Media Lt. has never files lawsuits."

Incidentally, that lawsuit settled quickly and quietly.

Now let me give you some bad news, I do think there is a higher risk of negative consequence for letter victims based in California with a traditional brick-and-mortar business.  I consider many real estate brokerages to fall into that higher-risk category.

People don't like to hear this but sometimes you SHOULD negotiate a settlement. There are a variety of reasons beyond the possibility of a lawsuit. Many people cannot cope with the stress and uncertainty. Victims want to have it both ways but they can't. They want to eliminate the uncertainty and possibility of a lawsuit but also NOT pay. That is nearly impossible.

Then I hear from people that they are willing to pay a few hundred dollars to settle the matter. While it is certainly possible because to settle a Higbee claim for as little as $300, it is very unusual and requires the victim to fight very hard to convince them to go down that low. (I know people are going to zero in on what I just said and MISINTERPRET that "Higbee claims can be settled for $300". It is RARE, HARD FOUGHT and a lot of circumstantial information has to be disclosed. It is the rare person who is able to have the emotional stamina and determination to navigate this.  Not because it is "difficult" but simply because many folks don't really understand the subtleties and factors that go into taking the wind out of pursuing larger amounts.  There are many variables that enter the equation. And yes, it does require you (or someone representing you) to actually communicate with them to negotiate and settle the matter.

You will be hearing from them and if you are a real estate brokerage firm in California, they will be especially persistent and interested in pursuing your case.

I am an independent contractor with a brokerage in California. We received an email from Lynn Burke of Sanders Law, to our general company email regarding a picture I used in a blog post back in April 2017. I am always very careful to purchase pictures or use ones offered for free. This one was offered for free. I did not know or understand the "attribution" clause, that i recently read on their site. The "client" of Sanders Law is RM media (have seen them mentioned in your conversations). I was ignorant and made the mistake of emailing them, not fully understanding the concept of trolling. They responded and asked for $2,200 in damages by today and claimed "commercial use" of the free picture costs $259.00. Not sure what the definition is of commercial use. My actions have been: I first added the attribute and then a few days later just deleted the picture from the blog post. My question is what is the reality that they will file a lawsuit against me? and possibly my broker? What, if any should my next response be? I am assuming since I didn't comply with their deadline and assumption that I am in the wrong I will be hearing from them again. Any help or direction is greatly appreciated. Thank you
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

carigennarelli

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Re: Letter from Lynn Burke, Sanders Law
« Reply #2 on: January 20, 2018, 05:03:26 PM »
Thank you so much for the information. I am to not the broker. I am an independent contractor/realtor under the broker. The blog (my blog post) was posted on the broker website. I am fine paying a usage fee for the time the blog was posted with the picture. I have deleted the photo from the blog post and would have on day 1 if they had alerted me then. Doesn't seem right or legal to ask me to pay them "damages" for the time between the post date and now when they decide to monitor it. Any advise on how to word a response to minimize the amount I have to pay them to make them go away?

kingkendall

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Re: Letter from Lynn Burke, Sanders Law
« Reply #3 on: January 20, 2018, 10:06:29 PM »
If you're going to go the negotiation route I'd give them a once time take or leave it offer of what you think that image is worth.  They're going to reject any offer you make that isn't $2,500.  Then it becomes a matter for your stomach.  Showing vulnerability is the worst possible thing you can do. 

fed up

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Re: Letter from Lynn Burke, Sanders Law
« Reply #4 on: May 17, 2018, 06:20:20 PM »
I also got a letter from Lynn Burke a while back. How has your situation developed? If they were to take us to court, would it be superior or small claims. I am in California too, so curious if another law firm takes over at some point?  I would love to take this to small claims. I don't mind paying more for a precedent ruling compared to giving these extortionists more fuel. I don't want a big, lawyer to lawyer fight over what should be a $10 image though.

I don't see how Google has no responsibility here. Sure, we know now we need to understand all this copyright mumbo jumbo, but they trap you into a buffet of images that are filtered as free to use and this is on picserver.net and google image search. Free to use should be free to use.

In any case, just curious if you had any developments. I would rather pay a lawyer $2k and get a ruling than pay these extortionists, but they are effective at instilling fear into normal, busy people.

Ethan Seven

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Re: Letter from Lynn Burke, Sanders Law
« Reply #5 on: May 17, 2018, 11:42:00 PM »
If they litigated, it would probably be in federal court   However, since California has a cause of action that sounds in copyright, it is possible, though very unlikely, they could file in superior or small claims court.  It is also possible that they could bring a state law case under another tort theory, but this too is unlikely.   

Small claims court in CA has a $10,000 limit on damages.  Lawyers are also not allowed to represent individuals in CA Small claims court.

It is very, very rare a copyright owner opts to file a state law in small claims court.  I read somewhere on this forum about some plaintiff doing it somewhere in New England.   That plaintiff had images that were made available on an expensive subscription service, which may make state law claims more viable.

However, it would be very surprising to see someone choose a state law when they have the option to use federal law, which is very pro-copyright holder, especially in the 9th circuit, which includes California.  The courts in the 9th are generous with awards of damages and frequently provide awards of attorneys fees.   

I appreciate your commitment to fighting, but if you are paying an attorney and hope to get to a meaningful ruling , it will most likely cost you north of $10,000.  $2,000 might allow you to get a decent answer filed, but that is no where close to a substantive ruling.   A substantive ruling will not be possible until after a few hearings and most likely, significant discovery. 

If you involve Google, you can bet the any defense attorney willl want at least a $25,000 retainer and will tell you to plan to spend a minimum of 250,000.  Google fights hard and their attorneys are good.

If you were considering seeking declaratory relief from a federal copyright claim, which is almost always a bad idea unless you are facing the threat of an injunction or some other odd fact, you would have to do it in federal court.
« Last Edit: May 18, 2018, 12:09:29 AM by Ethan Seven »
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

kingkendall

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Re: Letter from Lynn Burke, Sanders Law
« Reply #6 on: May 18, 2018, 11:06:00 AM »
Copyright cases can only be handled in Federal court-period! 

fed up

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Re: Letter from Lynn Burke, Sanders Law
« Reply #7 on: May 18, 2018, 11:36:34 AM »
So a friend who has copyright attorneys on retainer tells me to not give them a dime, period! He says copyright infringement cases need to prove damages and willful infringement to gain real claims and says no court will want to hear a case with main page verbage claiming the license that non-legal experts do not know permits the free use for commercial uses and ability to change. Like many on here, he said take a picture of their site and have your evidence in case they do not care about losing money.

If they sue which is very, very rare, can it be fought with filing without going to court? I mean most of these cases should involve about an hour for each side to present for a ruling with some prep. time of course. I just don't get how a judge is going to let a $10 image take away real court time especially when the filing can show how simple the case is for most instances of course.

fed up

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Re: Letter from Lynn Burke, Sanders Law
« Reply #8 on: May 18, 2018, 11:43:36 AM »
main body of front page of picserver.org. Why would anyone search for more clarity when this paragraph purely states that the ......... license (only specialized people would know what this license is) permits the free use of the images for any purpose......... Anotherwords, this paragraph is purely stating that this specific license permits the free use. If that is not predatory, I don't know what is! It defines and describes the license in the paragraph and apparently this license has terms not defined and instead ignored completely except for hard to find areas on page.

The images on this site are licensed by RM Media Ltd under a Creative Commons Attribution-ShareAlike license which permits the free use of the images for any purpose including commercial use and also permits the images to be altered - please view license details under each image.

The images are arranged in alphabetical order so just click on a letter below.


1-9 A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Robert Krausankas (BuddhaPi)

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Re: Letter from Lynn Burke, Sanders Law
« Reply #9 on: May 18, 2018, 12:25:30 PM »


The images on this site are licensed by RM Media Ltd under a Creative Commons Attribution-ShareAlike license which permits the free use of the images for any purpose including commercial use and also permits the images to be altered - please view license details under each image.



you need to read and understand the terms, yes the images are "free" to use, providing you abide by the terms set forth...RM Medias terms state, you must show attribution and link back, if you don't, you are not following the terms, and now on the hook for infringement...when are people going to realize NOTHING in this world is free... RM counts on people not reading and or understanding the "terms", that how he snares his victims, nothing "illegal" about it, just morally and ethically wrong, guys a douche bag.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

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Re: Letter from Lynn Burke, Sanders Law
« Reply #10 on: May 18, 2018, 12:53:00 PM »
So a friend who has copyright attorneys on retainer tells me to not give them a dime, period! He says copyright infringement cases need to prove damages and willful infringement to gain real claims and says no court will want to hear a case with main page verbage claiming the license that non-legal experts do not know permits the free use for commercial uses and ability to change. Like many on here, he said take a picture of their site and have your evidence in case they do not care about losing money.

It appears that your friend is incorrect. The way the copyright law is written, they do not need to prove willfulness to be awarded statutory damages. The copyright statute allows for statutory damages between $750 and $30,000 for non-wilful infringement. If they do prove willfulness (highly unlikely) then the damage award can increase to $150,000. They don't need to prove actual damages to get a statutory award. I am not saying you should just automatically pay whatever amount they are asking for, but the information you were provided does not seem to be accurate the way you described it.

The images on this site are licensed by RM Media Ltd under a Creative Commons Attribution-ShareAlike license which permits the free use of the images for any purpose including commercial use and also permits the images to be altered

I have dealt with RM Media before. While you are correct that RM Media supposedly allows the photo to be used for free, the Creative Commons Attribution-ShareAlike license requires that the photo be used with attribution. So, according to them, if you use the photo but don't attribute it according to the terms on the RM Media website, then they claim that you don't have a license because you didn't follow the licensing terms. When I dealt with them they used a Creative Commons Attribution-ShareAlike 3.0 license. You can look at the terms of that license here:

https://creativecommons.org/licenses/by-sa/3.0/us/

« Last Edit: May 18, 2018, 06:37:46 PM by A Lawyer »

Ethan Seven

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Re: Letter from Lynn Burke, Sanders Law
« Reply #11 on: May 18, 2018, 01:35:58 PM »
Copyright cases can only be handled in Federal court-period!

Well, the United States Supreme Court and multiple federal district courts disagrees with you, but hey, what do they know?  ;)

See some fairly recent cases:  Maxient, LLC v. Simplicity Corp., 2014 WL 5422195 and Dent v. Renaissance Mktg. Corp., 2014 WL 545006.

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Disclaimer:  I maybe be a lawyer, but I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can take the time to properly review the facts of your case. If you cannot afford one, call your county or state bar association and ask for a list of free or discounted legal resources. 
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

Ethan Seven

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Re: Letter from Lynn Burke, Sanders Law
« Reply #12 on: May 18, 2018, 01:53:06 PM »
Robert Krausankas (BuddhaPi) is absolutely correct.   As is with most contracts, the devil is in the details.  RM Media does make it clear that even their “free” images are subject to terms of a license. 

A judge may believe that a very unsophisticated person did genuinely believe that the images were free and was therefore an innocent infringer, but even so, the minimum a judge could award is $200 in statutory damages per infringement. 

If you could convince the judge that RM Media was abusing copyright law, you might be able to get the judge to not award them attorneys fees or costs.   If you fail to prove that, you could be stuck with paying court costs and attorneys fees.

If you do not have money or assets, you can ignore them and hope they don’t sue you.   My guess is that they will not sue you if they see you do not have assets or any prospect of soon acquiring them.
« Last Edit: May 18, 2018, 01:56:08 PM by Ethan Seven »
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

Ethan Seven

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Re: Letter from Lynn Burke, Sanders Law
« Reply #13 on: May 18, 2018, 02:10:41 PM »
So a friend who has copyright attorneys on retainer tells me to not give them a dime, period! He says copyright infringement cases need to prove damages and willful infringement...

This is a real good example of why you do not want to take second-hand legal advice.  What you say your friend said is wrong.   There is never a need to prove willful infringement, even innocent infringers can be found liable under copyright law.   Damages only need to be proved if the copyright holder is seeking relief under 17 U.S. 504(b). 

Fighting these cases does not take 1 or 2 hours.   That would be awesome.  Unfortunately, if you are sued, fighting it requires you or a lawyer who represents you appearing in court, probably multiple times.  Most defendants settle these claims very fast because it is usually much cheaper to pay a couple thousand dollars and eliminate the risk than it is to fight it and still face the risk of losing, and then possibly having to pay the copyright owner’s legal bills.  That is why about 98% of these cases settle within the first 3 months of the litigation.    US Copyrght law is very pro-copyright owner.  These plaintiff’s know it and it emboldens them. 

You always have the option to not fight it and accept a default judgment.  However, if you have assets or income, you probably don’t want a judgment against you.   
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

fed up

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Re: Letter from Lynn Burke, Sanders Law
« Reply #14 on: May 19, 2018, 11:58:29 AM »
Can you file a defense for a default judgement? Most judges have common sense and most lawyers can show  evidence of the predatory practice of these websites in one or two pages. If so, would that ruling of a default judgement be filed for others to use as precedence? Could be risky, but could also help put something on the books and potentially force this practice to stop. Another question is could someone just bring in a letter of defense from an attorney asking for personal damages in case the judge rules it's predatory and damaging to the people caught up in it. We have a forum of people here under duress only, because of the practice of this deception and there does not appear to be any stop or change to the paragraph on the webpage?? It appears that the practice is profitable for the company. I don't think any judge wants their name attached to a ruling that allows this unethical deception, but I know nothing.

Now, if the defendant has multiple images and does not take them down, I can see willful infringement and damages. Also somehow Google labels the images free to use commercially as well which means even Google does not understand the terms. Everyone I talk to about this cannot understand how this is legal. I guess it is legal, but it is downright disgusting extortion. It has just never gone to trial. It's cheap enough to pay to go away. Also, I notice lawyers making money on both sides of this, so why would anyone in copyright law want this practice to go away? I am going to meet with the copyright atty., because my friend and him claim that there are blogs and designed predatory advice from this media co. Hard to trust anyone, but those you know on this issue.

I would warn everyone not to just believe lawyers in here or elsewhere on the net regarding this issue. Talk to someone you know and who practices copyright law for a living. It will not be easy for them to get these cases to court especially if more than one with minimal statutory damages as so many were fooled by the language on the website that has never changed while who knows how much money has been extorted from these victims? I can see why it is case by case and everyone has to have their own plan for their own tolerance and wealth situation.

 

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