Click Official ELI Links
Get Help With Your Extortion Letter | ELI Phone Support | ELI Legal Representation Program
Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters.

Author Topic: Sample replies? Best course of action to take?  (Read 14910 times)

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Sample replies? Best course of action to take?
« on: September 11, 2014, 04:32:58 PM »

So, newbie here, I've looked around the site for a while but hoping this merits something relatively new. If duplicative, I appologize:

I've gotten one of these letters, very standard, they want $1400 for "licensing".  This is not Getty, it's some random photographer I won't name working through a law firm we'll called "Firm X".  One of my writers got the image from god knows where, probably google.

Anyway, I immediately deleted the photo in question and apologized rather politely to them telling them the following:

"Hi guys, sorry about the delay, we removed the image in question as you requested. I have no idea where that image came from, and we have no interest in infringing on anyone's copyright.  Rest assured we follow very strict guidelines with our writers about using only images that fall under creative commons license and are free to use. As you know, the internet is crawling with millions of badly or mis-labled images and I can only assume that that the writer in question made use of the image in error.  It was removed immediately following your first letter.   We do not have any need to license anything."

To which, naturally, they tell me their client would still like to be compensated and they're happy to set up a payment plan for me (how nice!), and that litigation will begin in 90 days.

Anyway... question one is - should I respond immediately?

This is the response I'm considering, curious what you folks think. I am also thinking about cc'ing the client directly, though that might be obnoxious :-)

PROPOSED RESPONSE:

Dear Firm X - thanks for getting back to me.  I understand your client's concern, but I'm sure he's also saavy enough to know that images do get mislabeled on the internet from time to time, especially images as old as the one he's referring to. Our author got this image from a very old creative commons search and, assuming it was indeed your client's image, then that search result was obviously in error.   On the extremely rare occasions when this has been brought to our attention, we immediately remove the image as we have no interest in running commercial imagery. It is not in our business model to profit off anyone's images nor have we profited in any way from the apparent use of the image in question.  We do not think it's ethical to pursue compensation for something that we didn't even know we had done and I suspect your client would not be pleased to find out he is paying for what essentially amounts to an extortion racket on your part.   Civilized people understand this and I expect you do as well.

We have never had any relationship with your client, commercial or otherwise, nor do we wish to. Please inform him that we have no reason to license his image but thank him for the offer.
++++
Well? Am I just poking a bees nest?  What are the odds these fuckers actually pursue litigation?

THANK YOU!!!

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2764
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Sample replies? Best course of action to take?
« Reply #1 on: September 11, 2014, 04:39:52 PM »
IF you don't reveal the extortionist, we won't be able to tell you what they will or won't do.

Or you can go check for yourself at dockets.justia.com. It goes back 7 years or so.
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.

stinger

  • Hero Member
  • *****
  • Posts: 766
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #2 on: September 11, 2014, 05:14:18 PM »
Does sound a lot like bee's nest poking to me.

What Matthew says makes sense to me.  Not all extortionists are alike.  You have to know who you are dealing with.  Also good to know if the image is registered.  That can give you an idea of how much they might try to go after in a suit.
« Last Edit: September 11, 2014, 05:16:34 PM by stinger »

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #3 on: September 11, 2014, 05:41:05 PM »
Thanks guys.  I'm just worried that they'll go googling around and discover this forum and somehow use it against me.  I'm probably just being paranoid, but before I reveal them, is there any good reason not to?

EDIT - using that search tool pulls up no results for the photographer's name nor his company.  Maybe that's good news?
« Last Edit: September 11, 2014, 05:47:58 PM by The-Gobbler »

Greg Troy (KeepFighting)

  • ELI Defense Team Member
  • Administrator
  • Hero Member
  • *****
  • Posts: 1859
    • View Profile
    • Yeah, We Do That.
Re: Sample replies? Best course of action to take?
« Reply #4 on: September 11, 2014, 09:41:15 PM »
As Matthew said, without knowing who you are dealing with it is very hard to tell you anything.

This forum is read by several of the copyright trolls.

All I can suggest if you do not wish to provide any information is to read through the forum, most answers can be found there.
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #5 on: September 11, 2014, 10:17:31 PM »


Well, I'll gamble then.  The photographer is Jason Langley  from "Reciprocity Images"
The lawfirm is "Higbee Associates"

I can't remember exactly what the image was - a very generic landscape with mountains.  There's no way it was taken from his site, most likely it was taken from some other site that may or may not even exist any more. 

Robert Krausankas (BuddhaPi)

  • ELI Defense Team Member
  • Administrator
  • Hero Member
  • *****
  • Posts: 3354
    • View Profile
    • ExtortionLetterInfo
Re: Sample replies? Best course of action to take?
« Reply #6 on: September 12, 2014, 10:24:14 AM »
search the copyright office database, see if the image is registered, if not they have 3 months from the date of the letter to properly register it, lest they will never collect very much IF they file a suit against you.. Also look to see what this images usually sells for, is that price inline to what they are demanding? I don't think I would respond the way you are thinking, browse the forum, there are some good examples of ways to respond, that will not put you in a bad light, but will make them think twice about following through.
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

I have a few friends around here..

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #7 on: September 12, 2014, 12:54:46 PM »
Interesting, thanks!  There's no question this alleged image is correctly copyrighted, they sent me all kinds of crap proving it.  Now, given that it's a fairly generic looking image of mountains I've seen photographed 100 times I find their proof that it's actually a match to be potentially dubious. Furthermore, the only proof they have is a screenshot of my site which isn't exactly proof of anything since a screenshot is easily faked.... 

I've replied honestly, explaining that I have no idea where the image came from, that even though there really isn't any proof of their claim I've removed it in good faith.

I guess my next question is ... what happens if they actually do sue me?  Should I drop the $200 for a letter from you guys? I mean, I'd much rather pay you than settle with these clowns but if shit hits the fan, then what?


« Last Edit: September 12, 2014, 04:53:25 PM by The-Gobbler »

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2764
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Sample replies? Best course of action to take?
« Reply #8 on: September 13, 2014, 07:26:17 PM »
If you get a lawsuit filed against you, Oscar Michelen's Defense Letter Program is no longer applicable. If you are risk averse and don't like the idea of the potential exposure, the time to do is BEFORE a lawsuit is filed.

As I have said repeatedly, with some notable exceptions, the chance of a lawsuit is low. However, there are people who still aren't comfortable with that "low" chance in which case, spending the money might be worthwhile.

I guess my next question is ... what happens if they actually do sue me?  Should I drop the $200 for a letter from you guys? I mean, I'd much rather pay you than settle with these clowns but if shit hits the fan, then what?
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.

lucia

  • Hero Member
  • *****
  • Posts: 767
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #9 on: September 13, 2014, 11:33:37 PM »
The-Gobbler,
Removing the image was wise. That's a good first step whether or not you infringed.  As for how likely this guy is to pursue litigation: I have no idea. I haven't heard any history of this particular copyright owner. So it's hard to guess.
Interesting, thanks!  There's no question this alleged image is correctly copyrighted, they sent me all kinds of crap proving it.  Now, given that it's a fairly generic looking image of mountains I've seen photographed 100 times I find their proof that it's actually a match to be potentially dubious. Furthermore, the only proof they have is a screenshot of my site which isn't exactly proof of anything since a screenshot is easily faked.... 

I've replied honestly, explaining that I have no idea where the image came from, that even though there really isn't any proof of their claim I've removed it in good faith.

I guess my next question is ... what happens if they actually do sue me?  Should I drop the $200 for a letter from you guys? I mean, I'd much rather pay you than settle with these clowns but if shit hits the fan, then what?
First, that depends: I can't tell from your letter if your server was hosting the image or if it was hotlinked form another server. This is very important. Do you know?   

I'd write other things-- but actually, right now based on what you wrote,  unless you hotlinked, you seem to be in a somewhat perilous position. It seems this image is registered, the photographer is a professional photographer, he is pursuing you on his own dime and he's already got a legal counsel. Chances that he sue you?  I haven't heard of this guy -- so it's hard to guess.  My guess is the chance he'll sue is much higher than Getty Images suing you.  If he does, the question them becomes could he win? And how much could he win? Well, it sounds like there's a lot not revealed in your post-- that said, there is enough to suggest the copyright owner could win at least $200-- the statutory minimum. After all the image is registered. It's a better bet to assume he could win at least $750-- especially if you can't prove your infringement is 'innocent'.  Other factors:  Are you a business?  How was the image used and so on?  Do you have evidence the images was listed on a creative commons site... and so on?  Did the copyright owner put the image on the creative commons site?  And so on. 

On the other hand: if you hotlinked, you would be free and clear. So... did you host this image on a server you own or whose content you control? Or was it hotlinked from someone else's server? 

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #10 on: September 14, 2014, 01:06:07 AM »
Thanks guys.  Does the $195 letter writing program count if it's not Getty?

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #11 on: September 14, 2014, 01:19:45 AM »
Lucia, thanks.  Yes, it was hosted on our server. Who actually hot links anymore? I don't have a clue where it came from, so no evidence as to the source.

Yes, we're a business. We're a blog with several dozen authors who come and go. The image was (allegedly) used in a blog post about 6 years ago. Hasn't seen the light of day since, until their robot apparently found it.  Despite the fact that we're really strict about picking only public domain images, occasional mistakes happen. With over 15,000 articles written in 10 years, it's hard not to!

However, in 10 years we've only had a complaint one other time. Someone complained (no lawyers involved), I apologized and took it down.  That's how civilized people settle these things! 

Robert Krausankas (BuddhaPi)

  • ELI Defense Team Member
  • Administrator
  • Hero Member
  • *****
  • Posts: 3354
    • View Profile
    • ExtortionLetterInfo
Re: Sample replies? Best course of action to take?
« Reply #12 on: September 14, 2014, 06:55:39 AM »
First, you're a fool if you take "all the crap proving it" at face value.. I can easily send you the title for the golden gate bridge stating I own it, would you believe that?... I didn't think so. Heed my advise, go search the registration database for yourself..

I won't get ito the hotlinking question...simple answer is loads of people do, it, hell every sigle image in google image search is hotlinked.

If you are a business with guest writers, you need to spend some business cash on getting a registered agent, if you had done so before hand, you would not be finding yourself in this situation.

You can search Pacer.gov for lawsuits filed by this artist, this will give you an indication if he is likely to sue..also look at the law firm, are they an IP lawfrm, or just a bunch of ambulance chasers?? also could be a clue.
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

I have a few friends around here..

lucia

  • Hero Member
  • *****
  • Posts: 767
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #13 on: September 14, 2014, 10:54:52 AM »
Lucia, thanks.  Yes, it was hosted on our server. Who actually hot links anymore? 
Prudent people who know copying can be a copyright violation and hotlinking isn't? Google on it's image search pages? People using Zemanta plugins People inserting ads from services like Adsense?  People who run Amazon ads-- using the tool Amazon provides them? Most of Pinterest 'repinners'. (The original pinner doesn't hotlink, but the rest do.)  People who run forums and want to let those discussing insert images?

You seem to be asking a rhetorical question that suggests people don't hotlink or shouldn't hotlink. But lots of hotlinking still goes on,  it's likely to always go on and it's often wise to hotlink.

For what it's worth, I hotlink. It's often wiser.  I don't know why someone wouldn't hotlink.  There is absolutely nothing wrong with hotlinking; if the web administrator wants to prevent hotlinking, they have .htaccess at their fingertips and they almost certainly will use it.

Quote
I don't have a clue where it came from, so no evidence as to the source.
The fact that you don't have a clue where it came from, and this was posted in what appears to be business context for you means the judge might not find you unable to prove your infringement is 'innocent' in the sense the court sees that. The images is registered. If he sues, the statutory minimum is something like $750.   In contrast if you did have a clue and had records that this thing was represented as coming from a site that claimed it had a CC license, but the CC license was merely invalid, you might be looking at $200-- as you would have something evidence to prove your infringement was innocent.   (There are other things you might be able to bring forward as proof -- if you had them-- but "I have no clue how it got there", isn't evidence of unwilful infringement.")

Yes, we're a business. We're a blog with several dozen authors who come and go.
If you have something like a multi-author set up where others not under your control might insert unlicensed copyrighted material, you should register DMCA agent. It's too late for your current predicament, but it would be wise to consider for the future.

The DMCA registration won't help you if you post the material yourself and it might not help you if a person who is working for hire does it-- but it would help if you are doing something more similar to offering a blogging platform to others who are not under your control.

The image was (allegedly) used in a blog post about 6 years ago. Hasn't seen the light of day since, until their robot apparently found it.
I"m not sure what you mean by "Hasn't seen the light of day".  It sounds like the images remained on your server until you received the letter, right? How did the robot find it? Was it linked from a post-- which was also crawlable? 

That the page or post had few visits would likely be a point in your favor with respect to damages.  But if it once had lots of visits (even 6 years ago), maybe not.  In the US, copyright is an economic issue-- so the question the judge will be looking at isn't going to be limited to how much damage happened in the last year, but how much happened overall. 

If you are wondering what might happen if you were sued, you need to think about how the person suing you would present it and what the law is.  With respect to the 6 years ago-- the statute of limitations doesn't start when you posted the image. It starts when the copyright owner discovered you had posted it or 'should have' discovered it.  He may have discovered this less than 2 days before sending you the letter.  A judge isn't like to think the copyright owners "should have" discovered this the moment you posted-- so your saying it's been up for 6 years isn't going to help you in court.  If anything, depending on how this guy licenses and what fees he gets, it will elevate the monetary damages the copyright owner might claim.

Despite the fact that we're really strict about picking only public domain images, occasional mistakes happen. With over 15,000 articles written in 10 years, it's hard not to!
Sure. And possibly in court, the judge might think your position of 'this is a mistake' is credible or not. But the copyright owner isn't required to accept your word that you are careful and strict.  (BTW: 15,000 articles in 10 years with authors not under your control: this is why you need to register a DMCA agent.)

Also: the judge might think the fact that you don't have a DMCA agent, yet publish 15,000 articles in 10 years means your business model is to 'risk it'-- and he'll take that as a justification that when he sees you did violate, well... ok. You pay this time.  This is especially so if you are making money with things like ads and so on, and if he sees your motive for keeping 6 year old posts on the web to increase your web presence and generate advertising revenue from ads.  I don't know if that's what you do-- but superficially it sounds like that.

However, in 10 years we've only had a complaint one other time. Someone complained (no lawyers involved), I apologized and took it down.  That's how civilized people settle these things!
I agree that is civilized. But the fact that another copyright holder didn't sue may not help you in court.   (The low rate of complaints will likely help. The judge would at least see that you don't seem to be running a business whose model is to ignore copyright. )

But, returning to DMCA-- if another guy complained, that's yet another reason why you should have registered a DMCA agent back when that guy complained. If you have a business with 15,000 articles written by others-- and possibly 1,500 being a year being added, I'm a little confused why you didn't or don't register one.  I don't have a DMCA agent registered at my hobby blog because (a) it's a hobby blog and (b) I write most the articles, and I read every single one written by one of my friends-- and I absolutely positively know the images they insert are either original by them, in the public domain (published by government agencies like NOAA, NASA etc) or classic fair use.   In comments,  commenters can hotlink but they aren't allowed to upload.  (So... see, some people hotlink. To permit stray visitors in comments to upload is nuts. Just freakin' nuts-- and not just because of copyright. Also because of some of the worst software vulnerabilities are bugs in file uploading plugins for blogs, forum and etc.). 

Letting people you don't monitor closely  upload images-- and not keeping records?  That's asking for trouble on many fronts. You are experiencing one.

I get the impression you are upset that I'm saying this guy might sue. Well... this guy might sue.  He's hired an attorney which suggests his mental frame is to be willing to sue. Will he? We don't know. Will he win something if he does: Sounds like almost certainly yes,  he will win something. The reason he would win something if he sued is it looks very likely you did violate his copyright, he has registered the thing, he sent you proof of claim and so on. Other than the superficial part of making a demand, this guy is not acting like Getty Images. In fact: he's done many of the things that people around here fault Getty for not doing: showed proof of claim etc.

The question is how much would he win.  Maybe less than he's asking in settlement-- maybe more.  But he'll win something. What's worse for you is if you behave aggressively enough include too many allusions to "extortion" when responding to someone who has presented proof of claim, offer no settlement at all and so on, a judge might be very include to make you pay his attorney's fees.  Or  not. We don't know.

I don't want to seem unsympathetic-- in fact, I am sympathetic. But if you are weighing possibilities when negotiating, you need to think about your situation realistically. 

The-Gobbler

  • Jr. Member
  • **
  • Posts: 72
    • View Profile
Re: Sample replies? Best course of action to take?
« Reply #14 on: September 14, 2014, 12:16:51 PM »
"I don't know why someone wouldn't hotlink."

Because that's where Goatse came from! :-)

I'll look into a DMCA agent... I'm sorry but I've never even heard of such a thing before...  looking it up, I'm not sure how we'd qualify given that it seems to be for online service provides, not blogs, but I guess i could make a case given how many authors we have...
« Last Edit: September 14, 2014, 12:37:16 PM by The-Gobbler »

 

Sitemap 1 2 3 4 5 6 7 8 9 10 
Official ELI Help Options
Get Help With Your Extortion Letter | ELI Phone Support Call | ELI Defense Letter Program
Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters.