1081
Getty Images Letter Forum / Re: Two Canadian tech firms combine ( Masterfile )
« on: August 22, 2011, 06:57:06 PM »
inb4 layoffs.
S.G.
S.G.
| 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. |
Show Posts
This section allows you to view all posts made by this member. Note that you can only see posts made in areas you currently have access to.
1082
Getty Images Letter Forum / Re: Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?
« on: August 22, 2011, 06:56:46 PM »
It's obvious that there are those who rely on (or partly rely on) infringements for their livelihood.
I don't really expect them to concede any kind of weakness on the part of Getty or its counterparts.
There's a vested interest on their part in keeping up the ruse that Getty (and others) have the ability to sue absolutely anyone and win every time.
A vast majority of the money made from settlements is made from those who fall for the ruse.
That is, those who believe the rhetoric that Getty is always in the right and always wins.
A lot is has been said in this thread, but I don't see much in the way of links to sources on the web that would confirm many of the opinions.
So, for what it's worth, thanks for your opinions.
'photographer' says that, "the Getty photographer agreement is an exclusive one and that also includes extending them the rights in the first instance to pursue all infringements", but this statement is directly contradictory to the Righthaven case which shows that it's unacceptable to transfer only the "right to sue".
My argument is tested in court, I can provide evidence of this. Business agreements will never override the rule of law or legal precedent; Getty doesn't have that kind of power.
I haven't seen any evidence to the contrary posted here, just opinions from people who make money from posting misleading information.
I cannot see how this helps photographers, artists, Getty or anyone else by attempting to re-write history and pretend that some things never happened.
Or, stating absurdities such as the "government" is going to go after infringers and fine them. Are you 12-years old, or something?
It simply serves to illustrate how the scheme of misinformation operates in order to entice people to pay with doing their homework.
'photographer' sounds like a 'sockpuppet' for HELPI who left here because his "cover" was blown.
The whole, "we don't need to own the copyright because we have an exclusive agreement" argument is becoming tiresome.
Copyright your photos properly, and you'll be fine. That's the only way that you can have some control in the world of infringements.
I'll just finish here by saying again that anyone can sue anyone else at anytime for anything.
But, I'd be very, very interested to see a copyright infringement challenge in court for tens of thousands of dollars wherein the plaintiff arrives with a complaint, but no paperwork from the copyright office as proof of ownership.
A big court case... then nothing... so quiet that you could hear a pin drop. "My dog ate my copyright, your honor".
S.G.
I don't really expect them to concede any kind of weakness on the part of Getty or its counterparts.
There's a vested interest on their part in keeping up the ruse that Getty (and others) have the ability to sue absolutely anyone and win every time.
A vast majority of the money made from settlements is made from those who fall for the ruse.
That is, those who believe the rhetoric that Getty is always in the right and always wins.
A lot is has been said in this thread, but I don't see much in the way of links to sources on the web that would confirm many of the opinions.
So, for what it's worth, thanks for your opinions.
'photographer' says that, "the Getty photographer agreement is an exclusive one and that also includes extending them the rights in the first instance to pursue all infringements", but this statement is directly contradictory to the Righthaven case which shows that it's unacceptable to transfer only the "right to sue".
My argument is tested in court, I can provide evidence of this. Business agreements will never override the rule of law or legal precedent; Getty doesn't have that kind of power.
I haven't seen any evidence to the contrary posted here, just opinions from people who make money from posting misleading information.
I cannot see how this helps photographers, artists, Getty or anyone else by attempting to re-write history and pretend that some things never happened.
Or, stating absurdities such as the "government" is going to go after infringers and fine them. Are you 12-years old, or something?
It simply serves to illustrate how the scheme of misinformation operates in order to entice people to pay with doing their homework.
'photographer' sounds like a 'sockpuppet' for HELPI who left here because his "cover" was blown.
The whole, "we don't need to own the copyright because we have an exclusive agreement" argument is becoming tiresome.
Copyright your photos properly, and you'll be fine. That's the only way that you can have some control in the world of infringements.
I'll just finish here by saying again that anyone can sue anyone else at anytime for anything.
But, I'd be very, very interested to see a copyright infringement challenge in court for tens of thousands of dollars wherein the plaintiff arrives with a complaint, but no paperwork from the copyright office as proof of ownership.
A big court case... then nothing... so quiet that you could hear a pin drop. "My dog ate my copyright, your honor".
S.G.
1083
Getty Images Letter Forum / Re: Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?
« on: August 22, 2011, 02:56:49 PM »
Yes, Righthaven is different from Getty in many ways. So, you're right.
But, Righthaven and Getty are much the same in a key aspect.
Getty is much like Righthaven in that it frequently threatens to litigate over content for which it doesn't own the copyrights.
If Getty owns copyrights for all of its content, and also doesn't threaten to litigate over content for which it doesn't own copyright, I'll gladly retract the above statement.
Whether or not a company creates its own content or not doesn't generate copyright standing.
Copyright standing (for practical court purposes) is only created by proper copyright registrations.
Anything else is what I call "Phantom Copyright"; that's anything that essentially worthless as proof in court. The hearsay stuff.
That probably explains why Getty hasn't followed through with very many lawsuits.
Defeating Getty in the 'States is as easy as not paying. So, it's kind of a moot argument anyways.
S.G.
But, Righthaven and Getty are much the same in a key aspect.
Getty is much like Righthaven in that it frequently threatens to litigate over content for which it doesn't own the copyrights.
If Getty owns copyrights for all of its content, and also doesn't threaten to litigate over content for which it doesn't own copyright, I'll gladly retract the above statement.
Whether or not a company creates its own content or not doesn't generate copyright standing.
Copyright standing (for practical court purposes) is only created by proper copyright registrations.
Anything else is what I call "Phantom Copyright"; that's anything that essentially worthless as proof in court. The hearsay stuff.
That probably explains why Getty hasn't followed through with very many lawsuits.
Defeating Getty in the 'States is as easy as not paying. So, it's kind of a moot argument anyways.
S.G.
1084
Getty Images Letter Forum / Re: Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?
« on: August 22, 2011, 12:18:14 PM »
"photographer', to best reinforce your points please include sources from the web whenever possible.
My posts are my opinions of course, but I also include the sources of my information whenever I can.
I still don't see how government-run Internet policing would work. No government would spend hundreds of millions in taxes on such a scheme; they'd get voted out.
That's like saying that "the government" should have spent 20 million dollars on PicScout instead of Getty.
Then spend $135 dollars an hour searching the US copyright database for each alleged infringement to determine who owns what.
Next, pay multiple lawyers $250 - $500 an hour to fight alleged infringements in court.
Are infringements more important than health care, or more important than education? Are you actually serious?
Can anyone imagine the actions of Righthaven or even Imageline/Riddick being publicly funded while some governments are going broke?
There would be riots in the streets and people would die.
You can certainly instruct Getty to represent you. In fact, anyone can sue anybody else at any time for anything.
But the likelihood of a court win is remote without Getty owning the copyrights because of the Righthaven precedent that I quoted.
My advice would be don't go to court unless you *own* the copyright, otherwise you'll lose and end up a lot poorer.
You could "team up" with Getty in a lawsuit, that would work.
In all the cases that I am aware of (and I've provided proof), Getty hasn't always won. Do you wish to contest this statement?
While all quoting is "selective", it still stands that Getty lost the case in Germany. Getty does not always win.
I can quote the case from 50 other sources, but folks can use Google if they would like to verify that.
In the Getty case in the UK, the defendant did not show up for court, and the plaintiff won on default:
"I have actually commented on this case on the UK blog on the FSB forum; it appears that the defendant did not contest the case and it was granted on default.
Also, I believe that the issue of "innocent infringement" which in UK means that there are no damages awarded if the infringement was not intentional, was not argued either.
So I don't know how much precedent value the case will have."
-Oscar Michelen
Source:
http://www.extortionletterinfo.com/forum/index.php/topic,641.0.html
You mentioned that wilful damages don't need registration.
True, you can collect punitive damages without registration; that would be the fair purchase price of the image (often $39 to $300).
This is usually a low amount and is often not worth litigating over. But, you cannot collect statutory damages if the image isn't registered. That's where the real money is.
"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."
Source:
http://www.benedict.com/Info/Law/Why.aspx
Much has been made on this forum about Getty being an exclusive agent and exclusive contracts.
But I must again remind you that this failed miserably for Righthaven. So, I cannot see how such an argument holds water at this juncture.
Beyond all of this, the best course of action is to copyright images individually as you have done.
There's nothing stopping anyone from doing this, except the effort needed. The other methods aren't working.
S.G.
My posts are my opinions of course, but I also include the sources of my information whenever I can.
I still don't see how government-run Internet policing would work. No government would spend hundreds of millions in taxes on such a scheme; they'd get voted out.
That's like saying that "the government" should have spent 20 million dollars on PicScout instead of Getty.
Then spend $135 dollars an hour searching the US copyright database for each alleged infringement to determine who owns what.
Next, pay multiple lawyers $250 - $500 an hour to fight alleged infringements in court.
Are infringements more important than health care, or more important than education? Are you actually serious?
Can anyone imagine the actions of Righthaven or even Imageline/Riddick being publicly funded while some governments are going broke?
There would be riots in the streets and people would die.
You can certainly instruct Getty to represent you. In fact, anyone can sue anybody else at any time for anything.
But the likelihood of a court win is remote without Getty owning the copyrights because of the Righthaven precedent that I quoted.
My advice would be don't go to court unless you *own* the copyright, otherwise you'll lose and end up a lot poorer.
You could "team up" with Getty in a lawsuit, that would work.
In all the cases that I am aware of (and I've provided proof), Getty hasn't always won. Do you wish to contest this statement?
While all quoting is "selective", it still stands that Getty lost the case in Germany. Getty does not always win.
I can quote the case from 50 other sources, but folks can use Google if they would like to verify that.
In the Getty case in the UK, the defendant did not show up for court, and the plaintiff won on default:
"I have actually commented on this case on the UK blog on the FSB forum; it appears that the defendant did not contest the case and it was granted on default.
Also, I believe that the issue of "innocent infringement" which in UK means that there are no damages awarded if the infringement was not intentional, was not argued either.
So I don't know how much precedent value the case will have."
-Oscar Michelen
Source:
http://www.extortionletterinfo.com/forum/index.php/topic,641.0.html
You mentioned that wilful damages don't need registration.
True, you can collect punitive damages without registration; that would be the fair purchase price of the image (often $39 to $300).
This is usually a low amount and is often not worth litigating over. But, you cannot collect statutory damages if the image isn't registered. That's where the real money is.
"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."
Source:
http://www.benedict.com/Info/Law/Why.aspx
Much has been made on this forum about Getty being an exclusive agent and exclusive contracts.
But I must again remind you that this failed miserably for Righthaven. So, I cannot see how such an argument holds water at this juncture.
Beyond all of this, the best course of action is to copyright images individually as you have done.
There's nothing stopping anyone from doing this, except the effort needed. The other methods aren't working.
S.G.
1085
Getty Images Letter Forum / Re: Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?
« on: August 21, 2011, 11:45:14 PM »
'photographer': thanks for the interesting comments about the web design issue; it's quite a competitive business.
I also have the impression that many businesses outsource web design to other countries to save money.
You stated that, "Its currently being discussed in the EU to put it on the statute and white papers on amendments to Berne have suggested making it either a global or country agency issue. In other words the good old government will recover damages through fines and will remunerate creators accordingly." I'm not aware of this, but, I'm interested in looking into it. However, I'm not sure how this could be successfully implemented. I can't see how the "state" would or could take on civil litigation issues for individuals or businesses. If it's a 'fine' that one cannot fight, then it would be "against the constitution" as US folks might say. Is there a source for the information?
You also mentioned that, "Just a bit of background info, my Getty contracts state that as copyright holder I authorize them to act on my behalf. When it comes to court I just sign an affidavit that I am the copyright owner (which is then verified) and I have instructed them to act on my behalf (just as you would any other lawyer). I have spoken to Gettys legal department many times and trust me, I would hate to be on the receiving end." I believe that there may be some serious legal problems with this method. This method of assigning the right to sue, but not the actual copyright has gotten Righthaven in a lot of hot water:
"Chief U.S. District Court Judge Roger Hunt was particularly peeved to learn that Righthaven was trying to engage in legal slight-of-hand by purportedly having publisher Stephens Media, LLC assign it any right to sue for copyright infringement. This was impossible, the court concluded, because copyright law forbids assigning the right to sue over alleged infringement; “only the owner of an exclusive right under a copyright may bring suit.”
http://onward.justia.com/2011/06/16/judge-righthaven-in-the-wrong-on-copyright/
Getty has had some success outside of the US, but I do believe that it's been a bit spotty. They haven't won every time.
The big win in the UK was earth-shaking. The defendant didn't show up for court as I understand it and received what might be considered the worst possible outcome.
Getty lost quite a famous case in Germany. They sued an alleged infringer who has his own contract with the photographer, and Getty lost in court.
"In Germany, Getty images lost a court case to an individual after the person has proved that he gotten exclusive rights from the photographer."
http://en.wikipedia.org/wiki/Getty_Images
As you can see, I'm more familiar with US/Canadian issues. Perhaps you can shed even more light on UK concerns in future posts?
Just some of my thoughts and some stuff that I found on the web along the way. Thanks for your contributions here.
S.G.
I also have the impression that many businesses outsource web design to other countries to save money.
You stated that, "Its currently being discussed in the EU to put it on the statute and white papers on amendments to Berne have suggested making it either a global or country agency issue. In other words the good old government will recover damages through fines and will remunerate creators accordingly." I'm not aware of this, but, I'm interested in looking into it. However, I'm not sure how this could be successfully implemented. I can't see how the "state" would or could take on civil litigation issues for individuals or businesses. If it's a 'fine' that one cannot fight, then it would be "against the constitution" as US folks might say. Is there a source for the information?
You also mentioned that, "Just a bit of background info, my Getty contracts state that as copyright holder I authorize them to act on my behalf. When it comes to court I just sign an affidavit that I am the copyright owner (which is then verified) and I have instructed them to act on my behalf (just as you would any other lawyer). I have spoken to Gettys legal department many times and trust me, I would hate to be on the receiving end." I believe that there may be some serious legal problems with this method. This method of assigning the right to sue, but not the actual copyright has gotten Righthaven in a lot of hot water:
"Chief U.S. District Court Judge Roger Hunt was particularly peeved to learn that Righthaven was trying to engage in legal slight-of-hand by purportedly having publisher Stephens Media, LLC assign it any right to sue for copyright infringement. This was impossible, the court concluded, because copyright law forbids assigning the right to sue over alleged infringement; “only the owner of an exclusive right under a copyright may bring suit.”
http://onward.justia.com/2011/06/16/judge-righthaven-in-the-wrong-on-copyright/
Getty has had some success outside of the US, but I do believe that it's been a bit spotty. They haven't won every time.
The big win in the UK was earth-shaking. The defendant didn't show up for court as I understand it and received what might be considered the worst possible outcome.
Getty lost quite a famous case in Germany. They sued an alleged infringer who has his own contract with the photographer, and Getty lost in court.
"In Germany, Getty images lost a court case to an individual after the person has proved that he gotten exclusive rights from the photographer."
http://en.wikipedia.org/wiki/Getty_Images
As you can see, I'm more familiar with US/Canadian issues. Perhaps you can shed even more light on UK concerns in future posts?
Just some of my thoughts and some stuff that I found on the web along the way. Thanks for your contributions here.
S.G.
1086
Getty Images Letter Forum / Re: Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?
« on: August 21, 2011, 03:53:51 PM »
I guess that I feel for 'newzshooter' and 'photographer' a lot more that I feel for the big stock image companies. It would appear to me that they're more like 'victims'.
I also sense that their situations are somewhat different than those of the large companies, but I appreciate the perspectives that they have expressed here.
Copyright infringement is not "theft". If you phone the police about a "stolen" image, they won't come; it's not part of any criminal statute. Furthermore, if you get your stereo stolen, you lose the use of it, and you lose the value of the item. If an image is infringed upon, you don't lose the image, or the use of it. You may have lost the income that you would have had if the infringer had purchased it. But, that assumes that the infringer would have purchased it, which is speculative.
'photographer', you spoke of issuing proceedings, which I take to mean "court proceedings". My opinion is that the moral 'high ground' is sending a simple cease and desist letter. It works the vast majority of the time. Threatening a lawsuit or going through with a lawsuit in order to generate monies is a method of using infringements as a revenue stream. There's nothing wrong with that so long as you own the images, have done the paperwork, and are asking a fair price. But, less people will feel sorry for your plight and others like you in such a case.
I don't think that the vast majority of infringers are crooks or evil. The culture of the Internet up until very recently has been a free-for-all. It's the fault of infringers for sure, but it's even more the fault of artists/photographers who didn't consider protecting and policing their content until they realized that they could make money from legal threats. So, now we're left with quite a mess. Prior to this, most people had only heard of IP disputes over major brands or patents.
Large stock image companies are doing a huge disservice to photographers/artists like you. They wish to systematically weaken the copyright protections rather than strengthen them. They wish to make the system of bulk registrations acceptable as proof of copyright. However, the concept of bulk registrations actually weakens the concept of copyright protection for everyone. If a company can say, "it's our image, and it's in there somewhere... just take our word for it", then how is that a proof of copyright? The image might be in the collection, or it could be a scam (it's not in there). Maybe it's in there, but it's your image, or even mine. Therefore, a person or company could claim whatever they/it wanted, and that would be proof enough. That would be fine if everyone was honest, but not everyone is. In the end everyone's copyright's are weakened, as standing would be based on taking someone's word for it, and that's not simply not enough proof in this day and age.
In any case, we're going to see something big happen soon. Getty might go to court over a big case involving several images. Or, several Masterfile victims may get together and file suit. Masterfile in particular may be vulnerable here. They have a policy of sending people threatening letters, making threatening phone calls, sending 'draft' lawsuits (this is illegal for collection agencies to do in some places by the way), sent cases to collection agencies over non-existent debts, filed papers with the courts and then backed out at the last minute when they realized that the defendant was going to fight. Even a small number of people who have experienced the above could get together, and Masterfile had better hope that they own the copyrights. Demand letter recipients have been contacting the actual photographers about alleged Masterfile infringements, and some of these photographers are saying in writing that they still hold the copyrights. In such cases Masterfile had no right to do what they did. Getty is often especially weak on copyright standing, so they're a target too. However, they have so much invested in this scam that they'll fight to the death. Masterfile doesn't have nearly the same resources.
S.G.
I also sense that their situations are somewhat different than those of the large companies, but I appreciate the perspectives that they have expressed here.
Copyright infringement is not "theft". If you phone the police about a "stolen" image, they won't come; it's not part of any criminal statute. Furthermore, if you get your stereo stolen, you lose the use of it, and you lose the value of the item. If an image is infringed upon, you don't lose the image, or the use of it. You may have lost the income that you would have had if the infringer had purchased it. But, that assumes that the infringer would have purchased it, which is speculative.
'photographer', you spoke of issuing proceedings, which I take to mean "court proceedings". My opinion is that the moral 'high ground' is sending a simple cease and desist letter. It works the vast majority of the time. Threatening a lawsuit or going through with a lawsuit in order to generate monies is a method of using infringements as a revenue stream. There's nothing wrong with that so long as you own the images, have done the paperwork, and are asking a fair price. But, less people will feel sorry for your plight and others like you in such a case.
I don't think that the vast majority of infringers are crooks or evil. The culture of the Internet up until very recently has been a free-for-all. It's the fault of infringers for sure, but it's even more the fault of artists/photographers who didn't consider protecting and policing their content until they realized that they could make money from legal threats. So, now we're left with quite a mess. Prior to this, most people had only heard of IP disputes over major brands or patents.
Large stock image companies are doing a huge disservice to photographers/artists like you. They wish to systematically weaken the copyright protections rather than strengthen them. They wish to make the system of bulk registrations acceptable as proof of copyright. However, the concept of bulk registrations actually weakens the concept of copyright protection for everyone. If a company can say, "it's our image, and it's in there somewhere... just take our word for it", then how is that a proof of copyright? The image might be in the collection, or it could be a scam (it's not in there). Maybe it's in there, but it's your image, or even mine. Therefore, a person or company could claim whatever they/it wanted, and that would be proof enough. That would be fine if everyone was honest, but not everyone is. In the end everyone's copyright's are weakened, as standing would be based on taking someone's word for it, and that's not simply not enough proof in this day and age.
In any case, we're going to see something big happen soon. Getty might go to court over a big case involving several images. Or, several Masterfile victims may get together and file suit. Masterfile in particular may be vulnerable here. They have a policy of sending people threatening letters, making threatening phone calls, sending 'draft' lawsuits (this is illegal for collection agencies to do in some places by the way), sent cases to collection agencies over non-existent debts, filed papers with the courts and then backed out at the last minute when they realized that the defendant was going to fight. Even a small number of people who have experienced the above could get together, and Masterfile had better hope that they own the copyrights. Demand letter recipients have been contacting the actual photographers about alleged Masterfile infringements, and some of these photographers are saying in writing that they still hold the copyrights. In such cases Masterfile had no right to do what they did. Getty is often especially weak on copyright standing, so they're a target too. However, they have so much invested in this scam that they'll fight to the death. Masterfile doesn't have nearly the same resources.
S.G.
1087
Getty Images Letter Forum / Re: Getty sends DCMA notice to google
« on: August 20, 2011, 11:58:47 PM »
It would be kind of ironic to have to register for DMCA protections from others who often don't even own the copyrights to their content.
S.G.
S.G.
1088
Getty Images Letter Forum / Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?
« on: August 19, 2011, 06:16:29 PM »Many of us here are well aware of the tactics of Masterfile, Getty, Righthaven, etc.
Many arguments have been made about "standing". But, no matter how you slice it, only the exclusive copyright holder has any hope of recovering any significant damages in court.
The prospect of court is often the only thing that convinces some people to pay out, even if a court date isn't even a remote possibility.
So, what of those who are threatened repeatedly with litigation, or those who are sued needlessly just to make them settle out-of-court for a large amount of money?
Some are sent threatening letters by lawyers representing these stock image companies; what can be done?
What about those who are threatened by collections agencies even though no debt is owed?
I believe that such groundless acts may fall under the concept in law called "barratry".
I came across this when I realized that a person is suing Righthaven for "barratry", and I feel that this could apply to other copyright trolls and their actions in many, many cases.
The following is an explanation of "barratry", and details of the Righthaven lawsuit that I mentioned.
In the United States:
Several jurisdictions in the US have declared barratry (in the sense of a frivolous or harassing litigant) to be a crime as part of their tort reform efforts. For example, in the U.S. states of California, Pennsylvania, Virginia, and Washington, barratry is a misdemeanor;[5] in Texas, a felony.[6]
Many arguments have been made about "standing". But, no matter how you slice it, only the exclusive copyright holder has any hope of recovering any significant damages in court.
The prospect of court is often the only thing that convinces some people to pay out, even if a court date isn't even a remote possibility.
So, what of those who are threatened repeatedly with litigation, or those who are sued needlessly just to make them settle out-of-court for a large amount of money?
Some are sent threatening letters by lawyers representing these stock image companies; what can be done?
What about those who are threatened by collections agencies even though no debt is owed?
I believe that such groundless acts may fall under the concept in law called "barratry".
I came across this when I realized that a person is suing Righthaven for "barratry", and I feel that this could apply to other copyright trolls and their actions in many, many cases.
The following is an explanation of "barratry", and details of the Righthaven lawsuit that I mentioned.
In the United States:
Several jurisdictions in the US have declared barratry (in the sense of a frivolous or harassing litigant) to be a crime as part of their tort reform efforts. For example, in the U.S. states of California, Pennsylvania, Virginia, and Washington, barratry is a misdemeanor;[5] in Texas, a felony.[6]
- California Penal Code Section 158: "Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000)."
- California Penal Code Section 159: "No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy."
- Revised Code of Washington 9.12.010: "Every person who brings on his or her own behalf, or instigates, incites, or encourages another to bring, any false suit at law or in equity in any court of this state, with intent thereby to distress or harass a defendant in the suit, or who serves or sends any paper or document purporting to be or resembling a judicial process, that is not in fact a judicial process, is guilty of a misdemeanor; and in case the person offending is an attorney, he or she may, in addition thereto be disbarred from practicing law within this state."
http://en.wikipedia.org/wiki/Barratry
One defendant in South Carolina hopes that it adds up to barratry. Dana Eiser, sued by Righthaven for copying an article from the Denver Post, has sued Righthaven back, claiming that Righthaven's business practices are a form of barratry and thus an unfair trade practice. In South Carolina (it's a state law claim, so the contours will vary from state to state), "Any person who shall willfully bring, prosecute or maintain an action and has no direct or substantial interest in the relief thereby sought shall be guilty of the crime of barratry." Not actually owning any exclusive right that is infringed, yet bringing lawsuits, sounds a lot like not having a "direct or substantial interest in the relief thereby sought."
http://www.google.ca/#hl=en&cp=30&gs_id=1v&xhr=t&q=Dana+Eiser+righthaven+barratry&pf=p&sclient=psy&safe=off&source=hp&pbx=1&oq=Dana+Eiser+righthaven+barratry&aq=f&aqi=&aql=&gs_sm=&gs_upl=&bav=on.2,or.r_gc.r_pw.&fp=cab8d79b6906b781&biw=1680&bih=922
Read Dana Eiser's lawsuit:
http://www.scribd.com/doc/57780379/Eiser-v-Righthaven-LLC-Civil-Unfair-Trade-Practices-Complaint
With the explosion of copyright trolling the barratry concept may quickly gain importance.
This could be the key to a class-action that many have been hoping for.
S.G.
1089
Getty Images Letter Forum / Re: A purely hypothetical question
« on: August 19, 2011, 03:15:46 PM »
The logs contain a lot of info that could cause some issues if I post it.
If I cut parts out, then it loses context and meaning.
But, suffice to say that the 'signs' are/were Israel, domain name "BEZEQINT-HOSTING" (among others) and IP addresses known to be associated with PicScout.
S.G.
If I cut parts out, then it loses context and meaning.
But, suffice to say that the 'signs' are/were Israel, domain name "BEZEQINT-HOSTING" (among others) and IP addresses known to be associated with PicScout.
S.G.
1090
Getty Images Letter Forum / Re: Can we start a "Success Mission Accomplished" Thread for success stories?
« on: August 19, 2011, 01:16:52 AM »
mcfilms; "cool story bro". Thanks for sharing.
I'm pleased (as are many others) that everything worked out well for you!!
I'm a bit surprised that Getty took this as far as they did; perhaps they thought that you'd just pay due to the strong-arm tactics?
Thanks again.
S.G.
I'm pleased (as are many others) that everything worked out well for you!!
I'm a bit surprised that Getty took this as far as they did; perhaps they thought that you'd just pay due to the strong-arm tactics?
Thanks again.
S.G.
1091
Getty Images Letter Forum / Re: A purely hypothetical question
« on: August 18, 2011, 11:51:10 PM »
There's a sequence of events that happens when PicScout is used to find infringements.
From what I've seen, the web logs of alleged infringers indicate multiple visits from Israel corresponding to an IP address associated with PicScout.
This appears to be an automated scan, spidering all content in the site.
If infringing content has been found by PicScout, multiple visits will occur from an IP address from the likes of Getty, MF or Corbis after a short period of time.
This appears to be a visual inspection by a human; someone visits using a web browser, following manual 'clicks' through the pages of the site.
Note that things may have changed recently, as Getty has bought PicScout. I'm not even sure if PicScout's operated from Israel anymore.
I doubt that a situation involving an image that is "pushed" would end up in court.
While MF or Getty will certainly intimidate everyone they can in order to make them pay, I don't think that they'd waste their money actually going to court over an issue that comes down to the DMCA.
The DMCA is fairly mature and well-understood in my opinion.
But, they tell everyone that they'll sue, regardless of what they actually intend to do.
I don't think that PicScout could spider password-protected directories.
If it did, that would cause some serious legal issues for them, and would invalidate any results gained through such actions.
I have heard of people accidentally leaving content in a non-protected area, and then getting caught. So it's important to keep things in their proper place.
In addition, I should mention that some stock-image houses traditionally allowed the use of low-res versions of their images for prototyping web sites, or print articles.
Some may remember the CD-ROMS that were sent around by MF.
If this type of fair use was discouraged by over-zealous searching by PicScout and the corresponding threats by a given stock image company, then it would discourage the use of said stock photos by designers.
Maybe it's happening already?
One almost feels like having a stock image company's content anywhere on your network(s)/device(s) is almost like having illegal porn, and the likes of Getty/MF/etc. are the cops coming to get you.
It's a wonder if they actually sell much to anyone.
S.G.
From what I've seen, the web logs of alleged infringers indicate multiple visits from Israel corresponding to an IP address associated with PicScout.
This appears to be an automated scan, spidering all content in the site.
If infringing content has been found by PicScout, multiple visits will occur from an IP address from the likes of Getty, MF or Corbis after a short period of time.
This appears to be a visual inspection by a human; someone visits using a web browser, following manual 'clicks' through the pages of the site.
Note that things may have changed recently, as Getty has bought PicScout. I'm not even sure if PicScout's operated from Israel anymore.
I doubt that a situation involving an image that is "pushed" would end up in court.
While MF or Getty will certainly intimidate everyone they can in order to make them pay, I don't think that they'd waste their money actually going to court over an issue that comes down to the DMCA.
The DMCA is fairly mature and well-understood in my opinion.
But, they tell everyone that they'll sue, regardless of what they actually intend to do.
I don't think that PicScout could spider password-protected directories.
If it did, that would cause some serious legal issues for them, and would invalidate any results gained through such actions.
I have heard of people accidentally leaving content in a non-protected area, and then getting caught. So it's important to keep things in their proper place.
In addition, I should mention that some stock-image houses traditionally allowed the use of low-res versions of their images for prototyping web sites, or print articles.
Some may remember the CD-ROMS that were sent around by MF.
If this type of fair use was discouraged by over-zealous searching by PicScout and the corresponding threats by a given stock image company, then it would discourage the use of said stock photos by designers.
Maybe it's happening already?
One almost feels like having a stock image company's content anywhere on your network(s)/device(s) is almost like having illegal porn, and the likes of Getty/MF/etc. are the cops coming to get you.
It's a wonder if they actually sell much to anyone.
S.G.
1092
Getty Images Letter Forum / Re: Karma is a wonderful thing
« on: August 18, 2011, 02:19:10 PM »
This is why I always smile when somebody says "Getty has only exclusive contracts" and "I wouldn't challenge Getty on standing".
I'm smiling, bro.
One note that I'd like to make is that while Getty doesn't sue many people as of now, they do fight back vigorously (from what I've read).
They make it horrendously expensive to fight them. So, this is something to watch.
S.G.
I'm smiling, bro.
One note that I'd like to make is that while Getty doesn't sue many people as of now, they do fight back vigorously (from what I've read).
They make it horrendously expensive to fight them. So, this is something to watch.
S.G.
1093
Getty Images Letter Forum / Re: A purely hypothetical question
« on: August 18, 2011, 02:14:18 PM »
No matter what, the likes of MF and Getty will say that the "end user" is on the hook. You can bet your life on it. But, there's no specific provision in copyright law for that, however.
My research shows me that PicScout spiders all links and pages, drilling down further and further.
A PicScout report is then viewed by a human, who 'looks' at a site visually, to determine at what page level the infringing images appear 'visually'.
I say 'visually', as a single page may be made up of many nested frames for example, but 'visually' the pages need to be noted as first page, secondary page, etc.
"Visually" is the key here. MF and Getty aren't concerned with where the content comes from, only that it appears 'visually' on the site in question.
Then, "screen captures" are taken. All this follows their "end user" pays policy; they're not concerned with how the content got there. Only that they can see it there.
By now, perhaps some of this has been automated?
I think that if a site owner linked directly to an image elsewhere on the 'net, thereby "pulling" the image into the site, this would likely constitute a (wilful) infringement.
However, the opposite is clearly a different condition. If a third party "pushes" infringing content onto your site (even if you set up the scripts to do so) this may not be considered an infringement being made by the site owner. This would invoke protections for the site owner under the DMCA.
Again, MF and Getty will insist that no matter what, you've infringed and that the "end user" must pay.
But that's a construct that they've invented, and it's not copyright "law".
They'll threaten the end user, and may even go to court. But, there's no provision in copyright law as per Internet technology as I spoke of here.
So, the argument would be a purely logical one to a judge. That's in addition to any previous precedents. Refer to the push/pull argument above.
Google's Image Search has always been an interesting case. It's case for legality is probably beyond the scope of this forum, but it's protected by the DMCA.
I've heard that it has to do with the way that Google stores (or doesn't store) the thumbnails, and links dynamically into the actual images or pages.
It also provides a meaningful service.
It would be interesting to see cases wherein a defendant successfully draws an analogy between Google Image Search and their own site.
S.G.
My research shows me that PicScout spiders all links and pages, drilling down further and further.
A PicScout report is then viewed by a human, who 'looks' at a site visually, to determine at what page level the infringing images appear 'visually'.
I say 'visually', as a single page may be made up of many nested frames for example, but 'visually' the pages need to be noted as first page, secondary page, etc.
"Visually" is the key here. MF and Getty aren't concerned with where the content comes from, only that it appears 'visually' on the site in question.
Then, "screen captures" are taken. All this follows their "end user" pays policy; they're not concerned with how the content got there. Only that they can see it there.
By now, perhaps some of this has been automated?
I think that if a site owner linked directly to an image elsewhere on the 'net, thereby "pulling" the image into the site, this would likely constitute a (wilful) infringement.
However, the opposite is clearly a different condition. If a third party "pushes" infringing content onto your site (even if you set up the scripts to do so) this may not be considered an infringement being made by the site owner. This would invoke protections for the site owner under the DMCA.
Again, MF and Getty will insist that no matter what, you've infringed and that the "end user" must pay.
But that's a construct that they've invented, and it's not copyright "law".
They'll threaten the end user, and may even go to court. But, there's no provision in copyright law as per Internet technology as I spoke of here.
So, the argument would be a purely logical one to a judge. That's in addition to any previous precedents. Refer to the push/pull argument above.
Google's Image Search has always been an interesting case. It's case for legality is probably beyond the scope of this forum, but it's protected by the DMCA.
I've heard that it has to do with the way that Google stores (or doesn't store) the thumbnails, and links dynamically into the actual images or pages.
It also provides a meaningful service.
It would be interesting to see cases wherein a defendant successfully draws an analogy between Google Image Search and their own site.
S.G.
1094
Getty Images Letter Forum / Re: Masterfile - in need of urgent advice
« on: August 18, 2011, 12:45:41 PM »
Nemen Night does make a good point that the plaintiff must prove his/her case.
While the burden of proof isn't as high as in a criminal case, there must be compelling evidence nonetheless.
Part of the MF/Getty tactics are intended to make the average person (who often knows little about copyrights) feel that the case rides solely on the defendant's ability to prove "innocence".
S.G.
While the burden of proof isn't as high as in a criminal case, there must be compelling evidence nonetheless.
Part of the MF/Getty tactics are intended to make the average person (who often knows little about copyrights) feel that the case rides solely on the defendant's ability to prove "innocence".
S.G.
1095
Getty Images Letter Forum / Re: GR/PPH/CON Form
« on: August 18, 2011, 12:10:31 PM »
I think that buddhapi is correct also. I've seen this question come up a few times here.
So, I'll paste in some info here in the hopes of clarifying it. Where's Helpi (Riddick?) when you need him?
Naturally, we're speaking in terms of US law here; your mileage may vary in other locales.
§412. Registration as prerequisite to certain remedies for infringement
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) [17 USC 106A(a)], an action for infringement of the copyright of a work that has been preregistered under section 408(f) [17 USC 408(f)] before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b) [17 USC 411(b)], no award of statutory damages or of attorney's fees, as provided by sections 504 and 505 [17 USC § §504 and 505], shall be made for--
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
From:
http://www.bitlaw.com/source/17usc/412.html
Or more simply stated:
Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer. Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal.
From:
http://www.benedict.com/Info/Law/Why.aspx
Of course, a defense could involve searching for a publication of the content prior to the three month window that preceeded the alleged infringement.
S.G.
So, I'll paste in some info here in the hopes of clarifying it. Where's Helpi (Riddick?) when you need him?
Naturally, we're speaking in terms of US law here; your mileage may vary in other locales.
§412. Registration as prerequisite to certain remedies for infringement
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a) [17 USC 106A(a)], an action for infringement of the copyright of a work that has been preregistered under section 408(f) [17 USC 408(f)] before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b) [17 USC 411(b)], no award of statutory damages or of attorney's fees, as provided by sections 504 and 505 [17 USC § §504 and 505], shall be made for--
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
From:
http://www.bitlaw.com/source/17usc/412.html
Or more simply stated:
Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer. Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal.
From:
http://www.benedict.com/Info/Law/Why.aspx
Of course, a defense could involve searching for a publication of the content prior to the three month window that preceeded the alleged infringement.
S.G.
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. |