Messages

1126

Getty Images Letter Forum / Re: NCS called today

« on: December 02, 2008, 07:06:11 PM »

I can't believe the NCS rep responded in that fashion. As for Getty taking all of the innocent infringers to court at once so that I can't represent them that has been threatened before (by a poster on this site actually)  and my response was that we are aware of that risk and have been trying to plan for that contingency by (among other things) communicating with law schools that have intellectual property or civil advocacy clinics to help with the litigation if that arises. There are other contingency plans that I  haven't solidified and don't want to discuss in a post. But, for example, folks can represent themselves if need be with my firm providing advice without actually having to appear as attorneys on their behalf. Let Getty take whatever action they need to take, we are still waiting for them to respond to our latest letter which caught them in a difficult position - they claim they are entitled to these sums because of "multipliers" yet court do not award multipliers in these type of cases and better yet - Getty recently sent a memo to its photographers advising them to copyright their images because otherwise it will be very difficult to get multiplier damages. So they are definitely sending out mixed messages.

1127

UK Getty Images Letter Forum / Re: Great article in Guardian newspaper about Getty tactics

« on: December 01, 2008, 03:01:32 PM »

This was discussed heavily in the FSB forum but not on this site. Thanks for posting it! The law in UK is so much more protective of users than the States.

1128

Getty Images Letter Forum / Re: damages

« on: November 30, 2008, 06:07:58 PM »

That would be one way, though if they don't comply then what? It really comes doe to how much time and effort you want to invest in getting your old sites off of their site.  Getty really can't use those images as proof of continuing copyright infringement  it just provide proof to them of when you did allegedly infringe. That could be important as to  prove actual damages they would want to show how long the images were used.

1129

Getty Images Letter Forum / Re: My lawyer said I have to pay Getty

« on: November 30, 2008, 10:26:48 AM »

That's great dorim.  If you bought that poster and took an image of it and put that on your website, you would likely be protected under the "first sale doctrine."

1130

Getty Images Letter Forum / Re: Can copyright law [likely] be changed?

« on: November 30, 2008, 10:24:30 AM »

Two comments on this:

(1) This was discussed on another post of mine where I suggested bringing US law in line with UK law.  In the UK, if the user proves an innocent infringement, the court will not award damages.  Matt and I have been discussing putting up a petition to get online signatures to change the law, but we feel we need to get a little closer to getting some resolution from Getty on these claims. You can look at the great FSB forum which we link to on our homepage to see the Getty discussion going on in the UK.

(2) I am awaiting Getty's latest response to our most recent series of letters. They keep changing their position as we keep showing the errors of their prior positions. Soon we will either have to stop engaging them and just wait for a lawsuit to prove who's right or bring an affirmative class action to declare all our clients "innocent infringers" and assess damages. Remember many folks may have a defense to the copyright as these photographers did not exclusively provide the images to Getty so some of the people receiving these letters got the images with license and permission from the actual owner of the image.

1131

Getty Images Letter Forum / Re: Masterfile Corporation

« on: November 30, 2008, 10:17:36 AM »

That' s right lettered.. Here's the brief description Wikipedia version of DMCA II which gave OSP's the protection:

Title II: Online Copyright Infringement Liability Limitation Act

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users, if the material upon notice from such users claiming that the material in question is not, in fact, infringing. OCILLA also provides for subpoenas to OSPs to provide their users' identity.

1132

Getty Images Letter Forum / Re: Masterfile Corporation

« on: November 29, 2008, 06:56:24 PM »

No, the law does not require a cease and desist notice at all. They can just proceed right with a lawsuit without any other notice.

1133

Getty Images Letter Forum / Re: damages

« on: November 27, 2008, 01:24:50 PM »

This is very helpful

1134

Getty Images Letter Forum / Re: damages

« on: November 27, 2008, 12:15:05 PM »

Can't find what you are referring to lettered.
Oscar

1135

Getty Images Letter Forum / Re: Masterfile Corporation

« on: November 27, 2008, 12:14:16 PM »

We are dealing with Masterfile on about three matters right now.  They are a bit better to deal with than Getty in that they at least provide you with the information that forms the basis of the claim. We are expecting a response to the latest letter we sent them at the end of next week. Our position with Masterfile (who registers the images with the Copyright Office) is that the Copyright Law allows judges to reduces damages to $200 per image for cases of "Innocent infringement" In my opinion under the facts you present no Federal judge would award the amounts Masterfile demands. In a recent case, (2/4/2008) filed here in NY, Masterfile v. Country Cycling 06 Civ. 6363, Masterfile sought $5,500 per image. The defendant did not answer the complaint and only sent a letter into the court explaining its position. The court found innocent infringement and awarded $1,120 in statutory damages, the cost of a two year license through Masterfile. I think the court would have awarded less had the defendant had legal representation. What really hurt the defendant was that the court also awarded $4,860 in legal fees.  The court indicated that it would have awarded less had the defendant offered a reasonable sum before suit was filed.  

So unlike Getty, Masterfile does file for copyright.  Now, the  interesting thing (at least to us intellectual property geeks) is that to save money Masterfile compiles hundreds of photos into compilations  and files them as compilations.  That means though that even if you take 20 photos from that compilation, it is only one infringement.  Also unlike Getty, Masterfile does file suit if you are unwilling to settle. In your specific situation, if your corporation is dissolved, then Masterfile will not get paid.  They cannot go against officers or directors individually that's why you incorporate in the first place.   I think that  is a bluff on their part.

Our letter will help stop them from harassing you and we would try to get them to accept a reasonable settlement if you are willing to do so, but if they do file suit, and you wanted to retain us to represent you in court, we would reduce our hourly rate from $450 to $150 per hour Its really up to you in light of the situation with your company whether you want to invest any money. Probably worth the $150  for the letter to see if we can make it go away.

1136

Getty Images Letter Forum / Re: damages

« on: November 25, 2008, 05:16:01 PM »

I think that is more than fair since you may have no obligation to pay anything.  As to the Wayback Machine, yes absolutely, I have seen it done.

1137

Getty Images Letter Forum / Re: damages

« on: November 25, 2008, 10:39:54 AM »

Dear sistem: I will answer your questions in order:

(1) What's the actual damage?:  

The damage Getty claims is that the user should have purchased the license for the image. The owner of a "work" has the right to be compenstaed for his/her intellectual property. They took the time to create the image so why should someone be allowed to use it for free? We agree with this legal position; we have no problem with this position.  What we disagree with is the amount of damage Getty claims to be entitled to and that Getty cannot prove that this same image was not available on some other site for free download. Getty claims theri "actual damage" is the cost of a two year license fee,which the Getty sites computes at about $1,200.00.  There are three problems with this position. First, Getty cannot prove that these images were all used for two years. Second, it is not Getty's inflated pricing schemem that controls; case law shows that it is "fair market value" that controls and the copyright holders price is only one factor to consider when affixing fair market value. So the FMV for one image is significantly lower than $1,200. Third, Getty is presently being sued by some top-level photographers who are claiming that Getty has allowed their images to be licensed for as low as $2.00! So how can they claim these inflated fees?

(2) What is the proof of use of those images?

Getty is indeed relying on the snapshot of the web page and is suing archives.org (the Wayback Machine) to get old screenshots of the sites.The longer the infringement went on, the more it would cost to acquire a similar license for the image. But as you see in my answer to your first question I don't believe they can establish a two year use for most of the images.

(3) Do they have the right to demand damages immediately?

Yes, there is no requirement that an infringer be first given a "Cease and Desist" letter prior to claiming damages. Even if they did first send out a cease and desist letter, they could still seek damages for past infringement.Copyright Law is very much geared to protecting intellectual property.  That's why you don't even need to register copyrights (or trademarks) in order to have rights in your work.  But the law also limits the damages you can receive if you have not registered them and the law also looks at the intent or lack of intent in assessing damages.

1138

Getty Images Letter Forum / Re: How they find you

« on: November 23, 2008, 11:07:15 PM »

My understanding is that the program they use, Picscout, scours the web looking for websites that contain digital images.. Using complicated and elaborate algorithms, they then compare the image to the Getty catalog until they find a match. That match is sent to Getty which then uses the data to print out their form demand letters.

1139

Getty Images Letter Forum / Re: new info on Getty

« on: November 23, 2008, 11:01:15 PM »

I worry about lawyers who allegedly do intellectual property law dealing with the internet and don't understand how websites compete for internet placement.  My partners and I took classes in web site optimization etc, just to improve our own firms website placement. As to helping draft an answer, I often ask my clients (many of whom are very sophisticated and much more knowledgable in the subject matter) to help answer the complaint so there is nothing wrong there.  One of the hardest things a skilled trial lawyer has to accomplish is to make the highly complicated and technical issues understandable to judges and -even harder -juries so that they can understand the client's case.  But courts have dealt with extraordinarily  complicated issues before and have been made to understand the science behind a  case. Its what lawyers do.

1140

Getty Images Letter Forum / Re: Getty/NCS Contacting Our Broker

« on: November 23, 2008, 10:53:41 PM »

Ok - you raise a number of issues that others have faced before and I will try to quickly address:

(1) Origin of the photo - one of the main problems Getty has is that sometimes these images aren't exclusively on their site. Keep any proof you have of the origin of the photo it could indeed come in handy;
(2) Contacting your broker instead of you A copyright holder has the right to go after the "end user" even if the user had no role in acquiring the questioned image.  Getty sees the broker name on the page and they want to go after the big fish who is most likely to pay.  No matter how much you tell them to contact you only they will not (and maybe even the more you tell them to do so they will do the opposite so that you are more likely to settle to get rid of this problem). Of the nearly 50 clients we presently represent under our letter program, probably one-third are web site developers who hire us on behalf of their clients who where contacted by Getty. Since they created the site, they feel responsible and want to keep their customer happy. We have had agents with Century 21 and Remaxx retain us to avoid the same type of  situation you are in.  One letter from a lawyer stops them contacting anybody.  They must then deal exclusively with the lawyer
(3) NCS is trying to collect the debt now.  They same rules apply to NCS.  They know of my firm and will send your file immediately back to Getty once they get our letter. As for why they can't put you or your broker "into collection,"  look at the other posts  on that topic here at the forum

Bottom line is that we would send the letter to NCS on your  and your broker's behalf. That will at least cool things down and then we would await for Getty to contact us.  If you look at some of the other posts here, you will see that our legal position is getting stronger all the time as we find out more about Getty.   To take advantage of our $150.00 letter program, email me at xxx