Messages

136

Getty Images Letter Forum / Re: Terms of Service Prohibiting Crawlers and Bots?

« on: November 26, 2013, 06:42:58 PM »

This thread is here because the more I have thought about the amount of my system resources that may actually have become to devoted to tools like picscout trying to catch me for something, the more upset it makes me all the time.  I mentioned elsewhere that I have literally had traffic problems caused by crawlers, bots, and spammers overrunning my site.  Legitimate users were honestly blocked because of these scummy tools.

I'm totally with you on that one. If you use php resources, I recommend ZBblock for those.  (It can't protect static resources.)

137

Getty Images Letter Forum / Re: Terms of Service Prohibiting Crawlers and Bots?

« on: November 26, 2013, 05:23:22 PM »

Do we know details of any case that has gone to trial?  If so, is there any mention of what means were used in the end to prove the infringement?  I have attempted to look at various scanned documents.  I admittedly understand very little of what I read in legal documents.

I don't. There's a Getty case. These details didn't matter in that case because the judge ruled that Getty's copyrights were flawed. Consequently, they lacked the right to sue.  How Getty found the infringement didn't matter because they couldn't even file. 

But seriously, I don't think we need to look at any cases to assess the likelihood that you can use robots.txt or TOS to prevent someone from filing or winning a copyright suit. There is nothing in the copyright statute that says the way the infringement came to light matters in any way shape of form.  It's how evidence came to light could matter in a criminal case-- in that situation the 4th amendment applies. But the 4th amendment restricts evidence from the Government and its agents from introducing evidence obtained through illegal searches in trials. Getty is not the government; I'm pretty sure the 4th amendment is irrelevant here.
 
If you were to try that tack, which you are free to do, you'd be trying to bring up something entirely new. It's really much better to avoid using getty images rather than hoping some TOS would help in the event that you do accidentally infringe and the image is found by Picscout.

138

Getty Images Letter Forum / Re: Terms of Service Prohibiting Crawlers and Bots?

« on: November 26, 2013, 04:11:21 PM »

My thinking is also that if PicScout or something else would find an image and they would attempt to sue, you could question the means by which the image was discovered.  If it was discovered that a banned tool was used, could you then show the terms of service, the methods used to block such a tool, and prove that the means of discovery is considered to be a system intrusion? 

No one knows the answer to that. But Craigslist and 3Taps are duking it out in court.
http://www.volokh.com/2013/08/18/district-court-holds-that-intentionally-circumventing-ip-address-block-is-unauthorized-access-under-the-cfaa/
Note that it's unlikely you have sent any cease and desists to Picscout or other bots. So you haven't worked as hard as Craigslist has at keeping 3Taps out.

Note that Picscout violating cfaa would not necessarily affect your copyright dispute. It just means you might sue them for violating cfaa, and they might sue you for copyright.

I realize this would be an extremely gray area because they you might be able to potentially define all kind of other strange things in your terms.  It just seems that something to that effect would be reasonable since there are valid concerns about bandwidth usage.  The fact that you can ask Google, Bing, The Internet Archive, and any other respectable bot not to crawl your site and they will obey your wishes seems that it would also be reasonable. 

Thoughts?

My thoughts are it's a legal gray area. Huge gray. But so far: unless you have specifically instructed Picscout to keep out and figured out how to ban their IP, no judge will decree they violate CFAA by visiting.  Even if the judge did, that probably wouldn't affect any copyright violation finding.

139

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA

« on: November 26, 2013, 04:00:08 PM »

My head is spinning a bit here.  The reason my head is spinning is your saying

"I'm coming at this from all angles at once.  The angle I'm trying to figure out is how to deal with it in the event that the image was uploaded to my server and having such an archive would show that it was"

.   If you have an archive, then you have that archive and you can figure out whether that hypothetical is relevant to your case. It seems to me that you can look at the html and figure out if that archive does or does not contain html that would have rendered an image in the spot on their screenshot where BWP displays it. And if you find that image link (or link to whatever resource) it seems to me that you would likely have looked at that html to see if the image file was on your server or not. And you would likely have looked at the file  to see if it was or the image BWP says it was.  So: I cannot help but believe you know which "angle" applies to your case.  (I can understand why it's in your interest to not say which on this thread. No matter which angle applies in your interest to keep BWP in the dark until such time as you are ready to communicate.  But I should think you know which angle applies.)


Now, assuming the archive helps you-- that is, the image either does not display, or is hotlinked and so on-- the open question I could see where you might be at risk is if your user logged in, uploaded a file, displayed it a while. During that time BWP found the image, took the screenshot and so on. Then AFTER that, your user logged in, removed the file, modified the post. And then even later, you got the letter from BWP.   In that case: your evidence would have been collected after the image file was removed-- so your archive would show that *on the day you got the letter* the image was not there.    So, I can see where you might feel this is not the most conclusive evidence  in the sense that you might still be responsible for any copyrightviolation- but if the image was displaying on the day you got the letter and/or the image was not on your server, it is in your interest to archive that because there is nothing about archiving a page that shows no infringement that can harm you.  If your concern is about the other user, but the archive shows no infringement, I'd say: archive.  Doing so will require BWP to do more work to establish infringement-- they will need dates and so on.


On this:

I could potentially match the most recent IP address of the user who posted it, though I don't know if it would matter much since it is a new  address and not one recorded on the actual day the complaint was filed.  I can't retroactively put it in place but it may help to be able to present the current state of some things.

I suspect you can very easily convince a judge that you run a multi-user blog. Also, that the blog post was associated with another users.  I'm guessing you have an email of the other  user anyway and so on.  Don't put things retroactively in place. You just want to be able to say what was on that page ane explain the baisis of your knowledge.    Anyway, it's likely good if you did keep the html of the blog post-- if you get sued, you'll want to show that to your attorney as who uploaded might matter for the case.  Or it might not. I don't know. (This is where having a DMCA would have been wise for you. But that's water under the bridge.)

Understood.  I think the question I was really asking was more along the lines of, would it be absurd to produce my own photoshopped evidence as a counter to prove that a screen shot is not sufficient?

Not absurd. But a lawyer could better advise if it's a good tactic.  It may or may not be.

For example: If I were the judge (which I'm  not) or on a jury, I would (a) already totally understand that a screenshot can be photoshopped or faked and (b) realize the fact that it can be doesn't mean it was faked.  It's just like "People can lie". That doesn't prove that anyone in particular is lying in any particular case.  So, making this as proof would be pointless. <i>I already know this.</i>  Moreover, I would expect the plaitiff (BWP) to bring in html -- that is more than a screenshot-- because I would want to see proof the image was on your server and so on. So, for me, "proving" that photo shop exists would be pointless.  But you would have to talk to an attorney about that. Maybe it would be useful. I don't know.   

I would expect that actual proof would consist of the direct URL to the image.

I think actual proof of infringement would require this to be shown in court.  That doesn't mean it has to be in the letter they send a blog owner. But presumably if you took down the post and looked at the html you know whether the html contained a link to an infringing image hosted on your sever. If it did, they may already have that uri, or, if they sue you, they can ask you what you know about the image during discovery and also in court.   

140

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA

« on: November 26, 2013, 01:45:32 PM »

It's not so much that I'm looking to archive it in the state it was.  It's more that I'd like it to be uncertain whether it ever existed in that state or not, especially if all they have is a screenshot. 

I understand all they gave you was a screenshot.  But as a blogger, I don't quite know why the fact that all they have is a screenshot affects your ability to know the state of your web page.  I can know stuff about my web pages based on my own access to the page. So I can determine what the state of the page is on any given date.  And my blog doesn't just go around randomly changing itself (unless it gets hacked. And if I was hacked, that might be a defense on a copyright violation!)

So I find myself asking: did you look at the html on the day you got the letter? Did the image appear on the page on the day you got the letter? Was there any element on the page (e.g. javascript ads) that might have contained the image they show in their screenshot? You don't need to answer that here. But you seem to want to know what constitutes 'evidence'.   If this got to court and advanced the defense that you think the image might not have been on the page and speculate that their screenshot might be photoshopped or faked or what have you, and I was the judge, I would want to know all these things I asked above. All would seem to be in your power to know. And rather than just hear you don't know whether the image ever appeared, I guess I'd want to know the state of the page on the day when you got the letter (or at least before you modified it to remove the image. Except... you didn't remove the image... right?)   So: your own screenshot of how it appeared on the date when you got the letter, an archive showing the html and so on would be useful to counter any BWP's screenshot.

It seems to me that if you did not modify the page and the image was not appearing on the date you got the letter, you would want to archive the html of that page on the date you got the letter.

Obviously, you can't archive things that currently no longer exist. If you were sued, what you do know, how you know it, and what evidence you  have to corroborate what you do know is the sort of thing that would come up in testimony.  That is: it might buttress you case to say that
(a) You believe you never uploaded anything of the sort and if you ever did, you certainly don't remember it.
(b) You have an archive showing what existed on the day you received the letter and that archive showed that the image was not on the page on the date you received the letter.  (That is: before you modified it to comply with their request.)

I guess what I'm thinking is that instead of merely trying to focus on whether you think there evidence is weak, think about what counter evidence you could have to show that you didn't copy that image.  You run the site. You can take screenshots, grab html and so on.  If your own screenshots, html and so on show the image did not display, that's in your favor.  If your memory is fuzzy, you really ought to at least show that the image does not display at your site. That would than put the other side in the position of having to advance a theory of how the images does display in their screenshot.

I think it's the difference between civil and criminal that I was trying to understand.  I wanted to determine if evidence needed to be beyond reasonable doubt.

No; beyone reasonable doubt is not the standard in a civil suit.   Watch "The People's Court".  You'll see there is no balance in favor of the defendant or the plaintiff and formally it's absolutely the case that preponderance.  The person who has 51% of the evidence in their favor is supposed to win.  That said, I'd say the defendant has a little edge.  If the plaintiff makes a claim and provides zero evidence other than saying "X happened".-- and I mean absolutely zero-- and the defendant just said "No. X didn't happen" providing zero evidence it didn't happen. The judge rules for the defendant.  Notice that's just "He said; she said." but judges do want plaintiffs to show some evidence before dragging someone to court. 

But if you watch a while, you'll also see that the plaintiff is not expected to have flawless evidence.  Plaintiffs will come in with photos, and judges look askance at defendants whose only counter evidence is "ever hear of photo shop?" Yes. Photos can be faked. But if the plaintiff has a photo, and testifies that they took that photo and it is not faked, that's evidence.

All in all, it's best to have archives to show what you can that might cast doubt on their "evidence".  So: for example, if you were to look at their screenshot and your html, find the element that seems associated with the spot where they show the image, discover that element is embedded javascript for an ad, then you could pretty confidently say;
(a) I don't remember ever uploading or seeing that image.
(b) You can see that spot where the image displays corresponds to javascript from an ad. That is: it's hotlinked. You could explain how the ads work (many judges surf the web, so they would understand how google ads and other similar ads work.)
(c) You would cite Perfect 10 about hotlinking and so on.

In this context, if you had an archive of the state of the page at the time you got the letter, your position would be stronger than merely saying "screenshots aren't proof".

I have not heard anything in response from them yet.   If I do, those are things I am hoping to ask for prior to a trial so that they know I am serious and this is not going to be easy money.  I don't know what they will volunteer initially if they are trying to get a payment out of me.  I will attempt to feel out the situation if we do have further contact.

If they are like Getty, they will volunteer nothing and just maintain that they are right and you are wrong, explain that copyright exists even if they didn't register (which is true, but still not responsive to why you would want to see the registration) and make it sound like they really believe they are the judge, jury and executioner, that they don't have to show you anything at all and that you have to pay.  And it's true that until they sue, they don't have to show you anything. But it's equally true you don't have to show them anything or pay them anything and so on.

However, should they sue, you get discovery, you both present your cases to a judge. The judge decides.

I have been discussing on another website as well.  This morning I read a comment from somebody who said the notice he received included screen shots.  His CMS sounds like WordPress, in that it must create different image sizes and thumbnails and then push them out to various pages based on categories, tags, post listings, etc.  He said a screen shot of each image, including thumbnail sizes was included and each was listed as a separate infringement.  Do you happen to know how that factors in if it would go to trial?  Could each size and use truly be counted as a separate infringement?  That is where I would think it would be essential for them to have the html on file because then they could compare image names in the html.

Wordpress does create images in various sizes when you upload. That's its default behavior. As its the default, and it creates default names, a bot that finds one image could be programmed to find all the images.  Technically, it's copying   '.jpg/.png/.gif' file to your server and displaying the image file is the infringement.  That fact that it can be loaded without loading a page means that when it comes down to brass tacks, I think the proof of infringement is showing the url of the image or images, not the page (or pages) in which the images is embedded. So, yes, it's possible that each of these images might be an infringement in and of itself. But a judge would have to decide on on that.  If your friend gets sued, he needs a lawyer to guide him on whether it's worth arguing that it's only 1 infringement, finding precedents, discussing the issue of 'de minimus' and so on.    Whether any of your pages display the images might be considered important by a judge-- I just don't know.  But at least hypothetically, each size might be an infringement.

141

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA

« on: November 25, 2013, 11:39:24 PM »

How effective is HTML or a URL when presented by them?  I feel that much like a screen shot, those things could be falsified.

Sure.  Things can be falsified. People can lie. People can be mistaken and so on.

But a judge would take testimony, listen to both sides. If an actual human at BWP said that they grabbed that html, that would be 'evidence' because testimony is 'evidence'.   The judge would decide how credible he found the source, and weigh it against other evidence (and testimony) you might supply, but it would still be evidence. And you have to recognize that all evidence has some level of imperfection, so a judge isn't going to necessarily decide that all evidence has to be perfect before it 'counts'. Lots of evidence is imperfect, but one listens to a bunch of evidence before judging what one thinks probably happened.

Collecting together as much evidence in your own favor and from as trustworthy sources as possible is useful.  This might be useful
http://www.webcitation.org/  It's at least 3rd party, and you could testify you created the archive and it matches what was online.  Could it be spoofed? Maybe. But the current state of the page is useful information for you to present it's better to archive it than to not archive it.

When you say that evidence can be ambiguous, is that in favor of the accuser?

I don't know.  It probably depends on how flimsey it is and precisely what features are ambiguous.  With respect to the wayback: it never stored images. It stored html so it's a record of the html.  In fact, you did host the image and swapped out a different image at the uri in the wayback html, the wayback version of the page would <I>now</i> show a different image.  So, to some extent, the wayback is not especially good for the accuser-- unless they have humans filling out affidavits indicating that they views the display and html and verified that the screenshot of the way back is an accurate representation of what the wayback displayed on the day that specific human viewed the page.  Also, the accusor probably needs to store the html when taking the screenshot.

Besides that: if you weren't permitting hotlinking, images stored on your server aren't going to show on the wayback version of the pages.  So screenshots of the wayback aren't going to help BWP. They are goign to need html, and collect a file of stuff to persuade the judge.

As for the more general question of who ambiguous evidence favors:  would be a civil suit, so the judgement is based on balance of evidence-- that is which person the judge believes more-- so pretty much 51/49 calls favor the person on the '51' side of the balance.  In contrast, a criminal trial is beyond a reasonable doubt. 

That was my thought.  Every day longer it goes, the more likely it is that evidence will be destroyed.  That is also why I'm trying to figure out what they might have.

If there is something in your favor you need preserved, preserve it. Some free online archiving systems exist (www.webcitation.org). You can get them to archive pages that show current conditions at least.  If archives of current pages favor you, archive them. And make sure you archive each necessary bit separately. (Example: it will archive whatever page you ask it to. If you need to archive the uri's for images to prove they were hot links-- do that. And so on. I know you are saying you just don't know where the image ever was-- but archiving the page with no image on it would be useful.)

Again, what I was thinking.  What types of things do you think someone might be forced to admit?

I don't know. I assume during discovery, they would ask you to say whether the image was hosted on your machine. If you hosted it on your machine, you would likely need to divulge that. If you don't know, you don't know and you get to say that. Or, if you know it was hotlinked, you get to say that.

Though-- actually-- I'm not sure precisely what limits exist on discovery. I know they can only ask you relevant stuff-- but the judge would likely deam questions about hosting the image relevant.

Likewise, you could ask them to provide you any html they had, what logs they have, documents pertaining to copyright registrations, contracts with authors and so on.  They can't just keep that all a big super dark secret.

It might be possible they can call you to the stand and ask whatever relevant questions they want.   I don't know how the 5th amendment comes in here-- but this wouldn't be a criminal trial and nothing you did was criminal. So really, the 5th probably doesn't protect you at all.  I'd guess you'd probably have to answer questions asked in any trial.   But really, you need to ask an attorney how broad discovery might be.

Bear in mind: discovery can only happen after the file a suit, pay some filing fees and so on.

It's odd that so many are filed and some are going to court because that doesn't seem to fit the usual troll model.

It's not the getty model.  But that doesn't necessarily mean it's not the model.  Porn trolls have gone to court, though with some rather 'interesting' methods.

It is multi-author.  Each does have a separate account.  There are also about 2,000 registered subscribers.

Basically, that's what you would tell a judge if your defense was that you didn't upload. But your lawyer would have to advise you whether that defense would help.  (Ordinarily, this is precisely the situation that DMAC protects you in.  That said, my impression of what happens if you don't have a DMAC agent is 'we don't really know'. That is: DMAC protects you if you have an agent. But.... are you liable for someone else's uploading otherwise? Dunno.  Congress thought we needed DMAC to ensure protection under some circumstances, but that doesn't necessarily mean that people were unprotected pre-DMAC but they certainly might have been unprotected.  But once again: that's the sort of thing good IP attorney would advise you on.  )

142

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA

« on: November 25, 2013, 07:07:12 PM »

The site is not a commercial site and is not for generating profit.  Just a hobby.  It is a self-hosted WordPress site.

I have been fighting bots, crawlers, and spammers from very early on.  The traffic from automated things brought the site to an absolute halt for a period of about a full month.  I implemented and experimented with a number of things from Akismet, to Bad Behavior, to Wangguard.  Even though many of those are meant more specifically to stop spammers, it did well to reduce the traffic enough.

I recommend ZBBlock because, among other things, it triggers before wp-config.php loads. Standard plugins trigger after. (There is no alternative.)

I wonder, are there crawlers that also spoof the referrer?  If so, is there a solid way to fight them?

Yes. There are at least two classes:
1) Those that will spoof the root of your site. (So, if you are at http://whatever_domain.com/blog/blahblahblah , the bot will claim it came from http://whatever_domain.com/ .  Sometimes this referrer makes sense, some times there is no link from http://whatever_domain.com to http://whatever_domain.com/blog/blahblahbla . ) 

2) Those that will spoof a site they how they can lure the admin into visiting.  These can be porn, selling diet drugs etc.

 I am fairly certain I have done referrer spoofing for other projects in my work life.  It's also fairly simple if I remember correctly - about as easy as spoofing user agent.

My questions are more along the lines of what happens should this go to court.  For example, if PicScout is involved and it finds an infringement, is that the end of the line?  Is it trusted as an authority and the data it gathered is correct?  I've been trying to find cases from the past and I can't determine what would be considered actual proof of infringement.

Among other things, they need to prove to the judge (not just themselves) that you did infringe. The reason it's difficult to give examples of what is sufficient is this could vary a bit by judge.  The big question to ask yourself is if you were a third party, and heard the argument and counter argument would you consider it proof.

I can tell you if I was the third party, I would not consider a printed screen shot sufficient to show proof. The reason I would not is one cannot tell any of the following:
1) How the screenshot came into being.
2) Even if we figured out how it came into being, you can't tell whether the image is hosted on the server or hotlinked.

That said: if you get sued, any trial will be preceeded by 'discovery' and you would also be asked what you know about the image.  If Getty has the screenshot, and when asked your answer is that yes, your site displayed that image and yes you hosted it and yes, you personally uploaded it, that might be proof of infringement.   One reason is that the facts would not be disputed.  And bear in mind: Lieing is perjury. Refusing to provide information to the judge tends to look like you did display the image and so on.  So, if you did host the image and so on, recognize that this is likely to be known to the judge.

But beyond that: remember that what Getty shows you may not be all the evidence they have. They have a 'template' letter.  That letter does not show the uri of the image, it does not show html of the page and it does not name any human being who viewed the page and who might testify that he took the screenshot and saw the display with his own eyes. But this doesn't mean Getty does not have such evidence. It only means they didn't reveal it to you in their letter.  (Mind you, they may not have it. And if they don't they would likely be reluctant to file because they don't know whether you hotlinked or not and so on.)

If bots like that are not considered authoritative, then what is?

Human testimony added to teh bot info could be considered authoritative.

I have gone to some length to have my site removed from Google and the Internet Archive completely.  Google has responded very quickly and it seems that within hours it has been completely unindexed.  The Archive is taking its time, however.  Are these things used if evidence is needed?  I'm trying to clear myself on every front so that it shows I have made a good effort to completely clean up on my end.  I'd also like there to be as little record as possible.

Internet archive could be used.  One again, evidence can be ambiguous especially with images. 

If records and things would end up getting subpoenaed, then what would be gathered?  And what is the likelihood it would be able to show guilt, intent, etc.?

Depends what exists at the time of any subpoena, right?  They can't  demand something that does not exist be re-created. But bear in mind: They may have evidence they need. You don't know.

My site is hosted with HostGator.  I can only access raw access logs within the last 24 hours.  I have my site set not to archive them, and if they are somehow archived, I have it set to delete them at the end of the week.  Do web hosts usually keep logs longer than this that you know of?  I read through their terms and they state that they keep the minimum amount of data possible.  I'm just wondering how much this is and what it shows.

My guess is they don't keep logs any longer than you do. Storing that data is a nuisance and business cost for them. The real issue is what BWP has already collected and/or what you might reveal or be forced to admit.

The WordPress theme I was using also generates 7 images when it crunches a single image that is uploaded via media manager.  This turned out to be a lot of files over the last two years.  As a result, my account exceeded 100,000 inodes and was approaching the 250,000 limit (I have about four or five websites on the account at any give time).  Because of this, full backups of my site were not being made for at least 6 months to a full year.  Since receiving the complaint, I have gone crazy with house cleaning and my site is well below that level of inodes now.  I guess I'm wondering if there is any physical or recoverable proof that any file has ever specifically existed on my hosting.  It seems that hosts retain as little as possible to achieve DMCA safe harbor.  How does this play into all of it?

If it's off your server, don't worry about future discoveries.  Only worry about whether they saved html and so on.  Bear in mind: These companies tend to be very slap dash and count on scaring people. That said, we don't know with BWP.  There are a shit was of cases in the pipeline, but we don't know what ultimately happened.

Also, the day I received the complaint I did some database maintenance.  This involved putting up a static page, pulling down a copy of the database, updating it locally, and then putting it back.  I have since created a new database with the modified data and switched to it instead of the old one.  The old one was completely removed since a newer more optimized version is in place.  I'm wondering, how much, if any, that would affect the ability to find past entries or versions.  Or if it even matters.

Honestly, I think as long as you don't have a stored version of the old database, you are fine. Hostgator isn't going to be set up to sift through a mountain of data and they might pushback if asked to do so.

I know WordPress does not keep detailed logs of logins and posts.  So I basically have no records of IP addresses or access at that level.  Is it possible to match actions within WordPress to raw access logs - for example, somebody logging in, making a post, uploading a file, and then publishing?  If it is not, am I basically held responsible as the only user of the site, regardless of whether I actually am?

Are you set up multi-author? With each registered person having their own login/email/password?  If yes, you must have a roster or registered authors or contributors. Blog posts would be filed under the authors who wrote them. It's true WP won't keep the IP they used when the wrote that post, but it does keep track of the author of a particular post. (At least my WP does.). Also comments are listed under the commenter. IPs are saved for comments.

143

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA

« on: November 25, 2013, 11:38:27 AM »

Hi,
As for tech stuff:
Picscout related: It is very difficult to block the picscout bot with any degree of certainty.  It has become more difficult with time because it's easy for companies to change IP ranges, spoof user agents and so on. There are general measures you can undertake to block many bots and doing so may inhibit fast scraping and also, by reducing the amount of crawling, prevent picscout from finding any existing or future infringements. But really, it's hard to block picscout these days.  If you want to stop crawling bots, it's best to start visiting some place like spambotsecurity http://www.spambotsecurity.com/ and learn how to inhibit bots more generally.  You will also need to pick your favorite method for slowing bots, and which method you chose would affect what you do (and whether I could answer questions.)

That said: it does help to
* block many useless crawlers and visits from servers (e.g. my blog is served by Dreamhost. Any visits from IPs owned by dreamhost are not people. They are computer programs doing something. That something might be legit or it might be a crawler or something. But it's not people.)
* refuse to serve images to anything with a blank user agent. (One picscout tool used blank user agents. There really is no reason why you should permit this.)
* do not permit hotlinking of images you host.

That said: in the end these steps really only make it more expensive for something like picscout to find images on your site.  I do some of them but my main motivation is not to block picscout but to reduce server load. (I block China for that reason too.) And the difficulty is that the more stuff you block hoping it's picscout, the more often mistakes may block people. (The question then is: do you mind blocking those people. Maybe you do; maybe you don't.  If you have a commercial site selling groceries and delivering only to the US, it might be just fine to block China-- and in fact limit visits to the US.  But other commercial sites might find that problematic.)

Also: do not make the mistake that technical steps to block bots could help you much in the event that picscout does find an infringement and you go to court.  My guess is it won't.

Now, if on the other hand you have other technical questions, we can explore those. For example: if you run a forum, we've already noted that you need a DMCA agent. That's not 'tech' stuff. But you might also want to consider tweaking your software to restrict uploading images to your server and only permit hotlinking.  Code to permit you to chose such things may be a pre-coded choice in your forum software, or you might need to find an add on, extension or custom code something. There are advantages and disadvantages to permitting uploading vs. hotlinking strategy. ( Permitting uploading means someone might upload a copyrighted image.  Also: letting people upload images can often be a way to get hacked. If you permit this, you do want to leran about ZBblock.  On the other hand, hotlinking puts you at risk that someone might hotlink an innocent image. You approve it. But a few weeks later the substitute porn. etc. So, you aren't hacked or involved in a copyright violation, but your visitors might be pretty offended by being served porn. )

144

Getty Images Letter Forum / Re: Got my first letter, yay.

« on: November 21, 2013, 04:27:17 PM »

I'm not sure partly because I'm not a lawyer and partly because we haven't discussed every possible thing that can happen with a corporation.
But I think if a corporation is dissolved, a private party can become 'on the hook'.  For that reason, if a corporation currently exists and you get a letter, you are advised not to dissolve the corporation.

But I'm not sure what happens with a very, very old corporation.  Presumably, if a corporation dissolved 3 years ago, it also took down its web site?  Or transferred ownership to someone else. If a corporation took a website down 3 years ago, then dissolved, it's a bit difficult for Getty to pursue a copyright issue because the statute of limitations would be up for anything they could have found on the web. However, if the ownership was transferred to someone else, and that person kept things operating the new owner might be liable for any continued display of copyrighted materials.  But this would have little to do with the old corporation, it would be the new owner. But really, to get an answer to the hypothetical about 'what about a dissolved corporation' we might need to know other details.   

145

Getty Images Letter Forum / Re: Got my first letter, yay.

« on: November 21, 2013, 10:38:17 AM »

It seems the image is registered. I assume you mean individually registered by the photographer? If so, that does suggest a photographer who is in a different class from most photographers represented by Getty, few of whom bother to register their photos.  I'm pretty sure that up until now, no one who has posted here has been discussing a photo that was individually registered. (e.g. in my case, i got a letter for photo that getty considered 'registered' but which was included in a mass registration that didn't even cite the photographer's names-- and in particular did not cite the one who created the photo in question--, which the photographer's heirs were selling in multiple venues and which, in any event, I had hotlinked. In other words: a case Getty would have lost for multiple reasons! )

I think further up thread you said your company was not incorporated yet? So, the name is just a place holder? If so, whatever the characteristics of your company, Getty will need to sue you, not the company.  Because legally the company does not exist, never had existed and so cannot have 'done' anything.  (I also don't think this program cares if a company is "disruptive". So don't worry about that.)

It's still only one photo. But the characteristics might put you at a slightly higher risk that others. I would suggest that if you really are starting a company and you need this off your mind, you should consider an attorney.  Your case does fall under Oscars letter writing programs, but if you have a competent IP attorney, use them. 

146

Getty Images Letter Forum / Re: Got my first letter, yay.

« on: November 20, 2013, 10:50:01 AM »

I was curious if the photographer can "drop charges"? I know, and have read, to not contact them directly but we may have a common friend, actually.

I would suggest that on the balance, it's unwise to contact the photographer at least for now.  If you do not know the photographer yourself, the photographer may take precisely the Getty view on infringement. Many photographers vehemently dislike people displaying their photo in any way, shape or form without licensing and will side with Getty on this. 

But worse: one of the difficulties for Getty is that they sometimes have flawed contracts. But this is not a problem for the photographer should s/he decide to sue.  So, it is not in your best interest for the photographer to learn details about this issue. You might increase the probability of a suit rather than decrease it. Plus, you could get into a time wasting argument with an actual person, and that's counter productive.

The time to explore whether the photographer would give you an out would be after Getty actually files a suit (which they probably won't). But even then, it might remain unwise for you to contact the photographer.  Or at least think carefully about what you are going to say to the photog if you do eventually decide to contact him.  Do you want to suggest you pay him a license-- provided it's dated retroactively? Settle with him directly? And so on? And before doing that, find out for sure how that affects Getty's right to sue. If it doesn't affect it... well... pointless to contact the photog.

What might be better is to do the same things one suggests when Getty contacts you at all:

1) check the US copyright office to figure out if this photographer regularly registers his photos himself or whether Getty named him specifically in any registration.  Many photogs not only do not regularly register their phttp://extortionletterinfo.com/forum/Themes/flagrantly_20g/images/bbc/italicize.gifhotos but many have never registered any photos.  If this photographer does not register his photos, it's possible that Getty still will also not have done so properly, and the photo will lack registration. (In the past, Getty definitely had flaws registrations relying on trying to get courts to view registration of 'collections' and applying to photos individually. They now know that method is flawed so it's possible they have remedied this, but if they  have, we don't know this yet.)  Specifically: if neither the photographer nor Getty registered the photo  before an infringement occurred, the judge cannot and will not levy statutory damages even if the judge finds an infringement happened.  This dramatically affects the amount that Getty (and the photographer himself) could possibly collect in a suit.  (The US copyright office search tool can be found using google.)

2) See whether this image is heavily used already (by googling.) This would not clear you, but might matter if someone was alleging they lost tons of money due to your infringement.

3) Try to find out if the image is licensed through multiple venues. (Maybe the photographer sells the images himself? If he does then Getty may be barred from suing on his behalf. They need to have an exclusive license to sell the images for him-- which means the photographer can't be permitting anyone else to sell them.)

4) Oh.. check whether you only hotlinked (i.e. included html to display an image hosted by some other party)?  Or did you host. (Hotlinking is not copying according to the 9th circuit. )

5) Think a bit about whether your use might not have been fair use anyway. ( If it was the top banner of your template... no.  But if you were discussing something and it was topical... maybe. Fair use can be a tough argument, but it exists. And Getty-- already unlikely to sue-- is even less likely to do so for cases that might suffer more flaws rather than fewer.)

Put all these in a file, and think about whether the upside and downside potential if Getty did sue. 

And all the while: Bear in mind Getty is unlikely to sue over 1 image embedded in a blog post.  AND now that they sent you evidence, you know the statute of limitations will close out on the date when that letter is dated. 

Whatever you do: don't rush.  Avoiding communicating anything to your detriment. (Heck, you don't need to communicate much in your favor if you don't want to do so. So if, for example, you hotlinked, you could either tell them, or just put stuff in your file and laugh everything they threaten to sue you.)

Lucia

147

Getty Images Letter Forum / Re: Need an opinion on a letter I received.

« on: November 16, 2013, 10:24:04 PM »

just stumbled upon this one:

http://www.ndtexblog.com/wp-content/uploads/2013/08/BWP.pdf

Bizarre. They are suing softlayer over images here: http://173.192.126.227/about
I bet you softlayer has a DMCA agent.

Update: Heck, so does the customer web site
http://173.192.126.227/contact/copyright

148

Getty Images Letter Forum / Re: Need an opinion on a letter I received.

« on: November 16, 2013, 10:13:08 PM »

Question, would it be un-wise of me to call the firm directly to see how much they are requesting for the settlement?

It would probably be very unwise for you -- the untrained--to call them directly. 

149

Getty Images Letter Forum / Re: Need an opinion on a letter I received.

« on: November 15, 2013, 10:44:20 PM »

It's certain that the "untrained" (i.e. nearly any letter recipient)  should not communicate  by phone or email.  Most people are used to volunteering information-- which actually is beneficial in 99% of life circumstances where you are operating with people who are acting in good faith. But it's not beneficial if you are operating with a copyright troll whose business model is to get you to volunteer stuff so that they can create a better legal case.

 One of the advantages of getting a lawyer early is avoiding saying anything that could be to your detriment should this guy sue.  Lawyers tend to know what not to say and also how to request information that you have a right to request under the circumstance. And the letter writer (i.e. troll) knows they are dealing with a lawyer, which might make them move to a tree with fruit they think is lower hanging.

150

Getty Images Letter Forum / Re: Need an opinion on a letter I received.

« on: November 15, 2013, 06:59:04 PM »

ideanj,
I don't know! The trouble is this guy seems different form Getty.  With Getty, Oscar's program has consistently worked. Part of the reason is Oscar's letter provides the person who hires him a good basis for dealing with Getty if they ever did sue.  But another part of the reason is that Getty almost never sues.  Their business model is to pester people; presumably some of those people fork over $$ either out of fear, or being work down or whatever. So, one of the main things that happens is that Getty -- who rarely sues-- becomes legally compelled to communicate through Oscar.

But I tend to think that yes, it would be wise to hire Oscar if you can.  That said: the getty letter is a getty letter program.  So this other guy might end up being a special case and Oscar might need to think carefully about whether he extends his program.  After all, Oscar does have to keep his work load under control so as to properly represent his other clients, and this guy might be a bit of a wild card. 

Robert-- Has anyone whose come to this site been sued by this guy?  I don't want you to wrack up to much money at pacer, but does he ever win? (The little I found showed him losing.)