Messages

1381

Getty Images Letter Forum / Re: Glen Carner's First 8 Questions for Matthew Chan

« on: June 02, 2012, 03:17:13 AM »

Excuse me, Glen. Thanks for incorrectly interpreting what I want others to do. Everyone was able to freely respond as they saw fit. Quite frankly, I am surprised that as many people jumped in given that your post was directed specifically towards me. But the community including Oscar decided to jump in regardless. They had something they really wanted to say to you.  You should be flattered over this.

A good online community leader tries to let ideas and thoughts flourish as much as possible. Everyone voluntarily participates as they see fit. We allow as much freedom of thoughts and ideas as possible, including yours. I try to lead by example.  People, including Oscar, were willing to provide their insights and time to you for free. I wasn't. Why should I? You want MY thoughts and MY ideas to YOUR specific questions? You have to pay ELI a consultation fee. If ELI was a charity service (which it isn't), you and your peers would be last on the list for that charity. I openly disclosed my fee to you if you were serious. You obviously didn't like it.  No surprise there. Maybe $100 fee would have been more to your liking, instead of $1,000?  Many letter recipients pay ELI $50 to ELI for 30-minutes of my time on the phone and everyone has been happy having done so. Others have contributed other dollar amounts showing their gratitude of the work ELI has done. 

With you being on "the other side" walking in and expecting my best responses for free?  Are you kidding me? What have you done to get something for free? That is part of the ongoing entitlement mentality you, your peers, and photographers have. You are so focused in your little world and mindset, you can't imagine any other options.  Fine by me. It's your industry like newspapers going down the tank.

I have provided PLENTY of feedback to the stock photo agencies over the years. I know this because plenty of adjustments by your peers have been made over the years. They were smart enough to read between the lines.

I don't know why you seem confused as to my position on things. I value my time and I pick and choose what and how I respond.  I could have written this long, elaborate industry thesis of what I think should happen on your side. But to what end?  I didn't start ELI to help the stock photo agencies. I did it to help myself FIRST which expanded to helping others, specifically people who get these extortion letters. I am good at what I do and this isn't my first rodeo.

Just because you come to the ELI Forums from "out of the blue" and I promised you reasonable freedom of expression and some degree of "protection" from abusive behavior doesn't suddenly mean we are going to roll out the red carpet for you or embrace you. Respect is earned, not given especially with you and your industry's terrible track record. Quite frankly, you are being tolerated by many. People don't trust you or your peers. The consensus from what I hear is that you are here for self-serving purposes, nothing more.  You are here because ELI has become a thorn on your side which finally forced you to do something about it. For me, I am neutral.  I can see pros and cons to your participating here. I like it because it has set the ELI Forums on fire again.  The energy is up.  Participation is up. The downside is you are getting "free air time" and access to our community on our dime. For now, it balances out. As I said, this is an experiment to see where it goes.

Remember, no one asked you here. You are in "our house". We tolerate you. So mind your manners. You want to make little snarky remarks about me within the very community I started?  Fine, but everyone knows I hit back. Don't be surprised if others hit back also. You don't like my or my community's attitudes towards you and your ilk? Well, you knew you were walking into hostile territory. No one promised otherwise.

You want a "freebie"? Don't fool yourself that because of some of your lawyers haven't shown up on ELI doesn't mean they are brilliant. It means they got lucky, I promise you.  They dealt with a letter recipient who has not discovered ELI and what we do.  We can't save the cheap, lazy, spineless, or the ignorant. If they feel comfortable being passive, hiding in the shadows, and ultimately paying these extortionate amounts, we can't stop them.

We know who we can help and who we can't. We do what we can for those we want our help. ELI is the leader in reporting, fighting, and defending copyright extortion letters from stock photo agencies and photographers.  Tame or not, sanitized or not, they will all get reported. Rest assured that the lucky lawyers who have flown under the radar thus far will get found out if they send out enough letters. It is statistically inevitable.

As long as the ELI community continues to financially and morally support us, we will continue on.

Oscar and the rest of you took a considerable amount of time responding to that and I'm sure Matt feels that you would have been better off watching the grass grow but thank you.  There is already one change that we can make with HAN's attorneys based on your statements.

Some attorneys we work with have never have shown up on ELI and I think that has to do with many of the points mentioned.  Most were experienced and choose the cases they accepted carefully.  I want to go through this thread again when I have more time and will likely be steering anyone we work with in the future here.

The idea of using attorneys less is still my goal but I think we can (and will) play a more active role in what they send out on our behalf based on these points.  When HAN hires an attorney using current tracking systems, they are provided with a retail price based on the use and told to do the best they can.  We don't have access to what is a more appropriate letter and what is extreme under the law.  There seems to be very little standard in recovering revenue for photographers which one would think would have been standardized to some degree.

I look forward to learning and implementing more.

1382

Legal Controversies Forum / Re: Another Lawyer Feeding Frenzy

« on: June 01, 2012, 05:37:15 AM »

This forum is specifically for interesting miscellaneous legal cases and controversies.  No problems on what you posted. Feel free to continue on.

1383

Getty Images Letter Forum / Re: Glen Carner's First 8 Questions for Matthew Chan

« on: May 31, 2012, 10:16:08 PM »

NOTE: It appears Oscar Michelen and I were typing at the same time but his reply made it to the forum before mine. My reply was made without reading Oscar's reply.

My answers will be brief. I don't give provide comprehensive answers on a "silver platter" because so much has been discussed before. I don't even do it for extortion letter recipients. If they want more, they have to pay for my time.

For you, being on "the other side" you would ABSOLUTELY have to pay ELI and it would be a fairly sizable consultation fee. Somewhere in the $1,000 range direct to ELI for one hour with me.

#1 - Have you ever seen an attorney letter that you felt was reasonable and appropriate?  Can you provide a copy and who was the attorney?

Yes, I have. No, I won't provide a copy.

#2 - Are there any attorney letters that don't get posted on the ELI website because you "approved" of them?

Every letter that is new to me gets posted.  Even the tame and sanitized ones.  The only letters I "approve" are the ones I write for myself.

#3 - Under what circumstances do you feel an attorney should be used to settle a copyright claim for a photograph?

It depends.  Too much to get into here. You will have to pay ELI a good consulting fee to get into this assuming I even want to focus my brain on this.

#4 - Do you make any distinction between a person downloading a song for personal use or a business using an image to make profits?

Yes, I do.

#5 - Do you have any suggestions on how "for profit" use can be compensated after the image is already being used if you disapprove of the current law and method?

Yes but you won't like my suggestions because it is too radical for your industry. This is consultation you will have to pay for.

#6 - I have heard you mention $200 for innocent infringement claims as a settlement amount.  If a specific photographer agreed to only ask for this amount in the recovery, would you support that?

That is too simplistic a view. And what does it matter if I support it or not? You don't need my permission.

#7 - If you could change one small thing that about how agencies collect money retroactively for commercial use, what would it be?

I don't need or care for any changes. It is immaterial to me because I know the game your industry plays. I boycotted stock photos and I recommend the same to others. If I was "forced" to buy a stock photo under duress, I know what I need to do to protect myself. I personally think most photographers are too lazy to learn the business side so they become overly reliant on agencies. I tend to think most of the stock photo agencies are fairly sleazy nowadays with their extortion letter program so I could care less about them. You and the other agencies are only coming around simply because ELI has become a large thorn, not because of any "goodness" or contriteness.

#8 - Do you know of any agency, photographer, or author who is using a recovery method that you felt was acceptable and what was it?

You are still missing the point. You are still focused on collections and "recovery" and that is a big part of your problem.

1384

Getty Images Letter Forum / Re: Got my letter today... UPDATE

« on: May 31, 2012, 09:42:50 PM »

Loudmouth, eh? Thanks for calling us that. 

That is why the spineless keep getting harassed. They are too cheap to pay for good professional assistance and end up going around and around where the letters never stop. Unless someone is an exceptional letter-writer, it is easy to see through the people who bluff.

Regarding "making an example" of one of us, I don't think that will happen. Oscar thought it might happen to me 4 years ago for starting ELI up. I wasn't sure then but I was prepared to take action if it did.

 The collateral damage could be extremely high if they hit the wrong person like me or BuddhaPi.  I think it's safe to say that BuddhaPi and I think alike and we would tag-team it.  I think it would be dangerous going after us because there would be a "scorched earth" strategy executed and there would be many "targets". I have never been forced into using several other "tools and strategies" at my disposal and I hope not to.

If people thought we have done a lot of damage and inconvenience by shining the spotlight on certain people, imagine if we actually use paid services.  Thus far, everything we have used have primarily been through "free" information in Google.  We have, thus far, revealed "surfacy" info, not the juicy stuff that we can buy.

There is a pattern I that I have noticed emerging. It seems like the loud mouths are the ones that get ignored. You should search out the stories behind Matt, me, Buddahpi, SG, Peeved, Lucinda, I'm sure I'm forgetting many. The people that are vocal seemed to get ignored. Of course since the trolls tend to monitor this site, I guess now they will feel compelled to make an example of someone.

1385

Getty Images Letter Forum / Re: Matthew Chan's First 10 Questions For Glen Carner

« on: May 31, 2012, 09:12:28 PM »

Inline comments

I do think that Carner has a reason for posting here.  It's definitely PR and marketing.

I prefer to think of it as "damage control."

H.A.N. is going to ditch that lawsuit.  So, now H.A.N. must rely on the "goodwill" of people to pay up.  Hence, the PR campaign.

HAN can't "ditch" the Aloha Plastic Surgery lawsuit anymore.  As I've said many times before, the best way to get leverage back is a countersuit.  A countersuit has now been filed.  Now that someone has done this, other letter recipients can learn from that example.

Someone was smart enough to listen and wake up to this fact. Maybe more Masterfile letter recipients need to get a clue here.

1386

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: May 31, 2012, 09:04:34 PM »

The trouble people get into is that people are looking for "guarantees" and "absolutes" on the cheap. I never said they would NEVER get sued. I said it is very unlikely to get sued over 1 image.

They don't want to pay the settlement, they don't want to pay for Oscar's Defense Program, and they don't want to pay in effort and time to get educated.

I don't have a lot of sympathy for the lazy, cheap, and spineless letter recipients. They want someone to save them without them putting out anything. No matter what you say to them, they are irrational. It shows me how naive they are.

I made the mistake of interacting with a Masterfile letter recipient last year. I reached out because I was interested in seeing the newer Masterfile letter.  I remembered how the letter recipient was trying to barter with me for "services".  He would "let" me share a copy of his letter if I could give him some suggestions to talking to him.

I thought I would invest a little bit of time because I had never directly dealt with a Masterfile case. It was one of the dumbest moves I made dealing with the guy.  Here he thought he was doing me a favor when I was really trying to test out some of my combat theories.  He had very little to lose and everything to gain.

Well, despite what he said to me, he was a squirrel and kept worrying about retaliation, what his wife thought, and what Masterfile would do next. Ultimately, I stopped talking to him because it was pathetic and I didn't care anymore.

He never got the concept that out of several hundreds if not thousands of letters, even if Masterfile filed a couple of lawsuits, statistically, it is less than 1%!  This assumes you do nothing.  If you handle it properly, you can reduce the odds even further!

To people who want a "guarantee", be prepared to pay MF directly or hire Oscar to negotiate for you. Even then, you will pay his fee plus the negotiated settlement amount.

Now, no newbies gets a "few minutes" of my time. If you don't make an ELI Contribution, then you are stuck with reading the forums and blog posts.

If you have no stomach or backbone for this and are too cheap to pay for professional assistance, don't even try to pretend to have the backbone to represent yourself.  People like me (as well as Masterfile) can see you are bluffing and it would make more MORE want to target you, not less.

The rule of thumb where 1-2 images is not likely to get a lawsuit (even if 10 lawsuits were filed this year) still stands as far as I am concerned.  I know statistically, it is still less than 1%.  If that isn't good enough and you think you are that "special" to win that lawsuit lottery, then pay up and stop your suffering. The rest of us can find some middle ground using the information we have provided over the years.

Thanks for doing that.  So much for not suing over 1 image....

This is true, this is no longer the best rule of thumb. I think it's more about the amount of the claim than the number of images or infringements. Like Matthew commented on another thread, it's all about risk analysis. They're shooting for $30,000 in this case, so the fact that it's one image doesn't change the economics outlook for Masterfile's legal henchmen.

I don't think they'd go to court for less than a certain amount to make it "worth their while". There are also non-monetary considerations, such as the possibilities of loss of face, damage to their brand, financial blowback and setting bad precedents for their "business models". They probably go in knowing fully well it's likely to end up in a settlement that pays them enough to keep their current posturing and continue with the letter program.

They are definitely sending a statement about the former "never-for-one-image" rule. Like Matthew says, they can take people to court anytime they want and they want us to know that. However, as Matthew also says, the question is whether they can make it stick.

1387

Getty Images Letter Forum / Re: Matthew Chan's First 10 Questions For Glen Carner

« on: May 31, 2012, 03:48:23 PM »

 Standards of practice for the C & D letters was actually a thread that I hope to build on here one day.  Its not enough to tell the attorneys, "Hey, I think your letter is this or that."  In all honesty, I don't think you guys dislike the attorneys, I think you dislike their letters which absolutely can be harsh. 

That is an understatement. Many are extortionate.

I think we can shape the conversation for IP attorneys in general as what are best practices should be in dealing with these matters when sending a letter.  What should be contained and what shouldn't be. 

You are a little late to the party. It's already happening. Go to our ELI Documents Library. Quite a few examples of lawyers adjusting their ways. They read between the lines and they follow ELI also.

What gets them posted on the ELI forums and what doesn't?

Anything I haven't seen before and have permission from the letter recipient gets posted.  We report on this subject so we post almost anything new we get.

What does the bar say as being excessive or inappropriate? 

They don't have to say anything. Anyone can file a complaint if they feel they are being wronged. The bar can disregard it if they disagree with the complaint.

It's easy to complain but you have the forum here to help shape that conversation.  Hopefully ELI has not spent so much time thinking about whats wrong with these actions that they cant come up with a list of what's right.  It would be great to point new attorneys to a constructive ELI thread or post and say, "this seems to be reasonable practice for a C & D letter regarding photographic infringement." 

Sorry, I don't think it's my job to do that. It is something you would have to pay me for. I don't give free advice like that.

Where are Oscar's letters?  Can we see one?

You might have to hire Oscar for that. I can't see him giving one for free especially if it's going to "the other side".

1388

Getty Images Letter Forum / Re: Matthew Chan's First 10 Questions For Glen Carner

« on: May 31, 2012, 03:38:19 PM »

More inline comments.

I'm here and don't be surprised if I stick around.  We have different opinions but I don't think any are invalid.  There is no "right" answer obviously.   Give me a moment.  I may post on other sections of the site as well.

No problem. Go for it.  In many ways, you may drive more traffic to the ELI Forums.

Let me get to some of Buddha's points.  First off the "trolling" issue.  Whatever the mechanism that leads to the artist getting paid for the use of his work is a priority for us obviously.  Call it trolling, collections, whatever, this is the only method currently being used by the stock photo industry to collect money on images that are being used without license.  Have another suggestions?  I would like to hear them which is why I came to ELI in the first place. 

I do have suggestions but you won't like them and I am not going to offer them. No incentive to. Sorry but like so many others, I believe in karma. Suggestions have been offered in the past but you might have to dig for them.

The biggest assumption you make is that stock photo agencies are embarrassed of doing this.  That's simply not true.  I recognize that there needs to be some method of reimbursing the artist.  I'm not saying its perfect but you say nothing about the business owner who uses the image having any responsibility what so ever.  Its always on the content creator who is at fault here and that's simply not correct or fair.

Well, that doesn't help you case. If they are NOT embarrassed by it, then I would say be prepared for the fiery reaction. I would also like to say you guys don't have the corner on content creation.  I create plenty of content.  Some of it paid, some of it free. I have had content plagiarized from me. I never had to send an extortion letter.  Oh, to clarify a point.  A C&D letter is NOT a C&D letter when it comes with a money demand.  How do I know?  I have written C&D letters and they work.

Is it immoral to call up a business and say "hello, we see that you are using our image to sell your business services and we would like to work our a fee for past use?"  I think not.  If you have problems with the law, damages or otherwise, know that CSI is trying to use less of that language and more "person to person" communications that users on ELI seem to appreciate.

Not immoral. Feel free to make phone calls. But just expect the next step which I already know.  For every move, there is a countermove. The biggest problem you have is that HAN and you have a terrible reputation right now because of your legal hounds.

Regarding DMCA Takedowns.  We have sent out thousands for our artists.  CSI even developed a special script to run them in bulk.

Really?  Show us some. We are interested.

As for taking advantage of the system.  What system?  You mean the law that we follow in the recovery of money for our agency and artists.  You mean Federal Law?  That system?  Do you expect artists to abandon their collections because of the unauthorized distribution?  That's not realistic.

Not that. Taking advantage of people's legal ignorance in getting higher dollar amounts than could normally be recovered or far above market values. But we have that covered through our ongoing educational campaign.  In many ways, if your industry keeps sending out extortion letters, it's good for ELI.  Keep it up.

Regarding "artists", most are business-ignorant. That is why the term "starving artists" exists. Again, check out software developers, publishers, and musicians for are doing innovative stuff. For some reason, artists feel entitled that things should never change. Things are changing whether they get it or not. Personally, it doesn't matter to me.  If was a photographer, I know what strategy I would use. It wouldn't be this hate-mongering campaign they have to endure.

Regarding innocent infringement.  Where does the responsibility of the business owner to pay for the images he uses on his business website lie?  Do you feel there should be any responsibility at all?  It sounds like you feel that there should be none.  Is that true?

More people would pay settlements if they were lower.

Here's something you may not know.  When a stock photo agency hires an attorney, it is under the attorneys guidance as to what goes into the letter.  Its not the stock photo agency that dictates that but the attorney.  We hire them under the assumption that they know the law best. 

I disagree. I have hired and worked with lawyers. If the person doing the hiring is too dumb or have enough conviction, of course the lawyer will do what they want.

It seems that a big problem you have about using the law as its written is attorneys stating the damages and penalties as they are written.  Why is this the attorneys fault?  They look at the law and say this applies, this applies, and that applies.  The receiving party can refute that if they feel its unfair.  You are beating up the attorney for following the law as they feel it is best implemented.

That is THEIR opinion but some of it is just BS and over the top. If they felt so right in their position, we wouldn't be seeing so many letters becoming more tamer and sanitized.  And yes, I condone going after the attorney in every legal way possible if I felt they were being in appropriate or being extortionate. (There is that word again...) Attorney's want to get paid to fight, well they should be prepared to get beat on.  Lawyers won't do it because they look at it as their jobs.  But us non-lawyers know they can choose or not choose to do the case. And if they can't take it, they should stop being lawyers or start doing other things like contracts.

We review pricing often.  What is the value of an image when its being used to sell a products and service worth hundreds of dollars online repeatedly or in the promotion of a business?  The only mechanism a website has to sell its products or services is its images and text.

That is BS. Videos are also used and most are free in the selling process. I also sell books, manuals, and audio programs from $10 to $200 on real estate management and real estate financing. They don't buy it because they like me.  They do it to make or save a lot of money. I have charged for my seminars but I don't get a piece of what they do for profit.  Does that mean if they do a multi-million dollar deal and make a ton of money, I get a piece of that?  There is royalty free music and photos also.  They don't get a piece of the action. Every content creator can dictate their terms but if they think the general public will stomach getting them getting a piece of their action, forget it.  Even Getty Images bought iStockphoto for a reason. They know that more and more people want simple use for no strings attached, profit or not.


Should another business make a profit off our photographers images with no compensation even though they used it in their promotion?  We are not talking about someone printing a picture out and hanging it on their wall for personal use or downloading a song.  There is a HUGE distinction to me between for profit use and personal use.  The stock photo industry has never pursued individuals that used our products unless they were being used for profit.

I disagree.  There are no shortage of extortion letters to small-time bloggers, mom-and-pops, non-profits, and other smaller concerns.

I think the most affecting point is the "morality" issue for you and maybe others.  So what is the moral position?  You probably agree that the artist should be compensated but you don't like copyright law which is the only mechanism set up to make that happen.  What do you propose?  I am in a position to propose other solutions to artists which we are looking for.  Ill be in here often so we can get to that soon.

Already answered this elsewhere on the monetization issue.

1389

Getty Images Letter Forum / Re: Matthew Chan's First 10 Questions For Glen Carner

« on: May 31, 2012, 03:01:12 PM »

Regarding Glen's answers to my questions, I do want say that he surprised me by answering more of my questions with more thoroughness than I expected. That was helpful.

I have some inline comments.

#4 - There are many reasons to be on the ELI forums at this time:

• First and formost, I want CSI to develop new solutions for collecting revenue retroactvily that dosent require copyright law.  Is the threat of copyright penalties and accusations of "stealing" the only way to deal with these matters?  I hope not.  The USCO is also trying to address this issue http://www.copyright.gov/docs/regstat032906.html.  I don't know of anyone in the stock photo industry including myself who entered into this business looking forward to the day when pursuing copyright infringements would become standard practice.  Its uncomfortable, inefficient, and contentious work.

I am not going to give free strategy advice for what you might consider as alternatives especially for the "other side". I charge for that kind of consulting and have no incentive to offer free solutions or workarounds. Even if the industry was willing to pay, my advice would be too mind-blowing and reject my ideas. Besides, it is not our job to help the stock photo industry to survive. Every extortion letter that goes out and every dollar that is collected is one more enemy you guys make  and one more friend ELI makes but your industry is too dumb to figure that out.

I find it amusing watching the various high-powered players playing in such a small sandbox kicking sand around at the little kids in that sandbox.  If the stock photo industry wants to follow in the footsteps and demise of Righthaven, it won't bother most of us. The free hint I will give is the industry needs to get outside of itself. It is so incestuous, you guys cannot come up with new ideas. May I suggest you study the software industry (very broad area), publishing industry, and how musicians have profited from 99 cent music tracks and piracy. ELI puts into practice some of those concepts.  Oscar and I give LOTS of information away for free but it isn't entirely a charity service either.

The newspaper industry doesn't get it either and they are dying off. I will be happy to put that obsolete industry away once and for all.

• The issues are not black and white and the majority of users on ELI speak with one voice.  Either that or those of us listening in have "one ear."

You aren't reading enough then.  The agreement is the disgust, anger, and desire for retaliation.  There are actually many subtle differences in the various outspoken people.

• I hope to dispell the myths about my companies which have been created at ELI.

What "myths" do we need to dispel? Oscar and I have always invited people to correct any factual errors we might make. Almost no one has provided that. ELI tries to get it right but in the absence of information, we make educated guesses.

• I can give accurate information and have no entrenched position on copyright law or the industry.

That remains to be seen but I am listening.

• I know the answers to questions like "Why are the cease and desist letter amounts this much?"  "Who dictates what's in those letters anyway?" "How can this be stealing?" and "I found this image on Google so it must be 'fair use' right?" I make no judgment on any of these things but will provide the facts as I understand them.

Actions speak a lot louder than words here but we are listening.

#5 - I didn't know Getty was being more "cautious."  Are you sure this is the case?  I dont assume to know what Getty thinks but these decisions (like any case) are based on it being worthwhile to the company and the principals of the matter. 

I am very sure.

I dont know if HAN filing on cases "works" or what "works" means but we have every intention of following up with companies that are using our photographer's images for profit.  Each company was offered the opportunity to resolve the matter prior to any court filing.  What should our response be when we try and resolve a matter in a way which the law outlines and our effort gets ignored or thrown back at us?  At HAN, we take our attorney's advice which may mean filing a complaint.

That's part of your problem. You and your peers still don't get the massive changes happening with media. Get the blinders off. The trends affect and impact way larger than all the media companies put together. The laws will always be behind the curve.

If you blindly listen to lawyers, that is part of your problem. To you and all the lawyers, this is a legal and copyright issue. But the issue is much larger than that. Certainly, I have the good fortune of having Oscar as a legal advisor but he would be the first to tell you, I keep my own counsel on how I do things.  I am just one guy who didn't put much money into this to fight back. It spawned into required reading by your peers. If I had more money and more time to devote to ELI, the stock photo industry would be hurting even more than it already is by our efforts.

How is that countersuit against HAN working for you? That is what happens when you blindly listen to lawyers. Most smart lawyers should have warned you the possibility of a countersuit. Did no one tell you about legal precedents?  Is your lawyer not following Righthaven or the P2P/Bitttorrent lawsuits? I guess not. You go keep listening to your lawyer for business decisions.

What should you do? Way too long to get into but I already dropped clues. Get the blinders off and change your mindset. Personally, I don't care because I already have a good idea how this well end a few years down the road.


#6 - Im not sure how ELI feels about willful infringement but the law as stated in Lowry’s Reports, Inc. v. Legg Mason Inc., et al., 271 F.Supp.2d 737 (D. Md., July 10, 2003):  “[W]illfulness” means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights."  Readers should also know that under the law "willfulness" as a concept appears to lean more towards "you should have known better and ignorance is not bliss" then one might commonly assume as it pertains to copyright.

The fact that you want to quote the legal case still means you still don't get it when it comes to "willfulness". Let me give you another hint. "Win the battle, lose the war." Long-time ELI readers know better.

What you or I think is fair is not necessarily what the law states or how it operates.  Concepts like "deserve" and "I think" don't enter into it when dealing with IP attorneys because they operate in a totally different framework.  Take C & D letters for example and why they are written the way they are.  The attorneys are not manufacturing those points and amounts, they are following the template of the law.  This is why you see "new" lawyers indicating higher amounts and damages.  They are trained to do what the law stipulates and what is best for their client. 

Good thing most of ELI community aren't lawyers then. That is your interpretation, not mine. How many of your "new" lawyers have been "whipped" over this? Go talk to Lisa Willmer at Getty Images and Timothy McCormack.  You don't like my opinion? Go ask Oscar Michelen what he teaches his students. Maybe you have crappy counsel, have you considered that?  Oscar is an experienced practicing attorney, teaches law students, a business manager, online and media savvy, etc. If you pay Oscar enough, he might share his wisdom and insights with you that I get for free. Please don't make us recite all the HAN lawyers that we have tangled with. I think most of them don't want us referring to their names again. It upsets them and I hear a few have disassociated themselves from the industry. It wasn't worth it to them.

That appears to be to pull and fight as hard as they can, with the expectation that the other side will do the same, best we die bloody and battered in the middle of the courtroom where the truth be found along with the adulation our clients.  Really?  That's the only way human beings have come up with to deal with the unlicensed use of a stock photograph?  As long as the use of images without license is seen as a civil or criminal issue, it will be handled in a way that is consistent with the law.  Ironically, it's the more seasoned attorneys who drift away from the "letter" of the law.

Actually, your side won't do much to fight for free. See how many lawyers believe in the cause so much to work for free or perhaps even a steeply discounted rate as Oscar does. If they are working "for free", I don't see anyone lining up publicly to say anything on your industry's behalf.  The ELI Community fights for free. Oscar and I are the only ones who gets financial compensation for what we do. Oh, did I mention what fuels them?  Anger, disgust, and retaliation.

Your industry has no idea what you are up against.  They still think it is a copyright law issue, copyright registration issue, etc. These are only talking points. There are much larger forces at work here.

Do I agree with the law?  There must be some responsibility on the part of a business who uses other peoples work especially when the use is for profit.  Where that line is drawn is a matter for the courts to determine (as long as the only solution remains a legal one).

Do you even know I am in the publishing and media business? Do you know there are others like me? Many of us would disagree with you.  If I became a photographer, I have a good idea how I would operate. I wouldn't operate like Vincent Tylor. He lives in a small world and small-minded and doesn't get the big picture.

#7 - Market value of our rights-managed images is provided by FotoQuote software (which nationally samples prices), the photographers themselves, and an evaluation of other agencies.

Maybe, maybe not. I have some experience in determining market values in my real estate business, my publishing business, and selling many other products online over the years.  It rarely matters what we want, the market does what it wants.  Don't believe this?  Talk to Facebook this week.  No one cares what FB thinks the value should be. The market does what it wants.  The independent market sets market prices, not what photographers agree they will sell for. A listed price with little or no sales is NOT a market price.

#8/9 - Unfortunately I cant comment on this.  Sorry.

No problem, we will run with what we have. Sorry if you don't like the "mythology" ELI creates then in the absence of information.

#10 - See #4.  I was disheartened to see that CSI's attempts at trying internal collections that moved away from formal notices, legal citations, penalty fees, and attorney involvement with the potential of follow-up action were met with suspicion on ELI.  Our account director has been specifically trained to try and avoid words like "copyright" "infringer" "stealing" theft" or other accusatory language because it is so hostile and unproductive. Nothing would please me more then for CSI to be successful with our new approach at least at first contact.  ELI be proud, it was previous comments you made about acceptable practice that inspired this.

No one has an axe to grind with Lynne per se. It is WHO and WHAT she is associated with that initiated this.  Guilty until proven innocent. Does that sound a bit familiar? Glen, you have a lot of work to do to turn your image around.

HAN like ELI is made up of people too.  As are the attorneys we hire, the people using the images, the photographers, etc.  Each of us is trying to do the best we can to feed our families and keep the world from falling apart around us. 

I don't buy it. No one holds a gun to the attorneys head to take a case. Regarding "feeding families", tell that to people in the newspaper industry, Blackberry makers, factory workers, and other dying industries. Sometimes, in life, you have to make a career or business change. Me and many real estate investors around the world got our asses handed to us. I never signed up for it but here I am bruised and scarred.  Others lost their homes and real estate entirely due to forces outside of their own. Let us not get into the "feeding the family" issue. No one is going to feel sorry for Vincent Tylor lost income over photos he took 10-20 years ago.  No one would feel sorry for me that books I wrote 7-9 years don't make as much money now in the recession than it did in high-flying times.

We follow the law which in the case of copyright is very inflammatory.  So inflammatory that even companies that CSI contacts with an attempt at a business to business resolution with zero penalties, no mention of attorneys, accusations of theft, and discounted license fees sometimes respond through law firms because they are so distressed when discussing copyright.  Both sides continue to do this and I don't see anyone saying "here is another way that is supported by both the industry and people using the images" to resolve this quickly, reasonably, and efficiently.  It may not even feel fair to both parties but for smaller claims especially, any alternative should be considered and tried.  That's why I am here.

I have plenty of ideas that I would do for myself if I was in your biz. I have no incentive to provide my ideas to your situation them because it isn't my job. I don't waste my time to support or help people that don't listen. I recently shut down a project where I was freely advocating for a high-profile entertainment blogger. But he was too blind to see the merits of what we were doing and proposing for him. We even offered our phone numbers and provided emails. Still nothing. Just someone who desperately clings to the hope it will all work out in the end.  Dumb and just doesn't get it when someone tries to tell him point-blank. He is the one racking up tens of thousands of dollars in legal fees defending a stupid position that doesn't need defending.

Your industry has intelligent people that work in them but too small-minded and too blind to see the larger forces at work. Too incestuous and industry with very few new ideas.  You can use the ELI platform to argue your case but I firmly believe that the stock photo industry will eventually go the declining path of the newspaper and large publishing houses.

1390

Getty Images Letter Forum / Re: Matthew Chan's First 10 Questions For Glen Carner

« on: May 31, 2012, 01:19:56 PM »

If Buddhapi can generate all that with only 10 relatively light questions and answers, what is Buddhapi going to write with another set of 10 questions and answers?  LOL.

We can definitely say that he sometimes puts me to shame in the anger and passion department.

If Glen leaves because of this one thread, that doesn't say much for him or his position.

I'd like to see Glen stick around. But in the face of the 100% accurate facts you have stacked up and hard questions you have asked, I will be surprised if he continues to post.

1391

Getty Images Letter Forum / Re: HAN / Copyright Services International Settlement Notification Phone Call

« on: May 31, 2012, 01:11:49 PM »

Glen says ELI speaks with "one voice". I have to chuckle at that because we do disagree with each other at times and this is one of those times!

I didn't ask for the actual profit numbers because I knew that would get turned down.  I didn't even ask for gross revenues. I asked what the percentage was from copyright enforcement vs. actual sales. I don't care if it's NOT my business. He can always decline answering which he has. I think it's safe to say that most of us derive a very high percentage of our income from engaging what we do, not collections.  If it's 50% or higher as has been said elsewhere, then that says something.

The software industry (also a victim of piracy) derives a miniscule portion of their copyright enforcement efforts. Like the media companies, they have the means to go after the "little guy" but they don't.  They hate piracy but handle it very differently.

Regarding how we "feel", I don't accept the argument they are simply businesses and profit-seeking.  Especially in small businesses, the owner and principal makes the decisions and are held accountable whether they like it or not.

For example, Oscar and I have discussed the revenue-generating aspect of ELI to keep ourselves going because we are not doing charity work here.  If he and I really wanted to crank up the revenues for ELI-related activities in the name of profit-making, we would tell people the likelihood of being sued and experiencing misery is very high and that MOST people NEED our services to help them. But we don't pitch it that way at all and I know we generate less revenues as a result of it. We tell people to to use ELI Services to make your life easier, get less stress, save time, save effort, and the most important reason of all, you want ELI to exist for longer than 1 year at a time. We don't do fear-mongering, we try to empower people with options.

Businesses are accountable for their actions because it all decisions and actions trace back to some person.  And for any "businesses" that disagree with that, that is why there are complaint boards, online petitions, BBB, small claims court, etc. all over the Internet to help people who have issues and complaints with businesses.

In all fairness, if someone asked me to reveal the income of my business and publish what percentage I pay out to freelancers (or affiliates), I'd take a pass on this question too. These are answers that competitors could use to an advantage and frankly none of your damn business. 

Regardless of how we feel about HAN, GI, MF or whoever; they are businesses. This means they are a profit-seeking enterprise. I am in no way excusing what happened to Extortion-Victim-No Longer. I find the manner in which her case was handled particularly abhorrent. A good business would try and find a path to make amends. I am sure HAN and the lawyer representing this situation have had their image tarnished. And that's as it should be.

1392

Hawaiian Letters & Lawsuits Forum / Re: Copyright Services International / HAN Case

« on: May 30, 2012, 03:18:36 PM »

I think it's safe to say that most of us are skeptical. I know Oscar and I want to hear what he has to say though. You just never know what might come of it.

1393

Getty Images Letter Forum / Re: HAN / Copyright Services International Settlement Notification Phone Call

« on: May 30, 2012, 03:14:49 PM »

Wow, this thread has become super-charged thanks to Glen.

Let me say I am not a big fan of melodrama and uncontrollable emotions because it clouds the ability to think and process. I also discourage it because it gives the "other side" too much power due to a person's own naivete and ignorance.  As adults, no matter how we feel, we have a certain responsibility to "get it together" to deal with the problem at hand.

Having said that EVNL was the first person who publicly dealt with HAN, contacted us, and getting an outrageous $10K letter gets some special consideration here.  She had the wherewithal to do some research and look for help. She wasn't cheap about it and she hired Oscar.  This set in motion a series of events that led to a devastating PR campaign that ran Brandon Sand out of the business and a very favorable settlement for her.  Today, she can speak freely with no repercussion because she is part of the well-read, highly-credible platform called the ELI Forums.

Fortunately, EVNL learned a lot as have we all as a community and all of the participants give something of themselves when they post "passing it forward" to others.  In a roundabout way, EVNL ultimately got her way because she "compelled" Glen to finally come out to discuss the issues two years later. Simply amazing.

With ELI's powerful standing in the Google search engines, it doesn't take long for the uninitiated collection lawyer to feel the impact of our relentless and piercing coverage, reporting, and callout activities.

You see, the secret is out. Readers of ELI know there are ways of fighting back inexpensively WITHOUT their cooperation. The ELI Defense Team & Community is very good at what we do.  And to think, we only do this in our spare time.

I have promised Glen that I would not delete his messages or allow over-the-top behavior, profanity, name-calling, and other inappropriate behavior against him here on the ELI Forums. But I certainly have no problem with people challenging and questioning Glen. I am not overly optimistic about the answers we will get because the ELI community can ask some very hard questions. But no one can say, he didn't have a platform to speak from.

What Glen needs to know is the power of anger, revenge, and vindication.  When people get hurt or feel immensely threatened, people will devote their personal energies to retaliation and vindication. Like it or not, it is just the way it is.

Glen seems to understand this now and attempting to calm the ELI community down by reaching out. Oscar has some good theories and makes some good points that as long as the Vincent Tylor issue is answered satisfactorily, HAN's credibility will always be suspect.

The next step is Glen's. He has a platform to communicate worldwide. We will see how it is used or if he changes his mind and withdraws.

1394

Getty Images Letter Forum / Re: A win for the bad guys

« on: May 30, 2012, 02:29:15 PM »

Gee, you think?  It was inevitable you were going to get one of these letters and we were going to discuss them.  Hence, we have a P2P/Bittorrent forum just for this reason.

The good news is it is far easier to defend this now because there have been so many court rulings and judges' public statements going against the extortionists. They are even worse than the stock photo agencies.

I have recently been retained on one of those massive adult film cases in Florida and I think it may be time to address that topic fully in our forum.

1395

Getty Images Letter Forum / Matthew Chan's First 10 Questions For Glen Carner

« on: May 30, 2012, 04:09:27 AM »

Since Glen Carner, CEO of Hawaiian Art Network & Copyright Services International has decided bravely step into the ELI Forums, I have some starter questions for him. He obviously can answer or not. In the absence of answer, the ELI community will continue to find answers on its own through its collective efforts.

1. Who "owns" Hawaiian Art Network (HAN) and Copyright Services International (CSI)? We believe you are the sole principal and owner.

2.  What is the difference in the roles between HAN and CSI?

3. How many employees / staff members do you have working for HAN and CSI?

4. Why have you chosen this time and the ELI Forums to "come out" and speak out?  Don't you feel it is a bit risky for you to come in to this audience to share your thoughts and ideas vs. your own website?

5. Why are you filing lawsuits now when the larger firms like Getty Images are being more cautious? Do you think this works in your favor or not?

6. How do you interpret U.S. Copyright Law vs. how ELI interprets it?  Specifically, do you actually think you most cases are willful infringement whereby your photographers would deserve more than $200 per image?

7. How do you justify the extravagant settlement amounts that have been revealed vs. the actual market value of the images?  How do you determine market value?

8. What are the actual split percentages of a typical settlement?  ELI has estimated a 60/40 split whereby 60% goes to the stock photo agency and 40% to the collection lawyer.  Out of "your" portion, how much goes to HAN, the photographer, PicScout, and any other parties you distribute proceeds to?

9. What percentage of your revenues come from straight sales and licensing vs. infringement settlements?

10. What would you like to accomplish by being here on the ELI Forums? Is your participation being supported by your peers at the other stock photo agencies?

I could ask many more questions but these 10 is a good start.