Messages

166

Legal Controversies Forum / Willful Infringement case: USA vs JULIUS CHOW LIEH LIU,

« on: October 10, 2013, 09:27:29 PM »

This is interesting as it touches on the meaning of "willfully!"

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding

The panel vacated convictions and sentences on three counts of criminal copyright infringement and one count of trafficking in counterfeit labels in a case in which the defendant’s company commercially replicated CDs and DVDs for various clients on a scale that subjects the defendant to substantial criminal liability if a client – and, by extension, the defendant – lacked permission from the copyright holder to make the copies.

The panel held that the term “willfully” in 17 U.S.C. § 506(a) requires the government to prove that a defendant knew he was acting illegally rather than simply that he knew he was making copies, and that to “knowingly” traffic in counterfeit labels under 18 U.S.C. § 2318(a)(1) requires knowledge that the labels were counterfeit. Because the district court improperly instructed the jury otherwise and the errors were not harmless, the panel vacated the convictions and remanded.

The panel concluded that the district court should dismiss one of the copyright infringement counts on remand because counsel was ineffective by failing to raise an obvious statuteof- limitations defense.

*

167

Getty Images Letter Forum / Re: Hiring my own photographer and getting the copywrite

« on: October 05, 2013, 05:53:51 PM »

You may be able to just cross out the offending language, write in language of your choice and initial.  Then present it back.  (Of course, someone has to suggest the language you want.)

168

Getty Images Letter Forum / Re: Hiring my own photographer and getting the copywrite

« on: October 05, 2013, 02:16:56 PM »

Jerry Witt,
Obviously, if a photographer is not paid, they shouldn't transfer the copyright.  But if they are paid, whether they keep the copyright should be negotiable, perhaps for an extra fee.  In Roberts example, it is true that the photographer might miss out on the opportunity to hit it big selling his photos of the members of the garage band later on. On the other hand, if he is paid specifically for the copyright, he has money now and he gets it even if the garage band flops.  This possibility ought to be negotiable.

Oddly, if the garage band does hit it big and becomes the next "Beatles" or "Rolling Stones" and later insists on copyright transfers, they will likely find plenty of photographers willing to transfer the copyright provided their name is listed as creator when the copyright is registered (which quite likely, it would be anyway.)

169

Legal Controversies Forum / Re: Oscar's Courtroom Strategy Blog

« on: September 30, 2013, 09:40:35 AM »

I figure almost no-one writes restaurant reviews after eating out. I've never ever gone to the computer and written a food review after eating out and this is true whether I like the food or not. (Have you? Maybe those who are glued to their smart phones do it? ) This gives restaurants a HUGE incentive to skew results and some will do so.

170

Getty Images Letter Forum / Re: Model Sues Getty After Seeing Herself in an HIV-Positive Advertisement

« on: September 22, 2013, 09:45:55 PM »

... Nolan ( the model)  will get nowhere going after the Division of Human Rights, after all they properly licensed the image, so again this falls back on the photographer.

I'm not sure she'll get nowhere. The ad runs a quote where the model herself is supposedly saying "I am HIV positive".  She is not HIV positive. Being accused of a loathsome disease can be 'defamation per se'. And it's impossible to view the poster as ironic, snide, indulging in hyberbole and so on. I think it's fair to say that an ordinary person looking at that poster would believe that the model in the picture is HIV positive.   Licensing an image matters for copyright, but it's irrelevant in a defamation claim. 

I don't think the photographer's screw up will help the Division of Human Rights either.  Even if a license to use the image had been valid, it might not be valid to use it in a context that makes it appear the model is admitting to the world that she has HIV.  Certainly it's pretty irresponsible for the Division of Human Rights to use the image in this way.   I suspect the New York Dvision of Human Rights may learn an important lesson: People who don't have HIV also have some rights.

171

Getty Images Letter Forum / Re: Verification that I am understanding what I can do

« on: September 22, 2013, 09:24:19 AM »

If you tell NCS it's a claim not a debt, they may come back and claim they are not acting as a debt collector but negotiating. (Some people posting here report they've done that in their case.)

If you get a response like that, you may have cause for complaint against Getty because I doubt Getty can sneak around the legal requirement of communicating with your attorney by hiring NCS to pester you.  NCS should not be contacting you.

172

Getty Images Letter Forum / Re: Verification that I am understanding what I can do

« on: September 20, 2013, 03:52:31 PM »

I could no longer find the image online through a simple search, instead I had to go to Getty images and use their catalog number, which they supplied in the original letter. The only other thing I saw the image on through my search was a book cover. It was SUPER easy to find the image the first time around when I used it. Seriously, it should be harder to accidentally use a copyrighted image!

Book cover? I don't know if that makes things better or worse.  Possibly worse because it might be individually registered. (Possibly not though. This is Getty.)  See if you can find the photographer's name, and then use the US copyright office search tool to see if that image is registered. (The search tool is a big confusing, but it does let search for registrations.)

A hosting company hosted my site, so I am not sure if I had control of a server or not, I suppose I had dedicated servers for my site, but all of that is foreign to me.

I consider this having control of the server. It sort of like an apartment. You get to decide what furniture is in your apartment, have some control over who can sit in your living room and so on.  Some people hotlink from another site-- you don't have control over that sites server.

173

Getty Images Letter Forum / Re: Verification that I am understanding what I can do

« on: September 19, 2013, 08:58:42 PM »

I assume that they corresponded with your attorney and not you? 

Anyway: if we go based on past history, it is unlikely they will sue for 1 image. That said, the fact that their past pattern has been to rarely sue especially for 1 image doesn't guarantee that they will not. So it helps to know as much about your own situation as possible. You should do some of the leg work:

1) Have you looked at the image in question, found it at Getty Images, identified the photographer and checked whether it is individually registered? (They generally aren't which will be in your favor in the sense that statutory damages are only available if the image was registered before you copied or within some small window of time after it was created.)

2) Have you looked to see if the image is copied all over the place? Is it for sale anyplace other than getty images. If it is and the copyright holder (usually the photographer) has authorized this, this would mean Getty would be blocked from suing on the photographers behalf. (The photographer could sue on  his own behalf, but he also might not do so.)

3) FWIW: Is your attorney a copyright attorney?  The specific experience in copyright can be useful

4) Oh... did you actually host this image on a server you control? Or might you have hotlinked (i.e. inserted a link to an image hosted on some other server.)  If you hotlinked, things are vastly in your favor. 

Obviously, the greater things you have in your favor, the less likely Getty is to sue. The reason for this is they are less likely to win and even if they win they are unlikely to cover the costs of suing. But only you can know all these things.   But yes: generally, they do not sue over 1 image. But that practice could change.

174

Getty Images Letter Forum / Re: College grad with Getty demand for an image used in a school project.

« on: September 19, 2013, 02:57:21 PM »

but I took all of that down just to be safe.
That was wise.

175

Getty Images Letter Forum / Re: College grad with Getty demand for an image used in a school project.

« on: September 19, 2013, 01:53:56 PM »

The 14 days is definitely a scare tactic.  Phoning is definitely a bad idea.

Things that can be useful to do while you are deciding how to respond:
0) Take down the image. This is a must.
1) Look at your html. Was the image hosted on your server? Did you even upload the image to the university server?  Or did you hotlink (i.e. just link to the image hosted on a server you never had the ability to upload to.)  If you did not host it on your server and never uploaded to a university server, you did something called 'hotlinking'.  The highest courts to address the issue of hotlinking in the US say it is not-- read not-- as in absolutely not-- a copyright violation. So, if that's a case let us know. Be jubulent.  ( If you only uploaded to a university server... I'd suggest a small sigh of relief. Because I bet a good lawyer might argue "fair use" and they might win. but it's not certain.)

But assuming you can't breath the long sigh of relief:
2) Find the image at getty image. Look up the photographer at the US copyright office search site to see whether they have individually registered their copyright themselves.  See whether you can find the registration at the office in anyway shape or form.  If the answer is no (and it is likely to be no) failure to register before you copied significantly reduces the upper bound for any damages getty could win.  This also means they are unlikely to sue because they probably couldn't win enough to cover the cost of paying their lawyers. Of course it also means that if you lost, you still wouldn't have to pay them much. (If you need help on this step, ask. Start by visiting http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First )  On the other hand, if your image turns out to be some spectacular image, or a celebrity image that was registered by the photographer .... well... you want to know that. Damages could be higher.  That said: that letter sounds like the standard amount the ask for garden variety photos that aren't really worth much. So, check.

3) Search for the image on google so you can see how many other people copied it.  Make records of how many you found (screen shots etc.) In the highly unlikely event Getty would go to court for this, showing scads of images online  might eventually help in court-- though we can't be sure.  The issue would merely be an argument over damages.  But also, you might hit the jackpot and find the image is sold at multiple sites. If so, that would put the kibosh on Getty's ability to sue because they can only sue on behalf of the copyright holder if they have an exclusive license.  While the photographer might have signed stuff granting that license, it may also turn out that the photographer isn't sticking with it,and that might kill Getty's case because, contract or no contract, the judge might decree that if the photographer doesn't behave as if he granted an exclusive license, then he didn't grant it!

4) Be aware that if you take the image down after getting the letter and Getty wants to sue, they must file in your jurisdiction.  (There is some question they might be able to sue in WA if you don't take it down. So do take it down!)  Being required to sue in your jurisdiction means you won't have to travel to their jurisdiction (Seattle WA) to defend. This is an advantage for you because they know it costs them money to sue.   If the situation looks like the most they could win is $200, and it will cost them $1000 in filing fees and attorneys fees, air fair etc. to sue... well.. you can imagine they will be unlikely to sue at all. 

All these things are good to know before deciding what to do because they tell you what the worst that could happen is.   (Obviously, the best that could happen is magically, you never receive another letter. But that's not going to happen. No matter how flimsy Getty's case, almost matter what you do-- write, email, phone-- you will receive another letter.  The only way to not get another letter is to have an attorney write a letter for you in which case they need to write the attorney.)

176

Getty Images Letter Forum / Re: Just Received Getty Demand Letter

« on: September 19, 2013, 12:22:25 PM »

We could get into a long debate about whether this is a "https://malegislature.gov/laws/generallaws/parti/titlexv/chapter93a/section11" claim. That appears to be MA law, and copyright is federal.  You'd probably have to discuss that with an attorney.  But my guess is that an attorney would tell you he is not confident you could prevail under 95a. Certainly you would not prevail under 93a if getty did prevail in copyright court, and their winning in US copyright court would mean the claim was not spurious.


That said: your case seems to be one involving 7 images where generally people arriving here have only 1 or 2. Since you said you paid a lot for your site, I will assume yours is a commercial site. (I'm assuming this because hobby blogs rarely pay to have their sites professionally created.)  The fact of using 7 images and being a commercial site makes the possiblity of a suit more likely that usual.  If you are a corporation and this does escalate to a suit (which even with 7 images is not terribly likely, but it's not terribly unlikely either) you will need an attorney as that is required by law. (Indivduals can self represent.)

BTW: If you are incorporated, do not under any circumstances dissolve the corporation. That would shift liability on to you personally. So you don't want that. 

I would suggest that in your circumstance, it is likely worthwhile for you to consult a copyright attorney-- and Oscar happens to have a letter program.  I can't remember if it's $100 or $200.  You might be wise to use his services. Among other things he can craft a letter that would not aggravate your situation, and after he writes it Getty has to communicate through him. (He's been pretty busy with cases recently, so getting on the program might involve calling his assistant and so on. But while Getty's letters indicate time if of the essence, history suggests this is simply not the case. And really, no judge is going to hold it against you that you took the time to arrange for legal representation.)

On the plus side: even though there are 7 images, it has generally been the case that Getty did nothing to ensure images were individually registered and so it's fairly to highly likely that damages would be limited to lost sales while the letter will wave around the scary threat that statutory damages would be likely. That said: Getty may have started cleaning up its act and being more careful about copying or you might have happened to have used images that are registered.  Getty Images does have a large number of celebrity images and I image they are more careful about registering those properly. If the are not careful, their photographers likely are. Without knowing more about the specific images, it's difficult to guess which category yours falls under.    But I think in your case, I do suggest the "Oscar" route.

177

Getty Images Letter Forum / Re: Should I be worried if I'm hosting other people's sites?

« on: September 14, 2013, 04:27:46 PM »

Also: If you host anyone elses stuff, you should definitely file a DMCA agent. That way, you are protected from suits springing from other's copyright violations provided you comply with take down notices.  With respect to your mom this would mean people would write you telling you to take down, and you would take down. Then your mom could file a response if she thought she was not violating.  (And if she did that, you would be wise to tell her that you were taking down her stuff anyway-- and tell her if she doesn't like that she can sue you!)

178

Getty Images Letter Forum / Re: Received extortion letter from Masterfile... Have some questions

« on: August 29, 2013, 11:38:30 PM »

Plus it drives Mr. Beal crazy when Oscar gets involved.

Evidently!!

179

Legal Controversies Forum / Re: Oscar's Courtroom Strategy Blog

« on: August 26, 2013, 09:32:15 PM »

Whichever step you choose, have a good strong drink afterwards.
Heh.

180

Getty Images Letter Forum / Re: 8-16-2013 -- MasterFile -- Fair use?

« on: August 24, 2013, 09:01:25 PM »

Robert,
Yes. That's what Pinterests TOS says. But that doesn't affect copyright law itself and doesn't affect what a Federal judge might rule in copyright court. .

I think that the question about whether Pinterest would be violating copyright law when Pinterest's servers are running the code that fetches the image and stores it on Pinterest servers has not been adjudcated in copyright courts.  I also don't think Pinterest's TOS is binding on a federal judge enforcing copyright law.   Yes. Pinterest's TOS claims any violation is purely that of the pinner.  As things stand, as far as I can tell,  all Pinterests TOS really means is that if a copyright holder sues in copyright court, Pinterest will argue that Pinterest is not the one copying.

But the truth is-- no matter what Pinterest says in it's TOS-- a judge might not buy that argument. As far as I am aware, there is no precedent suggesting any judge would accept Pinterest's claim that the copying is done by the pinner and the pinner only.  Given the facts as they stand in a suite, a judge might very well decide that Pinterest is copying the image.  And it will be the judges interpretation-- not Pinterest's-- that matters. If the judge agrees with Pinterest, Pinterest will be happy. If not.. not!