Messages

196

Getty Images Letter Forum / Re: Letter from photographer similar to Getty issue

« on: July 01, 2012, 10:53:10 PM »

This is strictly my opinion, and I'm curious what others think as well.

I would verify the copyright belongs to the person making the claim, then verify the person's identity. I would also ask for his agent's identity. If it all checks out, it's a very reasonable claim for an infringement and the photographer's approach seems very civilized.

I would not choose PayPal to make the payment. A wire transfer would be better because the person would have to disclose their bank information and again verify their identity. I doubt someone would try to commit identity fraud for $150 and give you their real bank account information.

In the future, be more careful about where you get an image. This would be a very inexpensive lesson when you think about it.

197

Getty Images Letter Forum / Re: not getty / letter related...totally off topic

« on: July 01, 2012, 10:35:55 PM »

I was wondering where you've been! Good to have you back, Buddhapi.

198

Getty Images Letter Forum / Re: Hello and I just got a letter from Getty

« on: June 30, 2012, 08:52:02 PM »

Yes, S.G. Those are the unfortunate rules of the game as they stand now, and thank you for listing those facts clearly to avoid confusion. Those who use images for any kind of web publishing should be aware of every point you make lest they commit an unforced error and get an extortion letter.

The questions I raise are not about legal fact but about fairness to the end user. This is why the conversation April and Jerry have started about involving the FTC is a very positive idea: The rules need to change to create a more level playing field.

We have discussed at length how unwilling HAN and VKT seem to be to address the baitpaper sites, and we suspect the reason is that they benefit greatly from the seeding, whether or not they have any control of it. If it can be proven that they did have something to do with the seeding, then they would probably be guilty of fraud, wouldn't they?

Those would be criminal charges, though, and the standard of proof would be "beyond reasonable doubt". Intent is difficult to prove in a court of law. Difficult, but not impossible. Someone out there knows the truth and may surprise everybody by coming forward.

It appears there's some seeding of the Microsoft wallpaper going on as well, although I doubt Microsoft or Getty are involved. Isn't Microsoft or Getty interested in issuing a DMCA takedown request for the websites that are spreading their images as free wallpaper? One would think so. At least I would think they should be.

199

Getty Images Letter Forum / Re: Recieved a demand letter today.. What do you think of my response?

« on: June 30, 2012, 08:40:03 PM »

They can't break into your house in the middle of the night with a swat team, to search your house for images, right?
So why can they do that to my server, my life & my business at any cost?

anakin, this is what I've been saying for some time.

I strongly believe PicScout's "evidence" should be invalid in a court of law unless they have a proper search warrant. I think their rude search without probable cause violates our Fourth Amendment rights, the text of which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

Source: http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

I believe this is particularly true when they ignore the robots.txt file and crawl directories they are asked not to crawl, and when they crawl under the guise of a falsified user-agent, which is always. This shows bad faith on their part.

There is also the issue of the damage they do to the web server administrator by hogging their bandwidth mercilessly and distorting the web server statistics by pretending to be a human visitor. When you have a low-traffic website, those "visits" can make a big difference in the statistics you may be tracking for SEO purposes, thus leading you to possibly make incorrect decisions about your SEO strategy.

200

Getty Images Letter Forum / Re: Hello and I just got a letter from Getty

« on: June 30, 2012, 06:47:04 PM »

Fascinating, S.G. That's not what I expected. I guess the pathname doesn't use the word "Public" as it used to in XP and Vista, where there are some sample images included.

Researching that pathname, I came upon a website that instructs people on how to find "hidden" localized themes for Windows 7 so that ... "You can go in and just grab the Wallpapers" (their words, not mine). Of course they don't mention that you can ONLY use them as wallpaper. See the page at this URL:

http://www.howtogeek.com/howto/3476/access-international-themes-in-windows-7/

Is this an innocent omission on the part of the author? Maybe. However, it becomes a little more interesting when you realize that HowToGeek.com is seeding baitpaper for HAN and VKT. You can see it yourself at this URL, scroll down to see several HAN/VKT images:

http://www.howtogeek.com/howto/41956/desktop-fun-dreams-of-hawaii-wallpaper-collection/

Is this seeding an innocent coincidence? Maybe. But I've sent them not one but TWO comments (which you can add to the bottom of the post) warning them that several of these images are copyrighted and they are causing people to get extortion letters.

Clearly my warnings have been duly ignored since I warned them twice, once on 6/21 and then again on 6/22.

I've given them the information they need to verify the FACT for themselves, and they have chosen not to do anything. I did admit in my comment that I can't force them to take the images down, only HAN and VKT have the right to do so.

At what point do these asshats from HowToGeek.com become liable for seeding copyrighted material knowingly, or giving "advice" that misleads people to commit copyright infringements?

At what point does Microsoft become liable for not making it clear that the wallpaper included with the OS can ONLY be used as part of the OS theme, and that even a screen capture of the wallpaper could result in an infringement? Maybe Microsoft should be made aware of the fact that they're seeding for Getty Images, a direct competitor of their company Corbis.

alanspicer, maybe you could send an email to the legal people at Microsoft explaining your situation. They may not even be aware of what's going on. It would be interesting to see if they care about it or just cover their fannies and shut the door on you by telling you that you should have read the EULA. I don't think you have anything to lose by sending them a friendly email.

Jerry is totally on to something, following April's great suggestion. This has become a serious consumer protection issue. You're not even safe if you buy the image from the copyright trolls themselves! April has been trying to warn people about this but we need momentum. The FTC could get involved on the legal side. Consumer Reports may be interested in covering this as a consumer rights issue as well.

Hey Jerry, how about a cameo appearance by Ralph Nader asking Getty what standard of failure they would accept for their copyright trolling program?

201

Getty Images Letter Forum / Re: Copyright Troll Insurance ... from iStockphoto?

« on: June 30, 2012, 01:03:27 PM »

I'm not forgetting that is for sure. I used to buy photos from istock. Now i'm not after being harassed by Getty. I guess that would be a problem for them if they were in the photo business instead of primarily the extortion business.

anakin, that's very interesting. The image you're being harassed for is a Getty image, not an iStock image, right?

202

Getty Images Letter Forum / Re: Hello and I just got a letter from Getty

« on: June 30, 2012, 12:54:23 PM »

Thanks, S.G. The copyright information in the image's properties dialog box check out:

http://tinyurl.com/7ckhfxn

S.G., could you tell us if the pathname to the included /Public/Public Images/Sample Images/ directory?

I'm trying to establish a case for "innocent infringement" based on the difficulty of finding out that the image COULD be copyrighted, the difficulty of finding out that the image IS indeed copyrighted, and the confusion caused by pathnames that could suggest "public domain". The directory could be named /Public/Wallpaper Use ONLY/Sample Images/ in order to avoid confusion.

203

Getty Images Letter Forum / Re: Copyright Troll Insurance ... from iStockphoto?

« on: June 29, 2012, 03:55:03 PM »

Strike Four:

Q: Are there any reasons why legal protection might not be granted if a claim arises?

A: Usually certain conditions need to be met for the supplier to provide legal protection to a customer if a claim arises. These will be laid out in the terms and conditions of the supplier’s license agreement. For example, the customer may need to notify the supplier of the claim within a certain timeframe and customers must be in compliance with the terms of the license agreement for the legal protection to be offered.

Source: http://www.stockphotorights.com/faq/

As if the consumer needed any more reasons not to buy from Getty Images or their underling stock photo outlets, a subtle warning about their built-in escape clauses hidden deep in the FAQs of Getty's own "informational resource" website, Stockphotorights.com.

204

Getty Images Letter Forum / Re: Copyright Troll Insurance ... from iStockphoto?

« on: June 29, 2012, 02:44:20 PM »

lucia, I understand what you're saying, but I don't have a budget to play lawsuit musical chairs, nor do most consumers. Of course I could sue anyone for any kind of "injury" caused to me by their flakiness, lack of diligence, or outright corruption. They would defend themselves by saying "those were the terms you agreed to." My point is that I would NEVER agree to such ridiculous terms.

Besides, I don't think Getty or iStockphoto or any of their trolls worry nearly enough about looking bad. We have to club them on the head really hard to make them back off just a little bit, then they turn around and do it again when they think no one's looking.

S.G., thanks for the old links. I'll be sure to read those posts carefully. You're absolutely right that a $10,000 "guarantee" is a joke when you look at what it really costs to take the trolls to court or defend oneself from them.

It seems this "insurance" is another part of the trolling scheme that has been left aside for a while, and I'm interested in how the insurance trolls are involved in the loop that makes the free markets a mine field for the consumers.

205

Getty Images Letter Forum / Re: Copyright Troll Insurance ... from iStockphoto?

« on: June 29, 2012, 12:42:46 PM »

I understand that iStockphoto is attempting to limit their liability. To me, that's Strike One. If I buy a license from them, why should I be liable for a copyright infringement committed by them? I understand that's how the law may work. I don't agree it SHOULD be like that.

If Getty, the PARENT COMPANY of iStockphoto, hits ME with a copyright insurance claim, I'm supposed to believe iStockphoto is going to do their best to defend ME? They're trying to limit their liability in the first place! Strike Two.

Now look at the price structure. Almost worth taking the chance. Strike Three, you're out, iStockphoto AND Getty.

I'm going back to Fotolia or better yet, hiring the photographer and/or taking my own pictures. The "work for hire" contract will protect me from the photographer, and I control my own copyrighted images.

The real injury here is the insult to our intelligence as consumers.

206

Getty Images Letter Forum / Copyright Troll Insurance ... from iStockphoto?

« on: June 29, 2012, 11:46:36 AM »

While comparing the different definitions of "royalty-free" provided by different vendors, I found something on iStockphoto that blew my mind: They offer ... COPYRIGHT TROLL INSURANCE!

Every royalty-free file licensed on iStockphoto includes a free Legal Guarantee. This is our promise that content, used within the terms of the license agreement, will not infringe any copyright, moral right, trademark or other intellectual property right or violate any right of privacy or publicity.

If you receive a threatened or actual claim that your use of iStockphoto content (used within the terms of the license agreement) is infringing any rights mentioned above, notify us of that claim and, with your consent, we will defend you and be responsible for your damages and expenses up to $10,000.

Wait a minute. We've seen people get trolled for more than $10,000 for a single image. Don't worry. For a little extra cash, you can buy peace of mind with the iStockphoto EXTENDED Copyright Insurace Plan!

If you need a little extra peace of mind from iStockphoto, the Extended Legal Guarantee increases iStockphoto's responsibility for your damages and expenses up to $250,000. This Extended Legal Guarantee comes free on any file purchased from the Vetta Collection or Agency Collection, and can be added to any other file outside of those collections.

There is no financial cap to iStockphoto’s liability under the Pump Audio Content License Agreement.

You can license (or purchase) an Extended License when you first download content or anytime afterwards. Please note, when purchasing the Extended License at a later date, you will be required to re-license the file.

If you need to ask, the extended plans are not cheap. I'm flabbergasted that they will sell you an image and admit that you can STILL get trolled for it and you would need to get protection (or even extended protection) for the image you licensed from THEM!

Now here's a scenario to consider: You buy a Standard License image from iStockphoto, figuring you don't need to pay the extra cash to be covered for more than $10,000, then parent company Getty sends you a letter demanding $20,000 for the infringement.

Unless I'm reading this wrong, this is the craziest thing I've read about licensing from a stock photo company in my life. See if you get the same notion from reading this page:

http://www.istockphoto.com/help/licenses

If this is the case, I see a very ugly conflict of interest in the scenario where Getty Images claims you infringed by using an image you licensed from iStockphoto. Let's not forget that Getty Images owns iStockphoto.

207

Getty Images Letter Forum / Re: Hello and I just got a letter from Getty

« on: June 28, 2012, 11:28:24 PM »

alanspicer, a couple of quick questions:

1) Can you find out what the pathname was for the image? Was it something like C:/user/Public/Public Images/Sample Images/... ?

2) Can you locate the image itself? There are several images on the Getty Image catalog with similar titles. If you can locate the actual image file in question, please right-click the image and pull down the pop-up menu to "Properties". On the Properties window, there is a tab named "Details". Click that tab and see if it provides the Author and Copyright information.

Please let us know if you can find this information. I'm curious to see if this gives us some clues about the actual copyright holder. I found a similar image on a recent version of Windows 7 but I don't think it's the same one because it's not on the Getty catalog. The one I found was attributed to "Tom Alphin" and the Copyright is attributed to "Microsoft Corporation", not Getty Images.

It could be interesting if the information provided on the image's Properties panel does not read "Getty Images" or an author matching the image on their catalog.

208

Getty Images Letter Forum / Re: ELI Video Updates Ends. The ELI Factor will launch soon.

« on: June 28, 2012, 02:13:06 PM »

Good one, stinger and Peeved! 

209

Getty Images Letter Forum / Re: FunnyJunk Attorney Charles Carreon's Wife, Tara Carreon Shows Her Stuff

« on: June 28, 2012, 02:10:36 PM »

Should we drop a dime on her to Warner Brothers? I bet she did not ask for permission to use the clip. If there's any value to this incredibly bad performance P.O.S., it's the cool footage in the back.

Could you please move over and be quiet, Tara? There's some really cool kung-fu going on behind you.

210

Getty Images Letter Forum / Re: Hello and I just got a letter from Getty

« on: June 28, 2012, 01:49:31 PM »

alanspicer, just wanted to let you know that modifying an image does not get you off the hook. It has to be modified practically beyond recognition. Fair use includes other "safe harbors", but that's not really one of them.

Even if it's modified, a "derivative work" constitutes an infringement. Copyright law is a form of strict law, as Oscar has explained, so the degree of modification has little to do with whether or not an infringement has occurred. To use the trespassing analogy Oscar put forth, you can't argue that you didn't trespass because you only got one foot into someone's private property and kept the other one outside, or that you ran in real quick and then ran out.

I've heard all kinds of myths about "percentages of modification" to justify the use of a copyrighted image. This is nonsense at face value: How can you measure the percentage of change you made to an image that accurately?

Here's what constitutes "fair use":

http://www.copyright.gov/fls/fl102.html

This article raises more questions than it answers. Item no. 3 in the descriptions of "fair use" is what leads people to believe that modifying an image beyond a certain point is "fair use". The trolls call it a "derivative work" (read: infringement) even if it's a 5% match, and PicScout technology can detect it even beyond the normal perception of a human being. The trolls like the stricter standard set by PicScout because it widens their potential victim demographic.

So the "fair use" concept only works as a defense in court, and one that has to be disputed for virtually every specific allegation. In my opinion, even if your blog is commercial, you only used the image incidentally to illustrate a point. The image was not being distributed or sold for profit, nor did you it add any real commercial value to your blog or business. In fact, the point you wanted to illustrate had nothing to do with the image whatsoever. A flat-color background would have served the same purpose and would not have gotten you into trouble.

Then the question is "how could you have known?" This is where I get really concerned. It seems the standard is grossly unfair and asymmetrical because it's very difficult for you, the end user, to know you're committing an infringement. Should that not then be considered an inherent form of "innocent infringement"? I would like to think so.

I like April Brown's idea that Matthew brings up in his comment. There needs to be some regulation to make the copyright protection process more symmetrical: A more level playing field, if you will.