Messages

211

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: May 02, 2013, 05:06:25 PM »

Of course, I agree with Lucia.

My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".

Sure. I agree Getty accusing someone of infringement is not a crime. People accuse other people of things all the time.

212

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: May 02, 2013, 05:04:14 PM »

To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.

Yes. But this is irrelevant to the ruling in both Amazon v. Perfect 10 and Flava v. MyVidster.

Consider the following: Entity A purchases a license to use a photograph or graphic on their website. Entity B comes along and 'hotlinks' to the photograph that Entity A have legitimately licensed.

To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.

Entity B, via their actions, has bypassed the legitimate licensing market for the original photograph/graphic and - on these actions - a rightsholder would be pretty much entitled to the opinion that their copyrights have been infringed (with any fair use claim probably sailing out the window too)

Are you asking why Entity A might license if entity B could just hotlink the images Entity A displayed? If Entity A is  the New York times, I can think of dozens of reasons why someone like The New York Times  or the Wall Street Journal might want to license from the photographer rather than trying to find an image someone else is displaying.  They might find it commercially useful to be the "go to" places for all the "Bs" who want to hotlink. Or they might not like to be seen hot-linking from party 'Z' (who presumably bought a license) . Or as commercial entities, they might find it less expensive to license than to pay their workers to hunt around for appropriate images to hotlink.  Or they might not want to run the risk of hotlinking from "party Z" who is a competitor of A,  notices A is hotlinking gets pissed off,  fiddles with the Z's .htaccess file and suddenly causes porn images to appear on entity A's web page.


But beyond that, if the photographer who licensed to entity A wants to prohibit hotlinking he should write specify that entity A must block hotlinking of images hosted on A's server. This is easy for entity A to do. In that case, entity B will be unable to hotlink because the ability will be blocked. If entity A fails to prevent hotlinking that will be a tort between the photographer and entity A.  I don't know whether the issue will be a copyright violation or a breech of contract, but it will be entity A doing something that the license did not grant them.   It is not a matter between the photographer and entity B.  Moreover, if the photographer wants to prevent B from hotlinking, he can contact entity A and demand they change their code to prevent the display at "B" and the images will vanish from B, "poof". 

Mind you: if the photographer insists A disable hotlinking, A may become unwilling to license the photographers photos. Because it just may well be that one of the reasons A runs photos is precisely because they find that people who hotlink sometimes create traffic for A.  So the issue could work out precisely the opposite way from what you assume. (In fact, I suspect this is likely. Because if the New York Times didn't want people to hotlink, they could disable hotlinking. They don't. )

Oh and yes, I'm well aware of the 9th Circuit's opinion in Perfect 10 vs. Amazon... but that dealt with thumbnail-sized images. What I'm talking about here is an attempt at circumvention of copyrights in an effort to use full-sized images on websites without paying for them.

The size was totally irrelevant to the hotlinking issue.  Size did matter with respect to cached images, but those were actually copied, not hot linked. Size did not matter in  hotlinking.

Also: Read Flava. They hotlinked entire movies. Full. Size.

It appears that "hotlinking" to images doesn't (or hasn't) happened on a sufficiently large enough scale from any single infringer to make the matter viable for pursuit through the courts to the appropriate level to once and for all get a definitive answer.

What are you talking about?  Google's hotlinked and continues to hotlink many full size images. They did so with Perfect 10. MyVidster inline linked (aka hotlinked but for movies) whole movies. Perfect 10 pursued in one case. Flava in another. 

213

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: May 02, 2013, 04:42:24 PM »

DavidVGolliath--
The 9th circuit and 7th circuit both ruled it was not a copyright violation.The other 9 out of 11courts have not ruled on the issue.

The circuit courts are directly below the US Supreme Court ( aka "SCOTUS") and their rulings are binding in their jurisdictions until overturned. You can see the extent that covered by the 9th and 7th:

http://upload.wikimedia.org/wikipedia/commons/thumb/d/df/US_Court_of_Appeals_and_District_Court_map.svg/620px-US_Court_of_Appeals_and_District_Court_map.svg.png

The parties (both pornographers)  who lost their copyright cases and whose loses results in rulings that inline linking is not copyright either did not appeal their cases to the US Supreme Court or SCOTUS declined to hear them. (I don't know which is true). So, SCOTUS has neither heard nor ruled on the cases. As they have not ruled, and there are no rulings in 9/11 circuits one might prudently say the law is not settled.

That said: For all practical purposes the case law is settled in the 9th and 7th where the rulings from Amazon v. Perfect or Flava v. whosiwhatsit hold.   Until SCOTUS rules otherwise, inline linking is not copyright violation in these districts.  Meanwhile, one can correctly state that the issue is not settled in, for example,  New York (2nd district)  or Alabama (11t district) .

It's worth understanding that as long as the circuits are agreeing with each other, (as they are), it is unlikely SCOTUS will accept any appeal though they might if some of the judges of the Supreme Court were dubious about the lower court ruling.  So, one will find the issue is technically "not settled" until such time as every single one of the 11 courts rule and all are in agreement or the issue gets to SCOTUS.  Chances are neither will ever happen. There are zillions of issues like this.

As for who is saying what: Stinger and I live in the jurisdiction of the  7th circuit. The server I use in in the 9th. Getty is in the 9th  circuit.  Getty, writing from a jurisdiction where the prevailing court ruling  is that inline linking is not copyright violation, told me,  living in a jurisdiction where the prevailing court ruling is inline linking is not copyright violation.   The server I use is in a district where inline linking has been ruled not copyright violation.   Its all well and good for EFF or someone to claim there is something unsettled here. But to some extent, everything is "unsettled" in the sense that at any time, any ruling could, hypothetically, be overturned.

The fact of the matter is: if Getty wants to prevail in a copyright suit for my inline linking of a cardinal, they are going to have to present it in the 7th circuit where the case law ways it's not copyright violation. The local judge will apply Posner's ruling. Then they will have to appeal to the 7th. Were they will have to try to explain that to Judge Posner (http://en.wikipedia.org/wiki/Richard_Posner) that he was wrong.  And then, when he rules against them, they will ahve to appeal to SCOTUS, who will probably not even accept the case. EFF will continue to say the case is "not settled" because SCOTUS will not rule.  Getty will have lost.

And you know what? I think it's unlikely this will ever be "settled" because at most 2 more circuits will ever be willing to hear the cases, when they do, they will agree with the 7th and 9th. After that, no one will appeal to SCOTUS and SCOTUS will never rule.

But the fact is: When Getty claims it doesn't matter whether one put the file on their server: They are wrong. So far, US circuit courts that have ruled say it does matter. Anyone who gives Getty a penny for a hotlinked image is a fool. 

214

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: May 02, 2013, 03:06:05 PM »

Flava--
http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=53931
https://www.eff.org/my/cases/flava-works-v-myvidstercom
http://en.wikipedia.org/wiki/Flava_Works_Inc._v._Gunter

Many things were alleged by Flava.  I think the part relevant to hot linking is

myVidster was also not responsible for any performance "publicly". While arguably at infringement "performance by uploading" took place, this was not related to myVidster. On watching, myVidster users received the media directly via a third party (myVidster "did not touch the data stream") and the "performance" was neither "public" nor "performed" by myVidster. (By analogy, when a newspaper states a play is on, and provides directions to where it may be seen, it is not thereby "performing" them or causing them to be "performed") To decide otherwise would "blur the distinction between direct and contributory infringement" to an inappropriate level.

I this case, the hotlinking would be "framing" since the content was videos.

There are many many fun quotes in that ruling.

215

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: May 02, 2013, 02:54:27 PM »

soylent--

If all you mean is the copyright law doesn't explicitly describe the practice of hot-linking and explicitly stating that act is or is not a violation, I agree with you. If the statute was that clear, there likely would have been no Amazon v Perfect 10 in the first place.

But the case law is the result of the court interpreting and applying US copyright law to the facts in place. Right? And I'm pretty sure in the end the 7th circuit did the same thing with the male porn case. I need to dig that up. You can get a lower court ruling that said it wasn't going to apply Amazon. V Perfect 10, but that got appealed. Posner wrote something. It's a fun read-- but I don't remember the details.

216

Getty Images Letter Forum / Re: Getty Images in Canada

« on: April 30, 2013, 05:37:38 PM »

I have been in contact with my website's host to permanently remove the image.

YOu need to get the websit's host to remove the image?  So.... was the image on a server whose content you control? Or does someone else host it and you just hotlinked. This would matter in the US where so far, courts rule hotlinking is not copying under US law. I have no idea what applies in Canada. But if you only hotlinked, that might put you in a much better position.

217

Getty Images Letter Forum / Re: Getty Images in Canada

« on: April 30, 2013, 02:37:08 PM »

Hi Everyone,

This is my first post here and instead of creating another topic, I figured I'd jump in on this discussion. I'm in the same situation as a_dezwart. I'm a Canadian and have received a demand letter from Getty Images based in Seattle. The demand letter makes reference to one image. They are requesting payment of $950 for an RM image. The image itself (and the screenshot they took of my website) are not the same. The image I had used (unknowingly) had allegedly been altered from the original image according to Getty.

My website is Canadian and aimed only specifically at GTA (Greater Toronto Area) residents. The servers of my website's host are located in the GTA as well. While I think it is a ridiculous and unethical business model, I am a small business owner and the time it will take me to fight this will cost me more than if I negotiated a reasonable settlement.

It reads as if you are clearly in Canada. That means Getty cannot sue in the US. They have to pursue in Canada.  I have no idea what's most advisable under Canadian, but I would certainly take the image down as a precaution. 

It's not clear from the rest whether you believe the image they claim you copied might have been altered in some way or how.  Does it seem remotely possible the image you used might have been copied in any way from the original? Getty's robot does mis-identify-- sometimes laughably. Under anyone's law you can only be liable for copying if the image you posted was copied from the original. If it's merely a similar image with a passing resemblance, that's not copying.  In that case, you don't ask them to provide registration and so on, you tell them that you don't think the image you posted is a copy.   So, you response ought to differ depending on what you think makes sense here.

Just wanted to bring more attention to this topic as more and more Canadians it seems will be receiving these letters. Any advice/tips for me, and do I have a strong case seeing as how the images are not even the same?

Can you send me a private email and let me see the two images?  If you copied the lower left hand 1/4 of their image, you might be liable. But if they aren't even the same image. Well.  No you are not liable. This is something one ought to look at.

218

Legal Controversies Forum / Re: A message from the little guy

« on: April 29, 2013, 07:41:28 PM »

I can count on one hand how many times it's been a "mom & pop" mistake; the lion's share of 'small' sites that take my shots are wannabe news sites - either extremely enthusiastic 'fans' of the subject matter I shoot whom pull photographs and news stories from multiple sources and then re-hash them as their own or...

Let me guess? Wanna be Perez Hiltons?  There is a huge blogging niche.

Maybe they found an image on a third party site or in an rss feed and used in in a blog post on a craft site. In that case, you hold the cards.

DavidVGoliath seems to be in the photographing-celebrities or high fashion area.

I'd say copyright violations involving images of celebrities are rare at craft sites because craft sites like to discuss crafts, not celebrities. On the other hand copying of photos from craft magazines, or yarn manufacturers patterns is rampant.  Crafters regularly show images of the sweater they plan to knit crochet or whatever.  But no craft magazine would pursue these.  Not necessarily because they couldn't win but because the law suit could be business killing.   There is a possibility the magazine might lose anyway principally because the main commercial use of the picture is to sell the pattern. It would be a bit like Levy's jean's suing someone for posting a catalog image of their Levy's when telling their friend they bought a pair just like those. The reason Levy shouldn't sue has nothing to do with the law; it has to do with PR.

I suspect the magazine, yarn company or sweater designer generally owns the copyright on such images and if they had any sense, they would not sue..

So even though, in principle, someone might sue a crafter for showing images of patterns. In practice, it's unlikely to happen. (Exception that proves the rule: Alice Starmore. And therein lies a tale of a formerly popular designer of beautiful knitting patterns who seems to have alienated a lot of knitters to the extent that she seriously harmed her own knitting business.)

The place where something might get dicey is something like this: Say DavidVGolliath takes a picture of Jessica Simpson wearing a beautiful hand crocheted shawl. That image is RM. Then a craft blogger might see it, copy it and write a blog post asking her readers where they might find a pattern for a similar shawl. (FWIW: The shawl is discussed here http://www.knittersreview.com/forum/topic.asp?ARCHIVE=true&TOPIC_ID=22293 ) In such a case, DavidVGolliath might end up involved with a dicey issue.   I don't know how he'd feel about it but this really would be different from "wanna be Perez Hilton".

219

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: April 29, 2013, 03:47:46 PM »

I'd love to avoid all cynicism and say that this will never happen to you but, if you truly value your content and work - no matter that you call yourself a hobby blogger - then it's something worth considering.
I'm not saying it could never happen. I'm saying that even with copyright, I don't think I'd collect enough to make it worth hiring an attorney or that the probability of anything I could collect on happening is sufficiently low that I might be better off spending the $140 on lottery tickets. 

As I see it either
a) It would be worth registering the copyright fresh content within the 3 month window that Newsblur copied right now and suing Newsblur right now or
b) It is not worth spending the $140 a year on the theory that I could, hypothetically sue someone if they copied the way Newsblur copies right now.

Unless (a) is worth doing right now, then (b) cannot be worth doing because I find myself in the exact same position.

220

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: April 29, 2013, 01:06:45 PM »

DavidVGolliath--
One difference between you an me is my blog is not a business. It's a hobby blog.  So $140 a year would just be spending $140 a year for... what? The right to later hire a lawyer, who might get what? $200 for me? It's remotely possible that if I got a very, very good lawyer, he might be able to persuade a judge that the context of the copying means large punitive damages should be awarded-- but I think a good lawyer would tell me even he might not be able to get that. Generally speaking, I would probably have to hire the lawyer to get him to tell me his opinion on that. Given that the lawyer would need to spend time examining the facts of the case (and he has to understand those facts-- which involve crawlers etc.), it would probably cost me another $500 minimum to get the lawyer to figure out if he thought there was any chance of winning anything.

(This sort of thing might make a decent hypothetical for Oscar's class. But I would be very leery of hiring someone like Oscar at his going rate to try to convince a judge that large monetary levies should accrue to me.  OTOH: it might be the sort of case where "Class Action" could be pursued-- if that sort of thing is even possible with copyright.)

I'm going to technology route instead.  It's free. No lawyers. And so on.

In contrast: The copying of your images is pretty cut and dried. You can establish monetary value. It's sufficiently high that the $140/year is worth spending relative to other costs. The value is sufficiently high it's worth hiring the lawyer And so on.


As for who is copying: Newsblur is certainly hoping to be a big business. They've had a large jump in customers owing to Google Closing down it's feed reader.

Their business model clearly involves copying content from many, many small parties each of whom likely individually has little ability to monetize their content as text. Some blot authors (possibly most ) won't care. 

But Newsblur didn't come knocking on my door to ask if they could copy. They don't follow conventional protocols for crawling (robots.txt doesn't have force of law though. Plus maybe the periodic visits aren't considered "crawling". )   They call their product a "feed reader", but in reality, they copy much more than just the feed-- feed is a term of art. And they didn't exactly respond at the speed of light when I asked them to stop copying. (And more over, it doesn't seem to occur to them that if I asked them not to frame or copy for their two views, they should assume that applies to their brand new "full text" version.  They are selling access to these "full text" feeds as a premium feature.)
Oh.. unlike other feed readers, their "feeds" are accessible to anyone not just those who have subscribed. (As you saw, I gave you a link.  You don't have to have subscribed to my feed to read that.)

My view is: if I was an investor or someone thinking of buying the company, I would want to find out if there is a potential looming class-action suit springing from the copying. But I doubt any small individual is going to hire lawyers to file a suit against Newsblur in California, where I think it operates. OTOH: They are copying craigslist. https://getsatisfaction.com/newsblur/topics/craigslist_failing_to_update_automatically_insta_fetch_is_fine
Craigslist has been known to sue.

221

Getty Images Letter Forum / failed to load page: Some regulars blocked

« on: April 29, 2013, 11:17:08 AM »

Sorry to put this here but I don't see an category for "technical glitches".

April emailed me. She and two other regulars appear are receiving "failed to load page" messages and so can't read, visit or comment at ELI. I told her it's working fine for me, but maybe something got tweaked in .htaccess or in the software.  Perhaps the moderator can look through the error logs, see the sort of errors being thrown, and fix the issue.  Meanwhile, I can try to advise April and others.

222

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: April 29, 2013, 10:48:38 AM »

The tricky part stems from 17 USC §106 because the copyright holder is the one whom defines how, when or where their work is "published" (unfortunately, a still slightly grey area in the internet age).

By the way: I totally agree on this.


Go here: http://newsblur.com/site/1100897/
Click on "text" , then click on the first two stories in the lower pane. I'm particularly fond of the 2nd one.
You will note that the "story" and "original" panes are blank. The feed is trimmed. 

You can see how I reacted to Newsblur.
http://rankexploits.com/musings/2012/newsblur-a-modest-proposal/

That said: the legal route is not palatable to me. My stuff is a blog. I'm not going to spend the money on registering at the copyright office and so on. (Though I have to tell you, I was tempted when I recently saw that Newsblur added text scraping.  Arghhhhh!!!!)

223

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: April 29, 2013, 10:38:14 AM »

Consider: if I grant USA Today a license to use one of my photographs in a story on their website - which will also be on their RSS feed - that's the total extent of my license. I certainly haven't granted other wannabe news sites the right to ride on USA Today's coat-tails, whereby they might use scripts or code to pull the story and photograph straight from the RSS feed and re-publish it verbatim on their own domains.

In such instances, sometimes they hotlink to the photographs, sometimes they pull in the images for direct hosting (often stripping metadata and changing filenames as they go). Either way, in my eyes, it's an abuse at the very least.

You may consider it 'abuse' to hotlink the images, but the highest court ruling in the US is the 9th circuit and they say hotlinking is not copying under our copyright laws. So, if you try to take that to court, you have a tough row to hoe. If you are in the ninth circuit, you will definitely have to take a run up the the US Supreme Court.

As current US law has been interpreted by courts, if you wish to prevent hotlinking of your images after licensing to someone like US News, you need your contract to stipulate that US News must prevent hotlinking by third parties However controls the server hosting images (in this hypothetical US News) can not only prevent hotlinking by anyone and everyone, doing so is trivial using .htaccess.

If you need it, this is the code:

RewriteEngine on
RewriteCond %{HTTP_REFERER} !^$
RewriteCond %{HTTP_REFERER} !^http://(www\.)?mydomain.com/.*$ [NC]
RewriteRule \.(gif|jpg|js|css)$ - [F]


Of course, US news would substitute their domain in the rule.
 
If your contract stipulated US News was required to prevent hotlinking and they did not do so, your argument would be with US News, not the person who displayed the image from their server. So far, American courts have seen the issue this way. I'm not a copyright attorney, but I have little doubt that the fact that US News, the copyright owner and anyone with a valid license can prevent hotlinking using in .htaccess will tend to make SCOTUS rule that hotlinking is not copying should a case ever arrive at SCOTUS.   (It's also likely that anyone trying to get SCOTUS to rule hotlinking is a copyright violation is going to discover that Google, Amazon, EFF and numerous people are writing amicus briefs for the defendant in the copyright suit. So you'd better have a dang good lawyer. )

On the other hand, if a third party copies the image hosted by US News from US News
s server to server, you have a case against the third party who actually copied the image to their server. Go after them.  Whether you like it or not,  court rulings so far say hotlinking is not copying or displaying under US copyright. Right now, in the US, someone must actually copy onto their server for the copyright owner to prevail against them.

224

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: April 29, 2013, 07:43:45 AM »

Do check whether the entity who provides the feed gives permission to run it. But that isn't Getty, it's the feed owner. 

If Getty has an issue with the use of the images, they should contact the feed owner and discuss his use. Maybe their license states he should take care to prevent  hotlinking. But that's between Getty and him not Getty and you.

225

Getty Images Letter Forum / Re: Settlement demand for images from an RSS feed (gettyimages)

« on: April 26, 2013, 05:12:59 PM »

Based on experience, Getty will write back and tell you all that matters is you displayed the images. If they do, tell them they are wrong.   They may try to muddy the waters by telling you DMCA doesn't protect you. (It likely doesn't because you don't have a DMCA agent.) But.  This is irrelevant.  DMCA would only matter if you had violated copyright, which, as long as you did not host the images on your server (and as you showed, the images are not on your server) you did not.

You will want to cite Amazon v. Perfect 10 which was the 9th courts ruling in favor of Amazon and Google and against Perfect 10.  In that ruling they say hotlinking is not copyright .  Now... I need to find my letter to Getty.

If they persist in coming back, you should definitely write a complaint to the Attorney General's office. Complaint letters from people who were contacted when all they did was hotlink would be the best possible thing we can have. (After all: 1) It's clear Getty isn't checking, and they should be checking before sending out these stupid letters, 2) If they come back after you tell them your images were hotlinked, they are being really strong-armed.  )

Alas for me, I didn't think to write the AG's office and my case was pretty stale by the time Greg started his letter writing campaign. But ideally, the people who get scary letter for hot-linked images, images that were really embedded in google ads and so on are the ones who really should be sending letters to the Attorney General so they can see the full extent of this Getty Letter program.