Messages

436

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 07, 2012, 12:56:54 PM »

Matt-
I have no objection to your not spending time replying. I don't think my choices dictate yours.  On the other hand: This is your forum so if you told me to go away, I would.

However, for now, if  people ask my opinion, I plan to give my opinions. That will include giving informative answers to Glen's questions and also will include giving informative answers to letter recipient victims when I can.  In my opinion, both types of conversation can benefit those on the receiving end of letters.

I realize that my choices seem to bother SG-- I've explained my reasons to him.  I don't want my explanations to SG to give anyone the impression that my decision to spend my time engaging Glen in anyway suggests that I think you or anyone else has any obligation to volunteer your time.  You have no such obligation either ethically, morally, socially or in any other way.

It is certainly true that Glen's business enterprise and his choices are his and absolutely no one is required to donate their time or expertise to assist hm.  But by the same token, I hope that doesn't mean that people are not permitted to answer-- and sometimes if he asks questions, I will be answering. (Well, unless you decide to forbid it. But I have not developed the sense that it is forbidden.)

437

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 07, 2012, 09:30:11 AM »

Soylent Green

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What difference does it make whether or not Carner/H.A.N. actually targets businesses instead of bloggers if he's a bullshit artist?You seem to want to change every possible discussion into one about whether Carner and H.A.N. are evil incarnate (or a bullshit artist). I prefer to focus on whether certain actions or behaviors would be fairer or more respectful. In this way, the issue of whether he is a bullshit artist become relatively unimportant to my answer.  The subject Glen brought up and  I was addressing was whether calling people on the phone was necessarily a worse practice than sending letters.  In this regard, I do think that whether one is calling an established business clearly linked to a web site and making "fishing" type phone calls to private individuals who may or may not be affiliated with a site is a valid difference that affects how I would view the practice.  Other factors would matter too.

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However, the vast, vast majority of those sending demand letters never, ever submit any proof of their claims and accusations.
This fact has an overall effect of nullifying any other arguments that may otherwise seem logical.I don't disagree with you on the contents of demand letters nor on the reluctance of many to provide proof. But that is a separate issue from the one Glen raised and I engaged which was the question of making phone calls.

As long as we are on the issue of providing proof: I agree with you that it needs to be provided.  To be fair to Glen-- on other threads, he has asked what they should do differently.  That question was open ended. One of the things I told him was that the people trying to collect should proactively supply proof of ownership during initial contacts.  That is: not only do I think they need to provide it when asked, if they are sending letters, this stuff should be sent along with the letter or failing that, a link to a page that provides the proof should be provided. (I'd actually prefer the latter but others might prefer getting printed matter.)

Of course I cannot actually gauge whether Glen is sincerely trying to find out how he can restructure to make his company fairer or whether all your suspicions that he is just a bullshit artist doing .. what? But in my opinion, it is fair for his agency to contact people who are violating copyright and try to negotiate something. And that something can include his photographers being paid. The open questions are: Given what is going one, what sorts of practices on his part are fair or unfair. 

We can of course all point to behaviors that were unfair: The behavior of H.A.N. affiliated people toward ENVL was clearly unfair.

Fortunately for her, because she disciplined herself, did research, and found Oscar-- and because Matt and Oscar run a site that makes that possible, she ended up being able to defend herself-- which is a good thing.   Whatever his motives, on a thread somewhere Glen apologized to ENVL, and he seems to want to change his business methods to avoid what happened in the ENVL case.  Even viewed in the most negative possible light for Glen, that is a step forward for the ELI community. 

But that still leaves us with the question: Suppose tomorrow H.A.N. finds different web site that at least superficially appears to be a business decorated with one of their artists photos. They at least think they have a right to compensation.  What sorts of behaviors on their part are fair and acceptable?  In my view, the answer can't be "H.A.N., CSI and Glen Carner are evil and have no right to collect anything from anyone ever, ever, ever  even unto the 7th generation of their offspring. Because we don't like how they handled things in the past. Oh. And we don't like what some other companies did in the past either!"

Going forward, there must be some actions stock-photo companies -- including those affiliated with Glen Carner-- can undertake   that could hypothetically permit them to make some sort of contact and attempt to negotiate a settlement in instances where an honest to goodness money making businesses is using a photo that is properly licensed.  I think it's fair for Glen to ask us.  For my part, I'm going to try to give nuanced answers because I think the question of what is or is not a fair way to approach someone who may or may  not be committing a copyright violation requires a nuanced answer.

How Glen uses the information in the answers will affect my opinion of him and his companies going forward. 

438

Getty Images Letter Forum / Re: Looking for more info on actual and expected results from defense letter program

« on: June 06, 2012, 10:42:21 PM »

The more I look at it, the more I can see just how much better Oscar's letter is than anything any non-specialist would write.  It's short, and gracious, but simultaneously

1) Does not reveal anything remotely to the clients detriment.   
2) Indicates lack of evidence that the image was copyrighted.
3) Without admitting any guilt, graciously agrees remove the image. (This is the right thing to do and limits future liability).
4) Demurs about price charged.
5) Without suggesting a specific price, requests letter writer explain basis for monetary demand.
6) Requests evidence that letter writer is proper party to pursue a claim.
7) Mentions any information that, if brought to court, might result in lowered or no judgement at all for letter writer.
   -- 3rd party accusations of seeding.
Points out courts generally do not aware claims anywhere near amount requested.
9) Gives general evidence that might suggest the image has no value at all and use results in no harm.


I know many of us who wrote our own letter regret that we overshared. While I hotlinked and so couldn't hurt myself much with the letter, I do regret that I mentioned the site that hosted the image. I would have preferred Getty figure that out on their own. (And if they didn't have the information, I would prefer they never found out.)

The fact is: Even with tips, few letter recipients are going to know how to craft the most effective possible letter. That doesn't mean everyone needs to hire Oscar, but you can see that there is value there.

439

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 06, 2012, 09:20:04 PM »

ENLV--
The 'no clients' aspect is why I think HAN bungled. They need to be able to figure out when something really is a business and when what they found is basically a mock up.  This requires some effort. In your case just listening to you and doing a few checks should have cleared that up. But that effort wasn't undertaken by HAN and instead you were treated very, very badly and unfairly.

440

Hawaiian Letters & Lawsuits Forum / Re: What is Glen Carner's Official Position on Vincent K. Tylor?

« on: June 06, 2012, 08:30:40 PM »

Regarding "By using the term non-commercial you saying that none of the contents of that screensaver have been involved in any of your collection attempts or suits?"

YES YES YES and ABSOLUTELY!

Fair enough then. That means this screen saver is irrelevant to any of the discussions of suits or collection attempts. 

441

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 06, 2012, 06:39:19 PM »

Yes, I know you don’t approve of either action but isn't the business to business model as a starting point at least a better compromise then attorneys letter?

If you mean "real business" to "real business", it likely is a better way. 

One difficulty with communicating on the phone issue is that just as with the letters, and the different companies, there are phone calls and phone calls and there are companies and companies.

So, for example:

My case was Getty who sent me a letter asking for about $875 for a hotlinked photo deep in comments at a hobby blog.  Naturally, I have lots of readers (more than ELI!) and naturally I blogged for advice.   http://rankexploits.com/musings/2011/copyright-legal-eagles/  (Click the link. It was only 1 image in the getty letter, but I took out the other hotlink for good measure. )

It's clear from the letter to me that Getty really had very little information about me, my blog etc. My contact information is on a link at my blog, so someone must have found it, read my address and sent something to my "legal department". (As if!)   The level of vagueness on this letter is considerable. (They don't even mention which of my thousands of posts the image appears on! I had to do a site specific google search to find the post!) 

The blog has no business number-- no business address. Heck it doesn't even have advertising.  If I got a phone call from someone who knew as little as the letter writer seemed to know, I would simply not volunteer anything.  Period. I get weird calls at home and I don't just hand out information. 

In contrast, other cases letter cases (and my impression many HAN cases) are to what appear to be honest to goodness businesses. In these cases, you would likely be calling a business, and contacting their business rep.  They might take your information and get back to you-- but you'd already have a business number. So, it might be wise for them to take a message and get back to you. But presumably that would be ok with you. (I hope?)


But I think when you read these range of issues, you might see that it's easy to talk past each other.  My sense in the conversation was that some one was getting a call that was "getty letter-like". My other impression is there is a strong sense around here that Getty in particular collect a small snippet of information and that to some extent, they try to collect their evidence by scaring the bejezzus out of people with little or no business experience, very shallow pockets and getting them to volunteer evidence Getty didn't have prior to the letter and then demand unreasonable amounts of money for images. 

In contrast, at the risk of experiencing the wrath of Soylent Green, it seems to me HAN is a bit different. As far as I can see, your letters have at least tried target businesses though I think you may have bungled a number of points. (ENVL was a HAN case, right?). That said: plastic surgeons who are actually accepting clients, travel agencies who have numerous clients and so on are businesses and ought to respond to other businesses in a business like way.

In my mind, phoning an honest to goodness business to discuss an issue is fine-- provided you are willing to give some details on the issue that concerns you and let them get back to you. They may contact their attorney to decide what to say, but I don't think there is necessarily anything wrong with you phoning an honest to goodness ongoing business that operates a website with an obvious business purpose.

In the end,  I don't necessarily view the all "copyright-collection-extortion-whatever" phone calls the same. My previous comments revolved around assuming the call was fishing. Quite honestly, I suspect calls from Getty would very likely be fishing. I would advise people to give out nearly no information to any call that seems like fishing. Period. This advise isn't even copyright related.

Why is it a risk to be called "my friend?"

Don't worry. I have a hide thick as a rhino.  I developed it being taunted with "gringita" as a 5 year old in El Salvador.

Also, I don't think this is the first time SG has suggested I'm too nice to trolls.  I'm going to continue to say what I think either way. I will also continue to use double negatives to connote weak positives -- a practice that is entirely standard in English.  BTW: Depending on how we look at the evidence, English may or my not be my first language. Little gringita had an El Salvadoran nanny and I learned Spanish and English in parallel.  I no longer speak Spanish. (I do speak French.)

But enough ammo for Soylent.

What I meant before was that given what I've written about how deeply suspicious I am about one of your photographers posting things at Webshote etc. it would be odd for someone to suggest that I am actually sympathetic to you or your positions in general.  I believe it is more accurate to say I am sometimes not unsympathetic to some of your points.  I try to be fair.

No need to respond as this is rhetorical; we know it’s a better way.

Whoo hoo!  (At my blog, I actually have a rule about rhetorical questions. People are encouraged to tells us their answer to their rhetoricals. I created this rule because the alternative results in chaos!  I didn't think I could get compliance without the power to ban. )

442

Getty Images Letter Forum / Re: Looking for more info on actual and expected results from defense letter program

« on: June 06, 2012, 05:37:31 PM »

Mote

Based on the reading I've already done here, I think I have a pretty good handle on the recommendations for responding yourself.

That's what I did.

443

Getty Images Letter Forum / Re: Looking for more info on actual and expected results from defense letter program

« on: June 05, 2012, 07:46:32 PM »

It's interesting to see how Aloha's filing the counter claim of seeding has a benefit to Oscar's client at this stage.

444

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 05, 2012, 02:07:08 PM »

"least unsympathetic to Glen" = most sympathetic to Uncle Glen?

These are not the same. As far as I can tell, no one here is sympathetic to Glen. 

445

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 05, 2012, 12:53:36 PM »

My view is the best way to handle the name calling would be to request others not do it while also answering the questions.  If you don't answer the questions you will appear to have evaded them and that looks bad even if you think being called names is a reason to do so.  I've been blogging a long times-- and that's the way that works best at garnering sympathy etc. 

Of course, it's also best to studiously avoid even appearing to name call when asking questions hoping to have an actual conversation.  All sorts of things can happen. One is you'll look bad if they behave well, answer but request you not call them  names!

On the turf here, I am likely in the "least unsympathetic to Glen" range. He's ostensibly here to have a conversation.  He asked questions and got answers.  He seems to expect Matt to answer his. I think he should have answered your questions.

446

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 05, 2012, 10:35:50 AM »

buddhapi
Sure. But still.  There is a point where someone doesn't need to address something.

I think Glen should answer your questions and suspect he is using the excuse about name calling as an evasion. And I also notice that he has skipped some key follow on questions I've posed. My theory is that he doesn't want to answer those in public -- possibly having certain information appear prematurely may not be favorable to his negotiations for settlement.  (If it goes to court, Aloha's attorneys will likely ask certain rather questions in discovery and he will not be able to skip the questions asked.)

But I can't fault him for not want to explain a perfectly reasonable letter to the editor he wrote endorsing a view on a particular political issue.  I do not have a low opinion of people who write letters to the editor on political issues, and I don't think he needs to defend that.  Moe posted that-- and so I'm giving my opinion on that issue.

447

Getty Images Letter Forum / Re: Looking for more info on actual and expected results from defense letter program

« on: June 05, 2012, 09:01:17 AM »

I didn't sign up for the letter program, but even so, I think I know the answer  (or non-answers) to some of your questions. 

1) I realize this may vary depending on the circumstances of the case, but what are ultimate goals / expected outcomes of using the program?

Yep. The answer is defenitely "it depends".  After all, each claim is a bit different-- so the goals of the letter program are different. Consider two possible extremes:
1) someone is actually running a "free wallpaper site" and got a letter because you had a HUGE number of getty image listed.
2) someone hotlinked a tiny blurry 600 pixel image deep in comments at a blog.

In case (1) the letter recipient is guilty, guilty, guilty and it could be appropriate to get getty to bargain down to a lower demand. In case 2, the letter recipient has done nothing, and the goal should be to shield the letter recipient from communicating with Getty and ultimately prevent them from filing a suit within the 3 year window. (Getty would be nuts to file a suit in case 2-- so the main goal is to spare the letter recipient from writing their own letters, fielding calls etc.)

So, appropriate goals by a lawyer would be different in the two cases and you question cannot be answered by stating 1 sole goal.

4).....but in both cases he mentions the 3 year period and I'm not clear on what happens between the initial letter from attorney Michelen and the end of the 3 years.

3 years is a statute of limitations for civil copyright claims.  If they haven't sued you within 3 years of first discovering the issue, they are barred from trying to sue (or collect).

From attorney Michelen's comments in the videos, it sounds like they respond at least some of the time.

If you write a response yourself, Getty always responds. I have no doubt that if Oscar writes they a) are less likely to respond but they b)sometimes responds.  If Oscar's program charged for the 2nd letter, I suspect Getty would tend to respond to the first letter.  But as it stands, they know that an attorney has been hired, and so know that they'd better send a higher quality letter than they would to someone writing their own letter. ( After all, when they respond to me, I don't know enough to spot anything that might be used against them in court should this ever proceed. But Oscar would know.)

3) 

How much, if any, of a deterrent effect do attorney Michelen's letters have?  Is it common for Getty to give up on a target once they use the defense letter program, and pursue softer targets instead?  How often / under what kind of circumstances do they give up and go away as a result of the letter program?  Never / once in a blue moon / sometimes / often?

Don't know. Oscar would have to let someone put all his results in some sort of database were we coded with no personally identifiable information so I could run statistics for him. (EG: enter some sort of case code with a)date of letter b) number of images involved, c) hotlinked or self-hosted, d) business/ personal/not-for profit, e) domain controlled by letter recipient (yes/no) , f) hired company to make site (yes/no)

And so on.

As I don't work for him, providing me the information to let me do this  would likely violate the ethics of his field. I'm sure Oscar isn't going to devote an afternoon anticipating which statistics he wants to run, designing the data base to permit those statistcs would be done, entering the data and thendoing the statistics himself.

For what it's worth-- if Oscar wanted to hire me to come up with statistics, I would do it for him. But he'd have to figure out how to hire me and structure the task so privacy was maintained, and he'd have to pay me. But I doubt  Oscar wants to raise the fees of the letter writing program in order to pay the cost of having someone create a database so that we can provide statistics.  Though I would take the job if it was offered I wouldn't advise him to pay anyone (not even me) to do it!

5) Is there a big advantage to having attorney Michelen's letter be the first response, as opposed to responding yourself and later using the defense letter service?

That depends on the specific of your case, the value of your time and your own personality. I am dealing with my case myself because I didn't commit an infraction at all and I am comfortable writing my own letters and dealing with the responses from Getty. (I actually enjoyed writing the most recent one! And posting their response!)  But some people here (ENVL for example) found letters very distressing, and having Oscar deal with it gave great peace of mind.

ENVL would have benefited greatly from finding Oscar initially and having him write the letter. This is partly a personality issue. Me? My personality is different and my situation is different.

In my opinion: if your case is complicated and you are-- to some extent-- guilty of any sort of violation that could result in an award that is several multiples of the letter writing fee, then you probably should get a lawyer who specializes in copyright.
The reason is that in the case of culpability, you want great care to be taken during the letter writing process that reveals only what must be revealed. You also want someone who how to present your case to a judge in a light that is most favorable to you and so on.  So, if your case looks bad-- e.g. multiple infractions, posted on a business site, there is a good chance Getty will want to go to court. Hiring a lawyer early will let you have a lawyer who has continuous familiarity with your case, help reduce the potential for a large judgement against you, help negotiate lower fees to getty. Would you incur legal costs beyond $195 to write the letters in this case? Of  course. That would happen because your case would be one that appears to be potentially much more costly.

In this case, quite likely, the letter writing program would benefit you. But only you can judge for sure.

448

Getty Images Letter Forum / Re: A Man of Principal and Not Interest

« on: June 05, 2012, 08:08:09 AM »

At the risk of being accused of being a FOG (Friend of Glen), I can see why he doesn't want to engage the topic Moe introduced. It's not about copyright, collections/extortion or anything else.

Anyway, on the topic itself: I don't see anything wrong with Glen writing a letter to the editor to support a particular political initiative in Hawaii.

449

Hawaiian Letters & Lawsuits Forum / Re: What is Glen Carner's Official Position on Vincent K. Tylor?

« on: June 04, 2012, 01:12:17 PM »

The Hawaii Pictures screensaver (which has no commercial images in it) was originally posted on CNET and then shared between the download companies like the links you posted. 

Interesting choice of words. I'm trying to figure out how far to interpret what it means. I assume the file didn't just jump onto CNET of it's own volition. Who originally posted the file to CNET?   

Also: you said no commercial images.

On the issue of images are on the screensaver: If whatever images are on there are not involved in any suit or letters demanding monetary compensation for HAN then it is, of course, irrelevant to any discussion of HAN collection attempts. (You will note that my discussion did contain an "if" clause. You seem to have been interested in general principles-- and I am also.)

As discussed above: I have a mac. I said the images don't display for me and said I wasn't going to try to download or fiddle to try to extract anything in an .exe file. 
Are you saying there are no images at all on the screensaver? 

If there are images of any sort on the screensaver, have any migrated over to any free wallpaper sites? 

And finally: By using the term non-commercial you saying that none of the contents of that screensaver have been involved in any of your collection attempts or suits? 

As I cannot look at the screensaver, I can't discover these myself.

450

Hawaiian Letters & Lawsuits Forum / Re: What is Glen Carner's Official Position on Vincent K. Tylor?

« on: June 03, 2012, 03:38:57 PM »

I agree that someone extracting an image from screensaver software is unlikely to think the owner of the image intends it to be distributed for free.   So, if someone who created a site got it that say-- they should be liable. 

But if that software is made available by the owner for free, and it's possible to extract the image then this path exists:

"owner provides software  for free-> wall paper site guy strips out high def image -> image appears on wall paper site -> unsuspecting business owner (aka "the mope") uses image".

To my mind, if the owner knows this can happen-- or if after it happens a few times-- they don't stop providing the software for free, they shouldn't be able to sue "the mope".   Obviously, since I have a mac I'm not going to try to fiddle with the .exe files to figure out what's involved in extracting an image. (I assume it's probably not that hard.)