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586

Getty Images Letter Forum / Re: Images from RSS - Getty images letter

« on: January 12, 2012, 04:01:16 PM »

You can get an even better source for the Perfect 10 case here:

http://caselaw.findlaw.com/us-9th-circuit/1327768.html

Things to note:
1) The 9th circuit upheld the lower court on the server rule. So both the lower court and the upper court saw things the same way.
2) The 9th Circuit is not the US Supreme Court, so possibly, another circuit would rule the other way. But it would be a perverse uphill battle for Getty, particularly since, depending on your use, it might be fair use even if you hosted on your server.

So, assuming you are in the US, Perfect 10 v. Amazon is the case you would mention.  Do not expect the guys at Getty to immediately slap themselves on the forhead and drop it.    For this reason, I want to report Getty's response to my mentioning Perfect 10 in my first response to Getty.   

In their response to my first letter, Sam Brown, Copyright Compliance Specialist, Getty Images License Compliance wrote

"Copyright law requires permission from the photographer—or an authorized representative of the photographer—before an image can be copied or displayed. In your legal example of Perfect 10 v. Amazon.com it is important to remember that Google and Amazon’s display of the imagery at issue is protected by the DMCA. In this case, however, the DMCA provides no such protection to your organization."

Note: Sam put display in bold. (I had used the word "display" in my first response.  If you use it, it might be wise to use scarequotes "display". That's what the lower court did in their discussions of the definition of "display" as intended in US copyright law vs. every day use. )

My response to this part of his letter was

Mr Sam Brown,

Thank you for your cordial respond to my Nov. 29 email discussing your GettyImages demand letter dated Nov. 24, 2011, which discussed a case your company has assigned a case number 1144-28, and involves an image GettyImages describes as "Catalog Image No eb2511-001". You are correct that I mistook the text of UK law for a portion of US law and so that portion of my response has no relevance.

However, it is still the case that there has been no infringement with regard to the image in question.   I will begin by focusing on this point which I made and which is based on the 9th circuit court of appeal rulings in Perfect 10 v. Amazon :

With regard to the image discussed in your letter, there has been no infringement of US copyright  law on my part.

I believe the substance of what I communicated regarding the meaning of the ruling in Perfect 10 v. Amazon which is, in essence this:   When a site like Google hosts html that instructs a users images in Perfect 10 v. Google and Perfect 10 v. Amazon, my web page included html that instructed a browser to point to an image at a third party site.  Under US copyright law, this action does not violate the display right of the copyright holder and it does not violate their right to copy.

I note you provided your opinion about whether DMCA offers protection to my blog.  I believe introducing this issue is irrelevant to the matter at hand. However, because you brought this up, I believe I need to respond.

First: I have not investigated whether DMCA protects my hobby blog and so do not know whether your interpretation of DMCA and my blog is correct.  I reserve the right to make this determination at such time as it appears to be relevant to any discussion regarding  Getty Images "Catalog Image No eb2511-001".

Second: I have read over both the 2006 Ruling regarding  PERFECT 10, Plaintiff, v. GOOGLE, INC., et al., Defendants from   "United States District Court, C.D. California"  and that regarding Perfect 10, Inc. v. Amazon.com, Inc., et al. 487 F.3d 701, No. 06-55405 (9th Cir., May 16, 2007).   I note that DMCA is mentioned and discussed by the District court in footnote 10 of the District Court ruling where they say,

"Google also contends that it qualifies for protection under each of the four DMCA safe harbors, 17 U.S.C. § 512(a)-(d). In light of the ensuing analysis concluding that Google is neither vicariously nor contributorily liable, it is unnecessary for the Court to deal with the DMCA issues."

The plain meaning of the text indicates that any protection that might have been afforded Google by the existence of  DMCA was irrelevant the courts ruling because Google had not violated any of the copyright holders rights under copyright.  I  have not copied or displayed "Catalog Image No eb2511-001" as those terms are defined by US copyright law  So, whether Google, Amazon or I are or are not protected by DMAC in the event that we might inadvertently violate someone's copyright would seem irrelevant.  I'm puzzled that you brought your opinion about the applicability of DMAC up.

I would now like to point out that in my first letter I also brought up the issue of fair use.  In the event that GettyImages might believe contrary to court rulings that including html instructions to an image at a third party site constituted  infringing use under US copyright law, my particular use would in any case fall under fair use for reasons I mentioned in my first email to you. You have not address this point. 

Because you have so far stated you do not consider the matter closed,  I believe must request information from GettyImages.  While continuing to maintain that I have neither copied nor displayed "Catalog Image No eb2511-001" as those words are defined by US copyright law, I request the following information regarding GettyImages "Catalog Image No eb2511-001" required to ascertain whether GettyImages has standing to pursue any claim or negotiate any settlement and to assess whether the suggested amount of the settlement would be reasonable.

The letter then transitioned to asking for information that might provide me some basis for estimating how much damages might be if hotlinking was an infringement.  But that's not relevant to your question about hotlinking. Perfect 10 is.   

Mind you: I'm not a lawyer. But the footnotes in the rulings make it perfectly clear that while Google and Amazon presented numerous reasons including the possibility that DMAC would have protected them, the 9th circuit didn't say it was ok for Google and Amazon to hotlink owing to DMAC protection. The lower court said they weren't even going to bother to figure out if DMAC protected them because it didn't matter. Hotlinking (i.e. framing) doesn't violate copyright.  (The difference between framing and hotlinking is when framing, Google essentially hotlinks the entire page displaying without copying. In contrast, hotlinking is used when you only hotlink the site.)

Also: In my opinion, if Getty decides to go after anyone for hotlinking, and someone goes to court, amicus briefs are going to come flying out of legal blogs all over the place.  Oh. And Google might not want a hotlinking case to go south in another circuit court.

587

Getty Images Letter Forum / Re: A letter to my Congressman and my two Senators

« on: January 11, 2012, 05:49:26 PM »

buddhapi--

I've been wondering if there are differences between the demongraphics of recipients of HAN , Getty and any other group letter.  I haven't followed this long, but it seems to me the few HAN cases discussed here involved small businesses who used images at a business site.  For example: The HAN/skunks involves a picture of skunks front page of a dog grooming site which existed to make money. The skunks were selected to highlight a service the site sells: deskunking of dogs. The other case I read about was a plastic surgery case. In that case, the images were on a site used to give a professional appearance to the medical groups site. In both cases, the sites were online and in active use.

So, it seems to me that at least at the outset, these HAN has picked cases were the site designer should have known that they needed to pay for images even if they were merely "decorative".

I don't know the general demographics of Getty cases, but we seem to hear of theme designers who had a demonstration product on a server that turned out to be connected to the web.  In my case, I got a letter because a hotlinked thumbnail image of cardinals appeared well down in comments during discussion on a blog post at a personal hobby blog.

Comparing this range, it seems to me that when discussing what one would do, I think it's likely important to recognize that cases where the images really, truly were used as the decorative matter on front pages of commercial sites. My understanding of copyright is it still exists even if the images wasn't registered-- the only open questions are: what is the open range of damages and who has standing to sue.  HAN names the copyright owner in the suit, so even if HAN's paper work isn't in order, it seems someone has standing.   

I understand that you are hopeful that a judge would see that the wallpapers were all over the place, making it easy for the business person to believe they were free might make the judge decide there is an implied license. But I would also think if you step back as a disinterested 3rd party that the judge might not see it that way. Especially not if the photographer shows evidence that many of those wallpaper sites are in eastern europe etc.  I really think if someone wants to make that argument in court, they would be wise to beef it up, check if the photographer himself makes the images available on Webshots and look into whether or not it's easy for pirates to get the digital images.  Merely showing they are all over the place might fall short- and in court, you don't want to fall short.

I don't want to dishearten people-- but I think it's important to do the extra work  and not just assume showing the images are all over the place must be enough to convince a judge. 

In the Tylor case, it's not just that they are all over the place. It's that they are all over the place, and I think it's happening because he is uploading to Webshots. And he continues to sell through Webshots while suing.

588

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 11, 2012, 03:39:08 PM »

They suspect that originally a hacker gained access to the high resolution images. Once distributed to free wallpaper sites, they spread out widely.

I don't think anything that would be described as "hacking" hacking is required.
Someone whose compute skillzzzz are close to zero could get the images cheaply and easily through Webshots, capture the images, and upload them to a wallpaper site. 

Someone could probably demonstrate this by getting an image from webshots (whenever someone has the time. I'm finishing up a wordpress plugin to thwart 'bots this week.)

Without stating any view about HAN's situation with regard to past letters, in my opinion, at least going forward, HAN should prohibit their artists from making high resolution images available through places like Webshots or similar.    Otherwise, HAN will merely be in the business of working with photographers who behave in a way that guarantees their images will quickly and easily appear on wallpaper sites and who then use HAN to employ picscout, a clerical/legal staff and litigators to pursue the cases in court.  At some point, HAN may find judges see through this strategy and either deem the photographers actions and granting a defacto license and not find copyright violations at all, or keep all fines to the statutory minimum.  In both cases, HAN would be losing a lot of money.

589

Getty Images Letter Forum / Re: Name for Members of the ELI Defense Team

« on: January 11, 2012, 09:01:46 AM »

I think "ELI" and the concept is cool. Just another thought.....
Since we are being invaded by the "robots", what if "ELI" was also a robot? Just a thought.

Picking up on the stray-- Matt, do you use anything like use ZBblock?  Since getting my Getty letter, I've been trying to figure out a good solution to both make it more difficult and time and resource consuming for the picture scrapers (including picscout) and other bots to prowl my site. (That is-- more time and resource intensive for the bots, less for my site.)
I've finally managed to get things under control.  It involves using cloudflare, ZBblock and a script to autobann that I wrote. I could install it for you. (But you'd have to trust me because it requires getting on a server.)

590

Getty Images Letter Forum / Re: New ELI Video Update (January 2011): Jerry Witt aka mcfilms

« on: January 10, 2012, 11:27:09 PM »

Yes, I'm female.

591

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 07:53:19 PM »

You mean in my getty letter? Nope.  The getty image letter I got discusses 1 image and that wasn't ever even stored on my server. 

592

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 06:38:41 PM »

File for summary dismissal and submit pile of papers documenting the scam
Profit?

S.G.

Are you merely suggesting it's worth a shot? Or are you an experienced attorney saying you believe you would have a high probability of winning the summary dismissal?
If the latter, could you tell us cases where this worked? Because that's what a person gauging whether or not they are going to implement your plan would need to know before following your suggestion.

593

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 05:49:17 PM »

Lettered--
I read the Field v. Google case. I think the analogy is imperfect. Here's why:

I the Field v. Google case, the facts as I understand them is that Field is the plaintiff and Google is the specific defendant. There is no intermediary. The facts indicate that Field knew exactly how the Google bot behaved, knew exactly how to instruct it not to cache and specifically uploaded with the intention that the 'bot would visit and cache the copyrighted content. Then, he sued Google.

So it makes some sense to suggest that Field intended the Googlebot to visit and google to cache. In fact, that appears to have been his main reason for posting.

With regard to the Tylor thing, the chain is much more diffuse.  Presumably at least initially, Tylors intention in uploading to Webshots is to make a little money when people download images. He would likely at least claim this.   But if my notions of how this propagates to Wallpaper sites is correct, after he uploads, multiple their parties who are not Webshots get involved copying and uploading to wallpaper sites. Ultimately, the person HAN sent a letter to copied, and posted the stuff online.

It seems to me whether Tylor granted an implied license to either the Wallpaper site or the person Han is now sending demands to is arguable. I suppose if this gets to court, the argument will be presented. (I think defendant would likely present this evidence and advance an argument.)

 But it's not clear to me that the Field v. Google case would compel any judge to rule that Tylor has granted the defendant an implied license.  (That's not to say the judge might not so rule, I just don't see that the analogy as very strong.)

594

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 05:24:45 PM »

would likely deter a judge from finding that infringement did occur..at least that's how I see it, but I could be being overly optimistic..

Why would this affect the judge's judgement on whether or not infringement occurred? 

I'm asking. I make a rule of avoiding rhetorical questions on blogs and forums because they just result in confusion.  Also: I'm not a lawyer so I have no specific experience.  My impression has always been that generally speaking the judge would not consider the  infringements all over the place when assessing whether or not copyright violation occurred but would only affect the size of the award and the likelihood the judge would require the defendant to pay the plaintiffs court costs and attorney's fees.  (The exception where failure to enforce copyright might affect the judges determination of the fact of copyright might arise if the defense is the copying falls under fair use.   )   

595

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 05:23:20 PM »

Lettered--
Good catch! I stand corrected. I saw all the .ru and .pl etc. as I skimmed ,but I admit I never counted. GoDaddy? They should be enforcing that!

596

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 04:55:18 PM »

Oscar--
Thanks for jumping in!  If I understand correctly, you are saying all these appearances all over the world can affect the size of the award.  However, they are not factors in determining whether or not copyright occurred.  Am I correctly interpreting you?

597

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 04:47:35 PM »

S.D.
Just so I know which people are which, are you an attorney? I'm not. I try to mention that.   Also, when you say you encourage people to fight: Are you someone who got a letter? I got a Getty Letter.    So, for my case, I think I need to weigh the potential up side and downside when  making decisions and I try to assume others who got letters need to do the same.

Even as a non-attorney, I agree with you that to prevail, the defendant only needs one important thing to be wrong with the plaintiffs claim.  But the big risk for a potential defendant is paying a good lawyer  to defend them is costly in actual money and doing all the work themselves is costs time and is risky because an inexperienced defendant is likely to overlook something important. 

Each letter recipient needs or wants to make some decisions before they are sued.   So everyone who gets a letter has to weigh all the "what ifs" pre-discovery. 

598

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 02:24:35 PM »

Furthermore if HAN and Tylor do know about these free sites, why are going after the small fish for having downloaded 1 or 2 images, when they could sets their sites on the wall paper sites, some of which have many of his images posted, wouldn't that be a better revenue stream for them? I would think so..but then again by targeting small mom + pop outfits with the fear factor, they probably get better results with people just flopping over and writing checks..

As a practical matter, many of the wallpaper sites are out of the reach of copyright law. Those with .ru domains, or even with .com domains but hosted in russia, poland, cz, china etc are going to be impossible to sue.

and I still question why none of the other photographers associated with HAN seem to have this "problem", maybe they are not seeding or uploading to webshots....

You could look. I suspect this will turn out to be the case.  I think if HAN wants to be legit, they should insist their artists not make extra on the side by uploading to Webshots.

SG has some very good points, show me where it is documented that you are doing everything in your power to have the "free" images removed, cause if they aren't then they are just part of the problem and guilty by association...just my 2 cents worth...

I think many judges would look kindly on the counter argument that you win or enforce a suit against the Chinese, koreans, or many of these other places. 

599

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 02:19:13 PM »

Whether or not Tylor deliberately seeded his photos is unknown.
I think that PicScout would have picked up on Tylor's images on the wallpaper sites by now.
So, it's reasonable to assume that he's aware that his photos are been offered as "free".

Maybe. Oddly enough, the video someone posted discussing how picscout operates suggests they might miss images if they are hosted in countries with weak copyright laws.  Lots of the free wallpaper sites have addresses ending in things like ".ru", and checking domain tools indicates that many are hosted outside the US, Europe etc.  So, picscout may not pick these up. 

But I think what picscout might or might not find is irrelevant.

If I were on a jury, I would  judge it highly implausible that HAN or Tylor have not known these images are massively reproduced at wallpaper sites. After all, given that they've sent out letters, it's not widely implausible that either HAN or Tylor has avoided looking for his images at google.  In fact, if they claimed not to know they images were widely copied, I would consider this evidence that they were less than truthful.

The story of how they got on the free wallpaper sites might be interesting.
But the fact that they're offered for free on those sites, and remain there as "free" is the most important aspect of the story.

I agree that the fact that they remain free when it is impossible to believe that HAN and the photographer don't know they are there is  important. But I disagree that how the images got on the sites would be unimportant if this were presented in a trial or if these were presented in newspapers stories. It's also not irrelevant to what lawmakers might ultimately do with respect to modifying copyright laws, which they do from time to time.

I suspect that the possibility the images are getting on wallpaper sites as a result of an active choice on the part of the photographer (i.e. he posts them on Webshots) and that HAN doesn't do much to prevent photographers from posting in venues that as a practical matter assure high resolution images will appear on these sites might weigh heavily against the photographer and HAN.  It might not matter in proving copyright violation, but maybe it would matter when assessing damages and awards.

If the latter is true, then it's useful for a defendant to identify a  path from photographer's site to free wallpaper sites. Because, otherwise, in discovery, the defendant or his lawyers would ask Tylor if he posted his images at free wallpaper sites. The answer would be no.  This would likely be the absolute truth. Then, they'd ask if he knows how they got there. He's say no. This might also be the truth. Technically, if they got there the way I think, he doesn't know how they go there. He might not even suspect how they go there!   Are those the only "facts" you want to present a jury or judge? I would think explaining how they likely go there would be useful in a civil trial.

If I was taken to task for infringing on Tylor/H.A.N. photos, I'd demand to see paperwork to prove that they're making meaningful efforts to curtail these images being marketed as free.
I'd want this as part of the discovery process to assess the actual market value of these images.

If it's distributed as "free" anywhere, then it's surely not "premium rights managed content".
No rights are managed if the images are a free download.

First: I see a couple problems here. I agree you should ask to see these things.  I would.

But if HAN takes you to court, the question isn't going to be whether you, SG, are satisfied with their paperwork. The question is going to be whether a judge or jury are satisfied.  So I think you need to put your devils advocate hat and think about how a third party who is not angry with HAN, getty etc would interpret  actual copyright  law.

I'm not a lawyer; I have no idea whether HAN or the photographer are required to try to prevent people in Russia (.ru) from running free wallpaper sites. 

I'm also not sure you are entirely right about the meaning of exclusive license. I think Joe can be granted the exclusive right to make prints for framing, Sheila can be granted the exclusive right to display on the web and Fred can be granted exclusive rights to print on clothing etc. If so, the fact that party A might have an exclusive right to make prints and party B might have the exclusive right to sell licenses to display images on the web.

Right now, it's still possible HAN has an exclusive right. We don't know. Mind you-- history suggests they might very well not have an exclusive right. But we don't actually know.

But I agree with you that I would want to read the license agreement to learn whether HAN has an exclusive right to license to display on the web and also to discover how much anyone paid to display these images on the web.  I have no idea whether HAN has an exclusive license to permit people to display on the web.  I strongly suspect no one has every paid anything for that right to display those Hawaii images and no one would pay anywhere near the amount HAN is demanding. 

I think HAN only sells prints  for a reason.  The likely reason is that the prints do have monetary value. Web display may have nearly none.

I'd also look to the fact that others not involved in the HAN suit-- Webshots-- sell downloaded images.

How many sites do these photos have to be on before we say, "this is deliberate", or "he's doing nothing about it because it entices people to infringe intentionally"?

S.G.

I don't know.  I'm not sure the numerical count is relevant. I'd look to other factors-- like the fact that he has made the decision to let Webshots permit digital downloads. While this is not the same as deciding to let people infringe intentionally, as a practical matter, it is very difficult for anyone to both profit by supplying wallpaper downloads for a fee and also profit by permitting exclusive licenses to display images. (That is: Unless the plan is to profit by suing those who display.)

Anyway, I don't disagree with you. If I were on a jury, given evidence showing the widespread copying, noticing not only that
a) neither HAN nor the photographer were taking steps to prevent high quality digital images from being promoted but
b)  the photographer was taking steps to make high resolution digital images available for download and
c) I saw how   vigilantly HAN and the photographer went after small infringers,

I would be inclined to take a dim view of HAN or the photographer. 

But that doesn't mean that I would deem failure to sue someone in Russia as a factor that puts the images in the open domain. So I would not automatically find no infringement if otherwise, there was evidence of infringement.  Instead, I might read the law to determine the minimum possible monetary penalty I could assess.  My impression is that in the event this particular image is registered, and it turns out HAN and the photographer has all their paper work in place (which they may not) and so on, the minimum will be $200 with no attorneys fee.  The demand letters highlight the maximum-- but courts can give the minimum. 

600

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: January 10, 2012, 12:49:36 PM »

I was a bit curious about this theory of the artist "seeding" photos.  It seems a little implausible that the artist would be seeding overtly. That is: I would be surprised if a photographer is visiting a wallpaper site and uploading his images himself.

Being familiar with the web, I think it's worth looking into ways that a photographer might inadvertently be contributing to the problem.  I googled around a bit and found some possible paths (and other info.) So here goes:

Possible way path for Photographers wallpapers to appear at zillions of wall paper sites.

1) http://www.hawaiianphotos.net/SiteMap.htm appears to be VK Tylor's site.
2) Hawaiian photos' site map  links to webshots page with VKTylor images.
   Web cite capture of site  map on Jan 10, 2012 http://www.webcitation.org/64ai2bj4N

3) Road to Hana Turquoise Lagoon appears at Webshots
   http://www.webcitation.org/64aiKdzpz    (thumbnail)
   http://www.webcitation.org/64aiTIGO6 (Large-- but webcite may be blocked from seeing whole page.  At least today, you can see the page I tried to archive:  http://www.webshots.com/pro/photo/3158973?navtype=search  Webshots appears to display the "hover" image but that's blanked out for webcite. Click the pretty lagoon picture to see similarity between Webshots page and archived page.)

4) Even on the partial archive, you can see that webshots makes wallpapers downloadable.  The price is fairly low-- one gets a monthly membership.

https://subs.webshots.com/reg/comparison?res=high&photos=3158973&done=http%3A%2F%2Fwww.webshots.com%2Fpro%2Fphoto%2F3158973%26path%3D%2Ftravel-north-america-united-states-hawaii-maui&path=%2Ftravel-north-america-united-states-hawaii-maui%3Fexp%3Dphoto_page&vhost=www&collection=Travel+-+Mauihttps://subs.webshots.com/reg/comparison?res=high&photos=3158973&done=http%3A%2F%2Fwww.webshots.com%2Fpro%2Fphoto%2F3158973%26path%3D%2Ftravel-north-america-united-states-hawaii-maui&path=%2Ftravel-north-america-united-states-hawaii-maui%3Fexp%3Dphoto_page&vhost=www&collection=Travel+-+Maui
http://www.webcitation.org/64alEDRWa

Note: Platinum membership-- the top of the line is $39.99 a year, which is low enough that anyone profiting from a free wallpaper site would pay it.  You can also get a free 1 day membership. Possibly those running free wallpaper sites would figure out a way to join using disposable email addresses but I wasn't going to try test that out.

5) Webshots copyright  is archived here:
   http://www.webcitation.org/64aiwTYIg
It grants limited rights-- certainly  if those running the free wallpaper sites have not been granted licenses through Webshots. 
==== Digression.
Up to this point in my investigation, my tentative notion is that it's possible for someone running a free wallpaper site to obtain images very cheaply from Webshots.  (Or failing that, some anonymous person might obtain the images  and uploads to a free wallpaper site. Each wallpaper site operates differently and some may pay uploaders a few pennies for each download thereby encouraging uploaders to do the grunt work of creating content.)

If it's done this way, then the photographer might not be intentionally "seeding" his image.

However, the images copying is  rampant, and by now, one would imagine any photographer who has been suing numerous people must know that the images are all over the web.  He may not know how his wallpaper images are getting to these wallpaper sites. But it appears to me that what I've describe represents at least one path for many of his images to appear at free wallpaper sites.  I also think it's relatively obvious: Wallpaper sites are getting his images from the Webshots, which sells the image cheap!

=====   Since HAN is involved, I think it's worth closing the circle and showing these:

6) HAN displays similar image.  As far as I can tell, they make these available as print only.
   http://www.hawaiiart.com/products/Turquoise-Lagoon-Photograph.html
   http://www.webcitation.org/64akVcPDi

7) HAN's Copyright terms for buyers are seem largely similar to Webshots
   http://www.webcitation.org/64akOZTGZ
Those who buy images from HAN don't have a right to display on the web, resell & etc. But-- as I noted-- at least looking at the images I linked above, I only saw prints for sale.  (Moreover, as a potential customer, I'd assume HAN's restrictions don't prevent someone who bought the image at Webshots from using it the way Webshots license allows.)

However, I don't have access to the terms for Artists. So, I don't have anything that indicates whether HAN has exclusive rights for distribution on the web. 

Looking around HAN, I have not found any method for someone to download wallpapers. So, I think the path to free wallpaper sites is likely not HAN.  (And they may not be aware that some of the images they sell are also sold as wallpapers with the authorization of the photographer through Webshots.)

Anyway: For the time being, my operating theory are

• The photographer Tylor loads them to Webshots in the hopes of making a little money. (Perfectly justifyable.)
• Webshots makes these available at a price that is somewhat reasonable for digital wallpaper. (In fact, that price may only be attractive to people who steal it and resell, making money by selling advertising or collecting email addresses to resell to spammers.)
• Quite a few Wallpaper places (group A) get the images from Webshots representing them as free.
• Then "party B" looking to create a site  downloads from the free wallpaper site an use the image.  Then HAN and Tylor sue Party B. 

I'm not a lawyer, so I don't know how a judge would react to demands for large settlements from the photographer or his agent in the hypothetical circumstance where  one or the other knows the photographer makes images available through Webshots, knows Webshots makes high resolutions images easily available and likely knows or ought to know third parties  (group A) are representing these images as free and the ones being asked for large damages (i.e. party B) are the coming across these images hosted by someone in  "group A". 

But I think the fact that this path exists is something an attorney might want to know about so he could decide whether it's important to his fact pattern.

Also: If I were HAN, and my business model was to sell photographs,  I would insist my artists not make their images available as wallpaper through Webshots. Even though HAN is suing for web display, it's pretty obvious that anyone who wants a nice, high resolution print image of "Road to Hana"  can just download it from Webshots or a wallpaper site, print them on nice paper, display them at home and never get caught.