Messages

76

Hawaiian Letters & Lawsuits Forum / Re: Info on Woolf, Gafni and Fowler LLP

« on: July 10, 2014, 08:06:44 AM »

The old site seems to be restored. It says wolf-gafni-fowler.

77

Getty Images Letter Forum / Re: Canada and Copyright Trolls

« on: July 09, 2014, 10:46:04 AM »

David Fewer responded to my email.  Most importantly to ELI, he is interested in hearing about any Getty Letters sent to Canadians. His interest is to work at the  legislative level not to negotiate settlements. That means those sending him details can't hope for specific help on their cases. However: I think it is useful for those who get letter to send them to David Fewer as changes at the legislative level will help future Canadian recipients.  That is all to the good and we need to all recognize that individuals need to budget their time. My guess is that either Mr. Fewer can spend time working to change law over all or he could spend time working on settlements but he cannot do both without collapsing from exhaustion.   

In that vein: I think Canadian letter recipients should be encouraged to assist Mr. Fewer where they can.  My current advise is that in addition to other things a Canadian might do, those receiving demand letters should send copies to
David Fewer <dfewer@uottawa.ca>


I'm going to hashtag this hoping that helps canadians find this.
#Canada #copyright

78

Getty Images Letter Forum / Canada and Copyright Trolls

« on: July 08, 2014, 02:52:10 PM »

From time to time, Canadians stop by asking information on copyright in Canada. We have no one here with particular expertise on Canada. However, I dredged up a site from the University of Ottawa Canadian Internet Policy and Public Interest Clinic.  This is their page discussing Trolls: 

https://cippic.ca/en/FAQ/Copyright_Trolls

Interstingly, that site mentions the same actors we discuss at ELI

So far, trolls have mostly targeted works that can be easily identified in online searches, such as stock images and news articles. In Canada, Getty Images and Masterfile are the most active companies engaged in this scheme. Increasingly, film production companies, especially in the adult entertainment industry, target movies downloaded using peer-to-peer software such as BitTorrent clients. While trolls in this area are most active in the United States, one company issued demand letters in Canada before dismissing its claim.

It's interesting to note that sites advice to Canadians includes  list of options when negotiating with Trolls.
 

    Accept & pay the fee demanded.
    Negotiate for a lower fee.
    Offer a fee in line with what the company could expect for statutory damages (in Canada, $500 per work).
    If you qualify as an innocent infringer, offer the company $200 per work as an equitable settlement offer.
    Tell the company that the work has been removed and say that ends the matter (and risk being sued).
    Ignore the company (and risk being sued).

There are lots of other interesting tid bits. But as I don't know enough to put then in context of any Canadian rulings, I'll just let people read the site themselves.   For what it's worth, I found this site through a Canadian BLAWG. That site indicated one of the attorney's associated with the clinic was interested in collecting together information on demands from Getty; that was written in 2008. I've emailed the attorney to learn whether he remains interested. If he is, I will post his email so Canadians who come here can learn of the resource.

79

Getty Images Letter Forum / Re: Tape Recording Conversations

« on: July 08, 2014, 12:07:36 PM »

This post is stale but I wanted to update something I wrote long ago:

Here's the thing. You already know that "the copyright cow" probably doesn't like some people. And he might not mind "getting" some people. If you taped him in violation of laws of the State of Washington, and he found out, it would not be surprising if he tried to use the information of that illegal behavior to "get" the person who did the taping.

I already said I, myself, wouldn't tape without asking.  But certainly, I wouldn't tape in violation of the law if I thought it would give an enemy who wants to "get" me an axe to chop my head off. Why give them a weapon?

I live in Illinois. Back when I wrote this, Illinois itself was a "two party consent" state.  So my recording without getting permission from the other party would have been viewed as violating law in my own state not just potentially that of the other state if the call came from somewhere like WA state.   This has changed.

In March 2014, the Illinois State Court decreed that Illinois's two party consent statute violated the US Constitutions 1st amendment.

The digital media law project writes: http://www.dmlp.org/legal-guide/illinois-recording-law

In People v. Melongo, Docket No. 114852 (Ill. Mar. 20, 2014), the Supreme Court of Illinois held that Illinois' two-party eavesdropping statute, 720 Ill. Comp. Stat. 5/14-1, -2 (scroll down), was unconstitutional on its face. The statute made it a crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties to the conversation, regardless of whether the parties had an expectation of privacy. The Court held that the recording provisions of the statute, as written, adversely affected the First Amendment rights of people making recordings in a substantial number of circumstances where there were no legitimate privacy interests.  The Court further held that a provision of the statute prohibiting the disclosure of recordings likewise ran afoul of the First Amendment.

The Illinois Supreme Court doesn't speak for other states so I would still not record calls from WA state without permission. However, if the argument that a 2 party consent law violates the US 1st amendment, it's possible such an argument could prevail in other States that have similar laws.

That said: it is also worth nothing that exception clauses exist in some 2-party consent laws-- even those from WA state. For example the WA state law (which might apply to calls from a Seattle based office like Tim McCormacks) states"


http://apps.leg.wa.gov/RCW/default.aspx?cite=9.73.030

(2) Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.

So, in WA, it appears that if the call involves unlawful requests or demands recording 2party consent is no longer required; the same holds if calls are made 'repeatedly". Of course, we can all argue about whether the demands for money made on various calls alleging copyright infringement are or are not unlawful or whether they are of sufficient frequency to be deemed "repeatedly". But if the person recorded were to lodge a complaint, they would need to defend their demands as being lawful and calls as not being done 'repeatedly', as if either of those two apply, recording becomes 1 party consent.

I don't know if it's illegal to represent a claim as a debt, but I wouldn't be surprised if a judge frowned on such that sort of spurious claim. I also would not be surprised if a judge didn't see more than one or two phone unsolicited calls pressing someone to pay a copyright claim as potentially being "repeated".  I know I would see three as certainly falling in the category of "repeated".

Those who do receive such call might wish to look up laws in various states to see if the state has 1 party or 2 party consent. If it falls under 2 party consent, carefully check whether their recording doesn't fall under an exception to 2 party consent. Obviously, one can't check prior to the first call, but one can do so after the first call. A second or third call might easily characterized as "repeated"-- though that is a risk the person electing to record would be taking.

80

Hawaiian Letters & Lawsuits Forum / Re: Info on Woolf, Gafni and Fowler LLP

« on: July 03, 2014, 01:06:37 PM »

Thanks everyone!  I'm working on a post to provide details.  Sorry for the delay... so much to catch up on... stuff I've neglected during these past few months of terror.  Will try to get a post out this weekend.  Thanks for your patience.

Definitely take a breather. Have a happy 4th!

81

Hawaiian Letters & Lawsuits Forum / Re: Info on Woolf, Gafni and Fowler LLP

« on: July 02, 2014, 02:41:19 PM »

Yes. His argument was exceptionally bad. But by the time I read it, the case was dropped. I thought it best to merely report that.

That said: I googled to find the cases he mentioned in sufficient detail to find.  They were trademark cases (and so irrelevant) and the copyright case was an example of a judge awarding $200-- the absolute minimum permissible if there was indeed an infringement.  It was also a case where the defendants offered to settle for $3000, but the plaintiffs refused that settlement demanding $1,000,000.   The defendants had evidently made $600 on the sale of the infringing materials.

Not only did the judge not make his decision based on "simple arithmetic" of averaging the $3000 offerred with the 1,000,000 demanded, he awarded the plaintiffs  less than they would have gotten had they settled.

This case oferred up by Sutherland is a classic in showing the risk to plaintiffs who try to extract extortionate amounts (e.g. $1,000,000) for injuries that if they exist at all are minor (here, $600).  It is such a good example for the ELI side, that it's going to need a post of it's own!

82

Hawaiian Letters & Lawsuits Forum / Re: Info on Woolf, Gafni and Fowler LLP

« on: July 02, 2014, 01:36:00 PM »

DavidVGoliath,
I'm wondering the same thing. That's why I'm eager to see any legal documents as they become available.   Earlier on, I went to wikipedia to edumacate myself on 'with  prejudice' and 'without prejudice', and I came to suspect this will be 'without prejudice'. The reason is that the case had possibly not gotten far enough to even permit a 'with prejudice' ruling.   Specifically, wikipedia states

In general, the rule for whether or not a case is dismissed with or without prejudice depends on what condition the case is in and whether "jeopardy" has attached to the case. If jeopardy is attached to a case, a dismissal or a resolution is "with prejudice" and the case can never be litigated again. In the case of a trial by jury, jeopardy attaches when the jury is empaneled and a dismissal (for prosecutorial misconduct or harmful error) at that point must be with prejudice. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.

VKT asked for a jury trial, and no jury as impaneled, so I suspect any dismissal will be 'without prejudice'. But... that suspicion is based on my "education" which was acquired by reading wikipedia-- so take my guess for what it's worth.

That said: dismissed is a blow to the person who filed the suit.  From the VKT perspective, at best they need to start all over and remedy whatever screwup happened in the first place.  So this is good news for Peggy. 

We'll see if it stays "good news". Quite honestly, VKT started with one set of attorneys (Wright) switched to a 2nd set to file. Maybe VKT will switch to yet another set of attorneys and file in Vermont!   I still predict that if he does so, the award will be small.

--------- --------- --------- --------- --------- ---------

BTW: picking up on an earlier discussion, you asked me if I knew of precedents where a judge has awarded the minimum $200 levy on an infringer. I didn't at the time, but a commenter (Kevin Sutherland) who intended to 'evidence' to suggest judges do not hand out $200 statutory minimum awards  actually posted a case where the judge did do precisely that!  The case is  Bright v. Media Right, which had two defendants, 'Media Right' and Orchard.  In the case of 'Orchard', the judge wrote:

Second, the Court found that Orchard had proven that its infringement was innocent, and thus ordered Orchard to pay only minimal statutory damages of $200 per Album, for a total of $400. Id. at *8-9.
So here, to show evidence that courts are  unlikely to award $200 for innocent infringement, you have dropped in our lap a case where the court did precisely that. Orchard copied and sold two albums, but they proved they did not know they were infringing, so the judge assessed $200 per infringement against Orchard.

In contrast, the other defendant -- Media Right-- was unable to prove they were innocent. On the other hand, Bright couldn't prove they were willful. And the judge awarded Bright $2000 from that plaintiff. That tallied to a total of $2400. The Judge award no attorney's fees to the plaintiff.

This case was appealed to the 2nd Circuit who upheld the tiny judgement and lack of attorney's fees. They also upheld that the infringement was per album and not per song.  ( That judgement was appealed to SCOTUS and as far as I can tell, SCOTUS did not hear the appeal.  Kevin Sutherland appears to suggest otherwise -- with a ruling happening this year. But I believe he is mistaken. He also quoted from judge's statements in trademark cases to explain what a judge would do in a copyright case.)

For details see http://caselaw.findlaw.com/us-2nd-circuit/1519945.html

So, very small awards are not only theoretically possible, they sometimes occur and are upheld on appeal.

I suspect these outcomes with very small levies are relatively rare because the copyright owners who file generally do have to go to the expense of hiring an attorney. When the case is either (a) 'de minimis', (b) provably not-willful or (c) even just 'possibly willful but the copyright owner can't prove that', they will decide the possible outcomes range are (a) "losing  having to pay their own and  possibly the defendants attorney fees", (b) "winning" and getting $200 to offset their own attorney's fees and (c) "winning" and getting something like $2000 which is not enough to cover their attorney's fees. 

Attorney's acting on contingency will avoid these cases because they can't make any money. Those hired on an hourly basis might take it but will likely advise their client of the risks. At best the client will settle when the reality that they are writing checks and risk not  getting $30,000 dawns on them.   

In contrast, the cases that go forward tend to involve situations where the copyrighted material is income generating and the plaintiff can make a pretty good case the plaintiff not only caused monetary harm but knew the use was infringing.

Copyright holders who are not delusional about likely awards weigh things carefully. While it is true that some of them have little sympathy for those who violate copyright non-wilfully and feel frustration that pursuing even obviously willful infringers is expensive, it remains the case that judges have wide latitude and do sometimes deem a usage a violation, but give very small awards to the copyright owners. At least in the above case, the Orchard paid only $200 per album.

83

Hawaiian Letters & Lawsuits Forum / Re: Info on Woolf, Gafni and Fowler LLP

« on: July 01, 2014, 04:51:26 PM »

It is great news. It would be wonderful if this is a written document and we could post relevant documents on scribbed. That would help future people see that a suit was filed and.... dismissed!

84

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 10:40:01 PM »

For the record
exp( average( log_e($300)+ log_e($12000)) = $1897.367   So.... less than 6,150. And it's still "simple math".

85

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 10:37:43 PM »

DavidVGoliath,
I don't know the history of all precedents-- not even limited to California. Oscar might have a good idea.

On the simple math... if we were just to use "simple math" might propose using logarithms as it avoids the difficulty that otherwise, the 'average' is driven by he amount demanded. Example if we average 300 and 6000 on a log scale and then exponetiate, we get 1341. exp(0.5*(log_e(300)+log_e(6000)))=1341.641.

But if we average 300 and 6000  on a linear scale, we get 3000+150-- which is basically dictated by the 'demand' of 6000. We'd get 3000 if the person being pestered made a counter offer of $0 .  And it really doesn't make much sense that the person demanding could 'dictate' the 'middle ground' as having a floor that is equal to 1/2 of whatever they demand-- even if the more reasonable value might be $0.

By the way, for the math averse, we could get the logarithmic result by whipping out logarithmic graphpaper (available at many stores) plotting, drawing a straight line and finding the 'middle'. This sort of paper is pretty commonly used in... well... economics, banking (and also engineering.)   I have no idea what lawyers would use!

86

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 07:09:53 PM »

Granted, I don't know what their terms were back in 2005 - but the above is fairly clear with regards to their current content.

I suspect Webshots language was largely the same back then. I've never suggested that uploading to Webshots meant VKT has granted Webshot's purchasers licenses to display nor that he granted the other wallpaper sites to hand them out for free.

87

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 07:03:46 PM »

DavidVGoliath,
To be clear, I don't think anyone is suggesting that VKT will be awarded nothing if the trial goes forward. The issue is whether the award will be closer to $200 or $150,000+ attorney's feed or even in the vicinity of what he asked for in early settlement negotiations.  So the question is how the facts of the case interact with precedents. We don't know all the facts-- even Peggy doesn't. But we do have access to some evidence which would likely be presented in court.     

88

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 06:54:03 PM »

The "innocent infringer" defense under § 405 only applies to "authorized cop[ies] ... from which the copyright notice has been omitted and which [were] publicly distributed by authority of the copyright owner ..." § 405(b) (emphasis added).

Yes. But the "innocent infringer" defense under § 405 is the one where the 'infringer' pays absolutely $0.


 I was discussing the different infringer issue which is finding they did infringe but were unaware and had reason to believe they were not infringing.  lowering the fine to $200.


Here's the difference. In 405, we read:

(b) Effect of Omission on Innocent Infringers.— Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court.
(c) Removal of Notice.— Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords.

So this is where the infringer pays nothing: i.e. "no liability" under 504

Now turning to 504:
http://www.law.cornell.edu/uscode/text/17/504

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—

Note: 504 will apply 'Except as otherwise provided by this title'. So: 405 was 'otherwise'.  And -- of course-- if the defendant could prove the exception under 405, we ignore 504. (But I don't think that's going to happen. ) 

Now, let's look at the what we might call the 'unaware infringer'  in 504

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:

This is not the exception under 405, it's in 504 itself.  The ruling on 405 doesn't apply here-- the only issues seem to be whether (a) the infringer was not aware and (b) had no reason to believe. If both apply, the judge can knock the damages down to $200.  The defendant might be happier with $0, but that's not going to happen.

(BTW: I have no idea what precedents are here. It's just this is not the 405 language and I wasn't referring to that concept.)

89

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 11:57:01 AM »

To be fair, the letter does advise the recipient to seek  legal counsel.

Of course, as is the norm in these things, it assume guilt on all possible allegations. For example: We know that the absence of the authors copyright information probably does not indicate the removal by the website owner. Typically the 3rd party site offering the image for "free" does that.

We also know the actual minimum fine is $200 which the judge can grant if he accepts the argument that the person who used the image thought his use was not infringing because he thought he had a license. People can argue about what is 'reasonable' or 'reckless' or what have you, but many can and do believe their use is licensed because the site offering the image suggested so by advertising it for "free".  (This is not, btw, an argument about latches. But rather an argument about 'willful' and whether the user thought it was licensed.)

90

Hawaiian Letters & Lawsuits Forum / Re: Vincent K. Tylor Public Statement on Desktop Wallpaper/Screensaver websites

« on: June 25, 2014, 03:16:29 PM »

Thanks for the link to VKT's self-defense. (http://www.hawaiianphotos.net/VincentTylorcopyright.htm) It would be nice if he would expand a bit on claims:

I HAVE A WELL-DOCUMENTED RECORD OVER THE COURSE OF THE PAST SEVERAL YEARS OF SENDING DMCA TAKE-DOWN NOTICES AND ENFORCING MY COPYRIGHTS WHERE I HAVE FOUND UNAUTHORIZED USE OF MY PHOTOGRAPHS. 

He underlins "Well-documented record". Sadly, there is no link to anything explaining the precise actions he has taken. We know he has sent cease and desist / demand letters. Those aren't DMCA takedowns. If he has sent DMCA takedowns, I would be interested in seeing the documentations he suggests exists.

He also writes

TO CLARIFY: I HAVE NEVER SUPPLIED ANY OF MY PHOTOGRAPHS TO ANY WALLPAPER SITE YOU MAY FIND ON THE INTERNET TODAY. NOR DO I APPROVE OF OR ALLOW ANY SUCH WALLPAPER-SCREENSAVER USAGE OF MY PHOTOGRAPHS ANYWHERE.

Note the "TODAY" in 'YOU MAY FIND ON THE INTERNET TODAY'.  This is different from claiming he never supplied photos at all.

In 2012,  his pages at (http://www.hawaiianphotos.net/SiteMap.htm)  linked to "WEBSHOTS", a wallpaper site that advertized wall paper sites (and it was possible for people to get 1 day free subscriptions) I discussed that here:
 http://www.extortionletterinfo.com/forum/getty-images-letter-forum/free-baitpapers/msg4501/#msg4501
If you examine that post, you'll see that I archived VKT's HAN site at webcitation
http://www.webcitation.org/64ai2bj4N . The VKT page contained a link to
<a href="http://www.webshots.com/search?new=1&source=viewauthorgallery&queryAuthor=Vincent Khoury Tylor&querySource=gallery&tab=photos">
       <font color="#99CCFF">Webshots Screensavers</font></a></font>

This looks suspiciously as if VKT was aware of the screensaver site, and advertised its existence from his own 'hawaiianphotos.net'.  The link to the Webshots site has been removed from FKT's hawaiianphotos.net site and the images appear to have been removed from WEBSHOTS. So, his images are not available as wallpapers on that site TODAY, but the evidence indicates they once were and that he likely loaded them or if he did not, he was aware they were at that site.

Note that I am not the only one who saw these at webshots. We can find this conversation at http://photo.net/photos/VinceTylor

"Jill Placey , August 18, 2005; 12:12 A.M.

Wow, I've admired your work for a long time through Webshots. I can't believe so many of the gorgeous downloads I have from that site come from one talented photographer. Keep up the dazzling work!'

Of course, I would applaud his taking these large very high resolution images off Webshots (or getting them removed). But in fairness to those who described what he did or may have done in the past, it might be wise if he engaged the Webshots issue directly -- possibly telling us if he ever posted those there or whether someone else did so.

VKT also writes:

PLEASE NOTE: THERE IS A CONSIDERABLE AMOUNT OF MISINFORMATION AND OUTRIGHT UNTRUTHS BEING SPREAD BY A SMALL NUMBER OF WEBSITES THAT APPARENTLY DO NOT RESPECT THE RIGHTS OF PHOTOGRAPHERS AND OTHER ARTISTS TO PROTECT THEIR COPYRIGHTS.

Here it would be useful if VKT told us which websites were spreading 'misinformatino' and what bits of information are 'mis-information'. For example: did the images not appear on webshots? Did his site (http://www.hawaiianphotos.net) not provide links to the page at webshots? Is it untrue that one could get very inexpensive subscriptions and download skillions of images in that way? Was it not possible to obtain a 1 day free membership permitting people to download his images for free?