Messages

91

Getty Images Letter Forum / Re: another copytrack letter

« on: September 08, 2018, 04:20:53 PM »

You should absolutely notify the collection agency that this is NOT a debt and the circumstances surrounding this supposed debt.  Further, you should inform them if they do not correct this situation, you will report them under the rules for FDCPA and possibly pursue litigation as allowed in the FDCPA for mischaracterizing a copyright claim as a debt. They are not the same.

It matters whether you intend to get a loan or not. Collection accounts can become a problem because accounts are sold like a commodity. It will make the rounds to different agencies and one day, one will misreport it to your credit report.

There have been been bad actors who got themselves a LOT OF BAD PUBLICITY because they tried to transform non debt claims into debts. It doesn't work that way. If someone tried it with me, it would blow up in their face because FDCPA is very clear in these matters.

A copyright claim is NEVER a debt no matter how many ways they say it is.

You need to stop having conversations and start writing and documenting. Your mistake is you keep speaking to them on the phone when you should be writing your responses. You have clearly inflamed them and they are foolishly lashing out at you in hopes of taking advantage of your lack of knowledge in legal matters.

Copytrack may not give a shit about it because they operate outside the US but the collection agency should care very much because they are in the U.S. and can face unintended consequences.

They sent this to  Recoverable Management Services  out of Columbus OH.  They left me a voicemail and I ignored that and they sent a letter now saying I have 30 days to dispute the debt.  I wonder if I should continue to ignore this as I don't see how they might have a case.

I don't ever plan on getting a loan but I'm not crazy about the idea of the invalid debt on my score either.

Some issues that kind of make it more nuanced:
I also understand that copyright may have a 3 year time limit for them to begin a lawsuit which should have passed as the image was originally published on a blog over 3 year ago.
There is also the fair use issue which I think is strong and Copytrack got pretty disrespectful and vulgar with me over email and I asked them to cease communications which they ignored and I also asked that they don't hire third parties to communicate on their behalf since this is clearly not an example of copyright infringement or I would consider that harassment I also added in that I don't see their case as an attempt to collect a valid debt.  Obviously they ignored that as well.  They are asserting I owe $1500 for a single image and it's an image that is used over 100 times online that the original photographer spent money to distribute publicly on pinterest so that he could attempt to sue people and on pinterest I've seen the image attributed to another photographer who is from the US and not the person they claim took the image.

92

Getty Images Letter Forum / Re: PicRights.com

« on: September 08, 2018, 04:10:20 PM »

Agreed.

Fair use is much narrower than what most people think. 

93

Getty Images Letter Forum / Re: PicRights.com

« on: September 08, 2018, 04:08:42 PM »

This response is not directly at Robert but his post compelled me to state my position.

I declined speaking to someone and promptly refunded the money (after they paid for an ELI Support Call) because I discovered that that person wanted to spend most of their time discussing the ins and outs of a fair use defense.

I generally cringe when people want to use a "fair use" defense. It doesn't mean they cannot do it. It just means, generally speaking, I want nothing to do with it because most of the examples I see really doesn't meet my threshold for a solid fair use defense.

It is a very "soft" defense, very subjective, and very much a grey area which I agree with Robert.

I tell people that they can use any defense they want because it is THEIR CASE. They get to choose.  But that doesn't mean I have to be onboard with it or want anything to do with it. And if they strongly stand by it, they should go consult with a lawyer who is very knowledgeable about fair use defenses.  It ain't me.

And many people still don't get it. Most of these copyright extortion operations don't want to file lawsuits. And so people are desperately looking for an absolute legal defense to shut things down. Unfortunately, I have been following this for a decade. There are very few airtight defenses in most of the situations I see. There are generally only "practical" and "soft" defenses available which are have been well covered here over the years.

An example of a "practical" defense would be someone living that committed an infringement on a personal hobby non-commercial website in their parent's basement and has no meaningful assets and income. A divorced woman who lives on government assistance and has 3 children who was trying to make a few extra bucks with the unintended infringement.  The law makes no distinction about infringements.

But if a pursuing lawyer knows and can verify the facts of the situation of the accused, I am fairly certain they are not going to be that motivated to go full steam ahead on any lawsuit against such parties. It isn't "practical".  Generally speaking, filing lawsuits against broke or impoverished people is not a good use of resources.  But copyright collections are not mind-readers.  Someone actually has to communicate it so they don't think the worse.

That is why I am not a big fan of just "going dark" without some consideration of the pros and cons of such an approach. Lots of factors at play.

"Fair use" defense is something YOU will have to stand by but it is generally very "soft" in my view.

I don't think it matters what the "site" is about...the court would only deal with the image in question, not the site as a whole. Fair Use is solely up to a judge to determine and can sometimes be a very grey area.. see link below:

https://fairuse.stanford.edu/overview/fair-use/four-factors/

94

Getty Images Letter Forum / Re: Pixsy Letter Even Though Image Isn't Hosted On Website

« on: September 08, 2018, 03:47:38 PM »

Agreed.

However, the fact that the claim is being pursued by a non-law firm and a company based in Germany should eliminate any fear of getting sued.  I have not heard of Pixsy even referring cases to attorneys in the U S. 

If you are fine with not paying for something you may have used, you can ignore Pixsy.

95

Getty Images Letter Forum / Re: Pixsy Letter Even Though Image Isn't Hosted On Website

« on: September 08, 2018, 03:46:18 PM »

Just to be clear on my admittedly biased and conservative position.  Most people should just not hot-link. In my view, it is too close to the line. And if you must hot-link, I would be transparent about it so as to not give any false impression that you are not hosting the image in question.

Actually, there is a difference between posting a link to an image vs. an embedded hot-link. One clearly displays a URL only or text with a link.  The other is embedding an image using a remote link. The  It used to be the ELI Forums would automatically display memes with any image link users posted on the forums. However, it created confusion because the software feature masked the fact it was actually an image link that someone posted but it implied that ELI hosted it which is not the case. ELI hosts very few images and memes itself.

I deactivated that auto-display function as to prevent any such confusion.  So, if anyone wants to post an image link, it is very clear that it is an outside link. You can't view it without clicking and going to that site hosting the image.

I have read many blogs which make reference to notable images. However, out of caution, they don't display at all, not even a snippet. They simply place a link to direct people to view the image of the source.

Professional bloggers are getting more cautious. They don't want the hassle of a copyright infringement accusation. They entirely discuss and comment on images hosted and displayed on other sites. But they will not even do an embedded hot-link. There is only a text-link to direct people who want to see the image being discussed.

96

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 09, 2018, 02:49:40 PM »

As always, you provide a well-written thoughtful response. My comments inline about UT (Unfairly Targeted).

Having anger is one thing.  Having lingering anger that drives one to make irrational and unfounded assertions, especially is the context of giving someone legal advice is quite another.

I don't think there is a widespread danger that people believe UT is a lawyer, paralegal, or other recognized authority on the subject. He is an angry victim stating his personal opinion. I hardly consider it "legal advice" in the traditional sense. However disagreeable it might be, he is entitled to his opinion.


That is a massive contrast from the mindset reflected in posts by Unfairly Targeted.  His posts insult any copyright holder who wants to enforce their rights.  He assumes every photo has no value (despite the obvious fact that it does because someone used it).   He always advocates ignoring requests for any compensation.   He almost always advocates harassing or making anyone’s life miserable if they try to protect their copyright.    I won’t even mention the constant gross misstatements of law.

UT espouses a more extreme point of view. However, I do sympathize with some broader points he tries to bluntly make. That is NOT an endorsement of a literal interpretation of what he writes but I think I "get" him. I take a lot of UT's responses as hyperbolic rhetoric than a literal interpretation. I also feel some of his "factual" statements are likely incorrect (such as those related to how many Schwabel Google entries there truly are. I interpret his rhetoric to means there are a LOT of them in Google.

As far as a contempt order arising from a judgment, DvG is also correct.   That is just one of many bad things that can result from a judgment.   Once there is a judgment, there can be a debtors exam.  Guess what you get if you don’t show up for one of those.   The correct answer starts with “C” and it also comes with a special coupon for free ride in the back of a police car, called a warrant. 

I give benefit of the doubt that this possibility exists. And maybe one day, we will see a copyright infringement case in which that happens where someone elects to plead/file "contempt of court" because of an unpaid judgment. However, I still think it is likely analogous to finding albinos in wildlife. They exist but very rarely.  We have just never heard of seen such a thing in the 10 years we been dealing with small-time cases (as compared to major media copyright infringement cases). 

97

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 09, 2018, 02:18:11 PM »

Thanks for elaborating.  Your link fits perfectly my layman understanding of "contempt of court" which is generally used for being disrespectful to the judge, staff, etc. plus some additional nuances. It gives examples of failure to pay child support which is something against deadbeat parents or not turning over records in a proceeding.

However, my general layman's opinion, is that simply not paying a judgment falls outside of that. I think initiating action to take over assets such as levying someone's bank account is actually more direct and relevant than trying to hold someone in contempt of court for not paying.

You may be correct that it could hypothetically happen but so is someone getting into a fender-bender every time someone drives their car. I see the civil contempt of court as a very, very low likelihood.

I don't know of any copyright cases where a civil contempt of court action has been lodged as a response to non-payment of a court order; with that said, there are two caveats to my statement: firstly, I am not a lawyer and, secondly, petitioning for a charge of civil contempt would certainly be an option in these types of cases... an extreme one to be sure, but one that exists nonetheless (see https://litigation.findlaw.com/going-to-court/civil-contempt-of-court.html for some information)

98

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 08, 2018, 02:36:19 PM »

DvG,

As a reminder, ELI and the ELI Forums were born out of anger. It continues to exist as an undertone. The anger of what many of us believe as unreasonable, disproportionate demands over low-value images and how there is this belief that everyone has to pay money for some of these de minimus infringements.

As has been said many times, most major media companies don't even engage in those types of tactics and trying to extract money from the little guy but they are certainly very firm in their take-down demands.

And there is a certain truth that many small-time photographers are using these demand letters as a way to monetize their inherently low-value work. This is not meant to be insulting. It is a simple fact that since the advent of digital photography there is a glut of imagery. Even with higher-value paparazzi photos, I have read many articles in the age of cell phones, paparazzi photos don't have the value as they once did 30 years ago. There are endless examples of why MOST imagery have declining value nowadays. Of course, I speak in general terms.  But so much of what we see, I consider "low-value" images.

And if I "asked" you nicely to pay me $1,000 because you have posted opposing opinions from what many of us believe, would you pay?  Or if you broke some ELI policy or rule and I "asked" for money, would you pay?  Of course not. You would either laugh, get pissed, or do both but not pay.  "Asking" for money "nicely" has little to do with it. "Asking" for money without a lawyer has little to do with it. In many cases, many people believe that a takedown demand is more appropriate as a first-response.

While we don't wear our anger on our sleeves, there is a reason why Oscar, I, and many long-timers do what we do on ELI. There is a reason why there are many loyal ELI readers and followers. There is a great deal of "anger" of how the demand letter racket works and we do a small part to counter that through informal education.

There will probably never be consensus on the issue.  DvG, you are the minority opinion here and I think you know that. You are paddling upstream here. Certainly, you are free to post as you have been because your posts are generally thought-provoking and informed. But you slant pro-artist just as our posts are pro-layman.

Bottom line, anger will continue to exist as long as people are demanding money from others in situations where people feel they should not have to. This is true here as well as anywhere else where money is involved.

You first posted about Schwabel almost four years ago. That's a long time to hold such a bitter, vitriolic grudge against someone who contacted you directly without lawyering up, asked you to stop using their work and pay a very reasonable, low figure settlement for your past use of their work.

That level of anger is a hot stone: the longer and tighter you hold on to it, the more you burn only yourself.

99

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 08, 2018, 02:12:13 PM »

Can you point me to a copyright infringement case where there was a judgment on a copyright infringement case where there was a "contempt of court charge"? It is my understanding that, at best, various collection efforts are made or perhaps seeking meaningful assets (if any) to collect unpaid judgments.

I don't see how there is any "contempt of court" issue by virtue of a simple unpaid federal judgment. As far as I have ever seen or heard in the context of small-time cases we discuss, unpaid judgments generally just sit unless the plaintiff feels VERY MOTIVATED and wants to incur the expense and aggravation to take collection types of actions. But even then, that is not "contempt of court".

My understand of "contempt of court" appears to be vastly different from what you are inferring. That is the first I have heard anyone mention of this in the context of the small-time cases we discuss here.

In the 10 years I have discussed with Oscar Michelen possible negative consequences of unpaid copyright infringement judgments, he has never breathed a word about "contempt of court".  Other phrases and possible actions were discussed but zippo about "contempt of court".

As a practical matter, I am very skeptical about "contempt of court" as a likely consequence. However, if you know of some actual cases, I am happy to follow-up on my end.

Stellar legal advice there, fella: just ignore a judgement if sued. Way to run the risk of a contempt of court charge - doubly so since copyright claims are tried at Federal level.

100

Getty Images Letter Forum / Re: Please help! Demand letter from Destination360

« on: August 08, 2018, 01:57:07 PM »

There are a number of prior Destination360 posts which cover many of the general issues you are asking about that is common to nearly all demand letters. It seems clear you are coming in cold. So you have a lot of self-education to do.

As a general reminder to people....

1. Everything is negotiable if you seek to settle the matter.

2. This applies to many legal matters, not just copyright infringement matters.  Being broke and having little money is actually a benefit in legally matter because it makes your path simpler.  You can't hire a lawyer if you wanted to.  You are not worth suing and there is little money to collect for the work and aggravation involved to the other party. There is very little for you to do because the desired end result is they want money which you purportedly don't have. It is almost a non-issue. They can't take what you don't have.

3. I've not yet seen or heard of any lawsuits related to Destination360 pursuits. I've not yet heard or seen the name of any lawyer that they may have escalated their matters to.  Even if there is a lawyer of some kind somewhere on their behalf, go back to Point #2.

101

Getty Images Letter Forum / Re: email from Leslie Burns

« on: July 27, 2018, 07:24:42 PM »

Technically, I think you are correct on all counts. Almost anyone can pursue any course of action if they are simply determined enough to do it and spend all the resources necessary to make it happen. But the question is.... will they?  Would it be profitable?  Generally speaking, only up to a certain point from my clearly anecdotal point of view.

On account of treaties such as WIPO and the preceding Berne Convention, it doesn't matter where you live with respect to where the copyright holder lives: all they need to do is retain counsel in *your* country to bring initiate a legal claim and/or file an action with the courts. On that note, a lawyer in any state can contact you to make a claim on that person's behalf but, if they actually want to take you to court, they have to do so in a relevant jurisdiction i.e. one where you have either personal residence or business interests. Out-of-state lawyers often partner with in-state lawyers, or they can obtain pro hac vice admissions if the particular state allows it.

102

Getty Images Letter Forum / Re: email from Leslie Burns

« on: July 27, 2018, 07:21:28 PM »

My comments inline...

As much as Unfairly Targeted may wish it were not the case, Copyright claims can have very significant damages even if the image was not timely registered.  The photographer can recover lost licensing revenue and a disgorgement of profit, which it sounds like there probably isn’t any profit generated on a personal twitter posting. 

Agreed. Legal issues aside, I would say that most decisions come down to the core questions:  "Is it worth the cost/expense/hassle of filing suit? Is it worth the small amount of negative exposure to the plaintiff to file a lawsuit? (public matter, small risk of countersuit, a protracted battle, etc.)  And even if a lawsuit is filed and assuming a judgment in favor of a plaintiff, is it collectible?

Seeding is highly unlikely.  It is also next to impossible to prove and does not give rise to any defense to copyright infringement.  At best, it might mitigate damages.

Seeding might occur in some cases but as a whole, I do not subscribe to the idea that there is a rampant conspiracy to seed their own images so that they can cash in on "catching" victims. Also, I don't really think it is quite that easy to "seed" the Internet with images unless they are "special" in some way.  I can post several photos I took of various items, places, and people in hopes it would be copied. But unless my photos were "special" in some way, I don't think I could PAY anyone to pirate most photos I have taken much less have it freely used!  I would starve to death attempting to "seed" any images I have and then waiting for someone to copy/pirate them for their websites!  I would say that there is a lot of piracy by anonymous, unscrupulous website owners that have their web hosts overseas. These are the sleazy operators who "seed" images by claiming they have "free desktop wallpapers".

From what I can tell, demand amounts created by copyright holders are a bit arbitrary, but so are the amounts that judges award.  There is no precise formula that either follow.  That being said, a plaintiff who rejects a reasonable pre-litigation offer can look bad in court.  The same is true for defendants who reject reasonable offers. 

"Reasonable offers" is highly subjective and highly dependent on circumstance and how skilled a person is in arguing for "their number".

It is good you have an attorney.  Leslie Burns is only admitted to practice law in CA. Your attorney can explain how that fact, your location, the copyright holder’s location and that state’s longarm statute can impact the odds of the claim going to litigation.

Leslie is generally not a litigator based on what I know. We knew about her clerical/paralegal work assisting PhotoAttorney a few years back.  She only became a lawyer fairly recently.  I see no evidence of her actually being a skilled litigator in a courtroom. I am not saying she couldn't get the job done in some simple situations.  But I would be shocked if any large concern would actually use her for a litigation-heavy case.  Sending out mailed and emailed extortion letters and attempting to collect is one thing. But for her to start habitually filing lawsuits against parties to actually win and successfully collect cash against defendants is a whole different animal.

As far as I am concerned, she ain't no Oscar Michelen.  Compare Oscar Michelen's extensive legal history in the courtroom in different cases in different venues.  In an earlier life, Oscar was also a former assistant prosecutor in NY as well. Oscar is still a a criminal defense attorney as well as an IP lawyer. He does these high profile exonerations on the side which has nothing to do with the ELI stuff but it is still impressive to read about. Oscar has also prosecuted IP cases as well as defended them. And once in a great while, he will do a First Amendment/free speech case having friends like the distinguished Eugene Volokh at his side!

103

Getty Images Letter Forum / Re: What should I do? Image Rights Inter. contacted me

« on: July 17, 2018, 10:11:44 PM »

You don't have to do anything you don't want. It is always your decision.  However, Alexander Wild does file lawsuits occasionally. I believe Wild uses Higbee to do so. I have not done a deep analysis of what cases Wild pursues and doesn't.

You can try to negotiate it down further. As a general statement not knowing your personal situation, it is worthwhile to consider settling in this particular situation because I would bet money if you don't settle now, it will be passed on to Higbee and trying to settle will be likely be harder and a higher amount.

I believe a professional photographer - Alexander Wild. Any suggestions what I should do? Do I have to pay the $1000 which I was invoices into 2 $500 payments?

104

Legal Controversies Forum / MOVED: What should I do? Image Rights Inter. contacted me

« on: July 16, 2018, 11:47:07 PM »

This topic has been moved to Getty Images Letter Forum.

https://www.extortionletterinfo.com/forum/index.php?topic=4766.0

105

Legal Controversies Forum / MOVED: StockFood America - Attorney Demand/Extortion Letter

« on: July 16, 2018, 11:46:55 PM »

This topic has been moved to Getty Images Letter Forum.

https://www.extortionletterinfo.com/forum/index.php?topic=4767.0