Messages

91

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

« on: August 11, 2012, 09:48:17 AM »

Great work, Dee. I couldn't agree more about VKT's negligence with his images. He may be guilty of abandoning his copyright or sleeping on his right to enforce his copyright, especially for the ridiculous sums he is asking. As you say, the amounts he claims are based on the client's estimated ability to pay, not on any kind of a fair usage scale.

Even while going through a case the man is busy registering images with the US Copyright Office. Just last June 4, VKT registered an image titled "Big Island Coastline - B-22" which he claims is from 2003. What's interesting about this image is that it does NOT appear to be a baitpaper image at all. In fact, there is a very short list of images that match it on a Google images search.

http://www.hawaiipictures.com/picture_detail/99999-411/

I bet this image is going to be used for a claim soon. There is actually a short list of websites that appear to be infringing on this image.

Why else would VKT suddenly run to the copyright office and register a 9-year-old image? With this image, the defendants won't have the baitpaper defense because it's not out there as bait.

Here's the registration info for that image:

Type of Work: Visual Material
Registration Number / Date: VA0001821752 / 2012-06-04
Application Title: Big Island Coastline - B-22.
Title: Big Island Coastline - B-22.
Description: Electronic file (eService)
Copyright Claimant: Vincent Khoury Tylor, 1962- . Address: P.O. Box 510164, Kealia, HI, 96751, United States.
Date of Creation: 2003
Date of Publication: 2003-08-31
Nation of First Publication: United States
Authorship on Application: Vincent Khoury Tylor, 1962- ; Domicile: United States; Citizenship: United States. Authorship: photograph(s)
Alternative Title on Application: 1 Photograph Published on Aug. 31, 2003
Rights and Permissions: Vincent Khoury Tylor, P.O. Box 510164, Kealia, HI, 96751, United States, (808) 823-1263, [email protected]
Names: Tylor, Vincent Khoury, 1962-

Dee, I wanted to mention that I also approached a webmaster from one of the numerous baitpaper sites by asking them if they were aware that the images they were offering as free wallpaper were copyright infringements. The webmaster did not know since a "guest blogger" put up the images as a post on their blog. The webmaster was suspicious of my approach; he thought I was selling something or scamming. I told him I just wanted to warn him that he was violating someone's copyright and that he was also seeding for the copyright owners (HAN/VKT), who go around making extortionate claims for using those images.

I guess he eventually believed me. First he took the images down, then later he took the whole post down. I have to assume they did not realize what was going on and thought the post was "fair use". At least in this case I don't believe they were intentionally seeding the images, but I did not communicate with the person who actually posted the images on that blog.

92

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 11, 2012, 12:08:44 AM »

Actually, search engines specifically qualify for the Safe Harbor provisions:

http://www.chillingeffects.org/dmca512/faq.cgi#QID127

Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?

Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.

There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions:

• Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
• System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)]
• Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)]
• Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]

93

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 11:56:10 PM »

I'm not sure DMCA applies exclusively to ISPs, but you may have a point there, S.G.

If someone accuses you of infringement by filing a DMCA request with Google, they're filing a legal affidavit and there are penalties for filing a false claim. Google will notify you immediately about the claim and you have a certain time period in which to respond by filing another affidavit claiming the other party is wrong and why you say so. If you don't respond, Google assumes the complaint is valid.

They also study the complaint to make sure it's coherent enough to be plausible. They don't just take anyone's word for an infringement.

The reason there are so many complaints may have something to do with the amount of scraping that's going on and with the increased importance of avoiding content duplication. Even if one didn't use to care about being scraped, now it could result in lower search engine rankings which means a devalued brand for companies with a heavy internet presence. Now one is forced to consider the SEO cost of ignoring the duplication of one's content.

After the big Panda/Penguin shakeup, I bet a whole lot of webmasters and SEO technicians started to get more concerned with content duplication issues.

94

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 11:32:34 PM »

Google will remove URLs from search results upon filing of a formal DMCA removal request. As Robert mentions, they also pioneered reporting each request they receive to ChillingEffects.org to keep the whole deal transparent.

Like Robert says, the number of requests are staggering and they involve all kinds of intellectual property, such as music, software, text, images, artwork, etc.

The other reason they will remove URLs from search result pages is trademark infringement, but that's a different process and a different form than the copyright infringement removal request.

In any case, I think Google is trying to cover their bases from being dragged into copyright infringement litigation by voluntarily adhering to the DMCA safe harbor. I'm not saying it's legal. It seems to me that they don't care how the legal disputes are settled, they just take the requests and process them in an automatic fashion so that they don't get dragged into the disputes.

Was the DMCA safe harbor intended only for ISPs? I thought there was some latitude to include other types of operators.

95

Legal Controversies Forum / Re: Google to start devaluing sites

« on: August 10, 2012, 07:38:26 PM »

Of course Google is going to play the "safe harbor" game. The rule was built for that very purpose. Many critics claim Google and GoDaddy roll over too easily when someone makes a DMCA removal request, but what can they be expected to do? They can't take sides unless the claim appears fatuous at face value or the paperwork submitted is incomplete or defective in any way.

If someone makes a false DMCA removal request as part of a black-hat SEO attempt, they're exposing themselves to criminal charges. If one is wrongly accused with a false DMCA removal request, one can appeal to Google or the ISP with a counter-notice and usually get the content reinstated if the explanation is reasonable.

Google also appears to be reacting to the post-Panda/Penguin world of SEO. Since they've made it such a no-no to have duplicate content, they are responding to webmasters being ever more sensitive to having their rankings lowered by third-party sites who scrape their content. I think Google is being consistent by being responsive to DMCA removals — they pretty much forced the situation.

Webmasters reporting websites for copyright infringement are basically helping Google decide which source was the original and which source was the duplicate. It makes sense that if a site gets reported many times for scraping other people's content, they're probably a low-quality site dealing in cheesy black-hat SEO tactics and other such distasteful spammy practices.

You can see how Google benefits by taking a back seat and watching the DMCA takedown tournament play out.

96

Getty Images Letter Forum / Re: Haters

« on: August 10, 2012, 07:19:00 PM »

I wonder how many people have taken that shot of the Brooklyn Bridge with their phone camera. Technically, each and every one is a "copyright owner" of that image.

97

Getty Images Letter Forum / Re: Harassment lawsuit against Getty in small claim court?

« on: August 08, 2012, 04:14:57 PM »

Rock, you could just ignore them until they comply with your request for proof. They're the ones who say they have a claim. The onus is on them to prove it either by complying with your request or taking you to court.

Matt's right about small claims court. That's the wrong venue if you're going to claim emotional distress resulting from their harassment. Their letters should really not be any more distressing than repeated email phishing attempts unless and until they provide hard proof that you committed an infringement and that they have the right to enforce the copyright in question.

If their letters pretend to treat the matter as a "debt collection" instead of a legal claim, then you have some protection granted by the Fair Debt Collection Practices Act. Here's some information about that:

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre18.shtm

This ONLY applies if Getty is treating the matter as a debt collection, or having a debt collection agency contacting you about payment.

98

Getty Images Letter Forum / Re: An Experiment Against Getty

« on: August 06, 2012, 12:05:26 AM »

Great stuff, Greg. The transparency of your campaign makes a stark contrast with the secrecy the trolls like to operate in. Thanks for sharing your progress with the forum.

I did have trouble viewing the Ohio Attorney General's letter. For some reason I got a blank page. I was able to read your response to them; nice work lobbying for an investigation of Getty's "strategic litigation" model.

99

Hawaiian Letters & Lawsuits Forum / Re: Hawaiian Art Network & V.K. Tylor Answers Alohas Counter claim

« on: August 04, 2012, 11:32:49 PM »

It's not surprising HAN/VKT are denying all of the charges. It's interesting that APS is claiming that HAN/VKT are guilty of "laches" — possibly because of the obvious lack of diligence protecting their intellectual property.

They also refer to "illegal webcrawlers" which I assume must be a reference to PicScout. However, they don't really elaborate on that topic much. I suppose these arguments will be made during discovery.

Thanks for the post, Robert. Did you find it on Pacer?

100

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: August 03, 2012, 10:36:13 PM »

S.G., this is the original link. I guess the tinyURL version didn't work for you? Hope this huge URL does, it's a very interesting read.

http://books.google.co.cr/books?id=SUErZdbvcOkC&pg=PA195&lpg=PA195&dq=ronald+guzman+polska&source=bl&ots=BoYO_rOnQz&sig=3C-iusl_hf3qOZDkFomKjIfaPVM&hl=en&sa=X&ei=RzocUPbgE6Pz0gGQpoDQCA&redir_esc=y#v=onepage&q=ronald%20guzman%20polska&f=false

101

Getty Images Letter Forum / Re: Why do people HATE Getty Image?

« on: August 03, 2012, 05:08:37 PM »

Here's a recent example of a really disgruntled photographer lashing out at Getty (and AFP images):

Daniel Morel is a professional photographer and was in Port-au-Prince when the earthquake happened. He immediately started taking photos and made some of them available in high resolution through Twitter/Twitpic. The photos were retweeted and an AFP editor downloaded them and shared them with AFPs own subscribers as well with Getty Images who resold the photos as well. In total 820 copies of Morel’s photos were sold.

http://sm4good.com/2012/05/14/photographer-sues-afp-120-million-twitterphotos/

Looks like this photographer is executing some very effective trolling Jiu-Jitsu on Getty/AFP.

102

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: August 03, 2012, 04:59:31 PM »

I would like to believe that the precedent is what Judge Ronald Guzman ruled, partly because I tend to agree with it. But for a number of strange reasons, it is not:

http://tinyurl.com/c3r3qmk

The state of the art for this issue is that "it varies from judge to judge," according to this book excerpt.

103

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: August 03, 2012, 12:24:15 AM »

Case history has generally seen Wayback Machine printouts accepted as evidence with some authentication possibly required, such as an affidavit from an Archive.org operator. The standard appears to be that unless one can prove that Archive.org is biased or faulty in some way, the evidence from the Wayback Machine is generally reliable. In the case that Jerry points out, the plaintiff (Telewizja Polska USA, Inc.) failed to demonstrate that the Wayback Machine printouts were either biased or unreliable:

...the court relied on the affidavit of “Ms. Molly Davis, verifying that the Internet Archive Company retrieved copies of the websites as it appeared on the dates in question from its electronic archives.” The plaintiff “presented no evidence that the Internet Archive is unreliable or biased” or “denied that the exhibit represents the contents of its website on the dates in question” or otherwise “challenged the veracity of the exhibit.”

Source: Proving Web History: How to Use the Internet Archive http://tinyurl.com/84ldxbl

Here's another opinion on the Wayback Machine's admissibility as evidence:

Even more dubious is content obtained from older versions of a website. If such content has not been archived by the operator of the website, the proponent may be forced to seek the admission of the website content as archived by the Internet Archive Company at http://www.archive.org. Authentication of such evidence may be accomplished through testimony or affidavit that the Internet Archive Company retrieved copies of the website as it appeared on the dates in question from its electronic archives. Though “the Internet Archive does not fit neatly into any of the non-exhaustive examples listed in Rule 901” and “is a relatively new source for archiving websites,” at least one district court has held that, absent evidence that the Internet Archive is biased or unreliable, or evidence contesting the veracity of the proposed exhibit, such testimony or affidavit is sufficient to satisfy the threshold requirement for admissibility – that is, a prima facie showing of genuineness.

Source: The admissibility of electronic evidence under the Federal rules of evidence http://jolt.richmond.edu/v17i2/article5.pdf

I guess the answer to Jerry's question is that so far, Wayback Machine evidence has been allowed, but it has not been challenged very much in court. Specific instances of the Wayback Machine captures could be challenged on technical grounds, such as being incomplete or having been altered by Archive.org's spidering process. It appears that has not happened yet.

104

Getty Images Letter Forum / Re: An Experiment Against Getty

« on: August 02, 2012, 12:05:38 PM »

Very nice, Greg! All points well made.

105

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: August 01, 2012, 04:34:40 PM »

Jerry, I found a very interesting article about this very same topic:

http://tinyurl.com/84ldxbl