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Topics - Ethan Seven

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Higbee & Associates posted a link on their website to a court order for a copyright claim involving to RM Media images that were offered via a Creative Commons license.  The judge awarded RM Media nearly $20,000 in damages.  Most of the damages came from copyright and 1202 violations. 

The order is posted at http://www.higbeeassociates.com/practices/copyright-law/

Some takeaways:

The judge awarded an additional $10,000 for violations of section 1202, which pertains to the removal of copyright management information, among other things.   That is more than the $7,500 he awarded for the copyright violations.   

The court did not just rubberstamp RM Media’s request for damages.  The order was detailed.  He gave RM Media a lot, but not everything. The judge even reduced the requested amount of attorneys fees to $1650, which was required by the local rule.

RM Media seems to be comfortable arguing the validity of its claims and business practice of suing when people do not buy a license or comply with the Creative Commons license terms.   It will be interesting to see if this has an impact in their defense in the case against RM Media in NY.  That case has not moved since Higbee filed a motion to dismiss.  I check every week. 

This was a default judgment. The merits and context of default judgments was discussed thoroughly on a similar thread at https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/

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Getty Images Letter Forum / Change of ownership at Getty
« on: September 17, 2018, 02:13:19 AM »
I wonder if this will prompt any changes to how and how often they pursue infringements.

https://petapixel.com/2018/09/05/getty-images-to-be-owned-by-the-getty-family-once-again/

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I just saw this on RM Media’s website.  It predates the filing of the NY case.  But may have been posted in anticipation of it.

http://rmmedia.ltd.uk/why-rm-media-ltd-uses-creative-commons-licenses/

Why RM Media Ltd Uses Creative Commons Licenses

Every month tens of thousands of people use our images to add meaning, interest and value to their website or other marketing material.  There are nearly 2,000,000 of our images in use on the internet.

Our image library consist of more than 30,000 images.   A portion of these images can be licensed by either paying a modest price or complying with a Creative Commons ShareAlike 3.0 (CC BY-SA 3.0) license. 

We are proud to make some of our images available via a CC BY-SA 3.0 license.   The link required as a condition to use our images provides us significant value because backlinks to our websites help our websites perform well in search engines.    The required attribution also helps build our brand and increases the use of our images.

Of course, it also makes us feel good to share.   The CC BY-SA 3.0 license makes our images available to those who cannot or would rather not pay money to use them.   The CC BY-SA 3.0 license also allows users to improve or modify our images to meet their individual needs.

The CC BY-SA 3.0 license is a simple industry standard license that is clearly summarised in 56 words (https://creativecommons.org/licenses/by-sa/3.0/).   Our labelling of our images as CC BY-SA 3.0 is clear with each page containing six or more references to the license and attribution requirements. As a result, our images have been properly licensed millions of times.   

Making intellectual property available via a Creative Commons license is something that government and courts encourage.  Every country and court that has addressed the issue has confirmed that offering a Creative Commons license does not diminish the copyright owner’s right to protect their property. 

Despite the clarity and simplicity of the licensing requirements, a small percentage of users choose to not comply with our licensing requirements. Just like any other copyright holder or business, we must take steps to protect our business and intellectual property.

Accordingly, we do enforce our copyrights against some users who do not properly license our images.  Historically, we have only initiated enforcement against those businesses who do not license the image and then use our images to make a profit.  While we have been forced to file lawsuits, we only do so after making several attempts to resolve the matter outside of court. We have never knowingly pursued claims against those who have used our images for personal, non-commercial projects. 

We are very proud and grateful for all those who properly licensed our images.   The proper licensing allows us to continue to create new and highly useful images.  We look forward to continuing to make many of our wildly popular images available via a CC BY-SA 3.0 license, and, hopefully, providing inspiration for more creators to do the same.

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I came across something interesting this weekend while trying to compile a list of results on Higbee’s copyright cases (an off again, on again late night project that is taking way more time than I thought.  They file a lot of lawsuits and I am focusing on ones that have motions filed). 

Anyway.

A New York based law firm is representing itself in a lawsuit against RM Media, Nick Youngson, Higbee & Associates and Matthew Higbee.    The case is Federal court in the Southern District of New York.  The Plaintiff is asking for declaratory relief stating that the use of one of RM Media’s photos does not constitute copyright infringement and for damages under a New York State consumer protection statute.   A license to use the photo was made available for sale or via a Creative Commons license. 

Higbee Associates has filed a motion to dismiss on behalf of themselves and Higbee, not RM Media or Youngson.   There is no indication that RM Media or Youngson, who are in the UK, have been served.   

While it will be fun to watch and it is impossible to predict what a judge will do, I do not think this will be a problem for Higbee or RM Media. 

Higbee’s motion to dismiss raises several solid defenses, including that they are not a party of interest to the copyright claim, that their communication was protected by New York’s litigation privilege, plaintiff did not incur damages, and that the plaintiff, who is a law firm, could not reasonably argue that they did not understand the contract, which is a Creative Commons contract.  Defendants just need to prevail on one defenses to win the motion to dismiss.  Plaintiff’s opposition is due in about 12 days.

Plaintiff is arguing that the language on RM Media’s site conveys a license for free and that the user’s failure to provide attribution is a violation of a contract, not a violation of copyright law.  In lawyer’s terms, they are saying the attribution is a violation of a convenant, not a condition.   It is a fact specific determination that will be largely based on NY state law.  The consumer claim essentially says that defendant’s demands are deceptive and violate section 349 of NY business code.   I doubt these claims will fly, and I also suspect that someone else, like Oscar Michelin, would have tried this approach if there was decent chance they would fly.

The outcome will not necessarily disrupt RM Media’s use of Creative Commons or enforcing their rights against those who do not meet the terms of the license.  If the judge rules in favor of the plaintiff, it may impact some of the pending claims in New York, but RM Media will likely be able to fix the problem going forward by tweaking the language on its page to make clear that attribution is a condition.

The complaint seems hastily prepared.   The case may be more about saying FU to RM Media and Higbee than it is about winning. 

Regardless, it will be interesting to see how RM Media handles being on the defense and what defenses they raise, assuming that they ever get served.   While it looks like RM Media has sued several infringers in the US, they have not been sued as far a as I can see.

 I hope this goes a few rounds.   More to follow.  I will post the pleadings online as soon as I figure out how to do that.

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Has anyone seen any evidence that Copytrack does more than just send demand letters?  They are not a law firm and obviously cannot file law suits.  I also could not find any evidence that the parties they are collecting for ever file lawsuits.   Has anyone seen any evidence that their claims gets escalated to a law firm or that they litigate claims?

I have a friend/client that received a letter asking for about 10 times what I think the normal licensing fee would be for the picture.  Just want to make sure it is safe to ignore Copytrack’s demands until they accept or make a reasonable offer.

Thank you for any insight.

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