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Topics - Lettered

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This irritates me.  I'd be even more irritated if I lived in Nashville and paid taxes there.

Legal Controversies Forum / tattoos and copyright
« on: December 07, 2012, 09:08:05 AM »

This has me wondering about all of the Harley Davidson tattoos in the world.  For a lot of reasons, I wouldn't expect to ever see HD suing folks with their logo as a tattoo (hope Im not being naive), but where does all of this crap end? 

Do we honestly have to show up at the tattoo shop with a copyright release in hand now?  Is it really that bad?

Maybe the bulk of the professional legal community is content with all the chaos, uncertainty and ensuing potential legal fees being generated by our poorly thought out and poorly written copyright law ... so that it will never change?

Seems to be several here "riding out the storm".  This might be some comfort to those waiting out the statute of limitations (SOL) to see what Getty will do . . . assuming my interpretations are correct.  Assume a image is taken down in response to a demand letter on Jan 1, 2012 : this starts the 3 year SOL clock running, for both timely filing of a lawsuit, AND for actual damages calculation.  Let's say that suit is filed on Dec 31, 2014 (1 day shy of SOL).  That leaves 1 day of infringement for calculation of actual damages.  This is because only 1 day of infringement falls within the 3 year SOL period.  So if I'm correct,  after the first year, you've already reduced risk exposure by 33%, and it keeps going down from there.
I think this discussion is only applicable to images unregistered at the commencement of infringement (otherwise plaintiff is entitled to ask for statutory damages).
I think that the length of infringment is important because stock photography images are licensed for a time period of usage (less time requires less license fees) . . . and actual damages would likely be calculated based on reasonable license fees.
Would be interested to know if I've interpreted that correctly . . . comments welcome.

Getty Images Letter Forum / Vicarious liability
« on: January 11, 2012, 10:32:23 PM »
Just wondering if this might apply to some plaintiffs.  From reading I understand that the Vicarious liability occurs when
a) someone has the right and ability to control the infringing activity (but fails to do so) and
b) receives a direct financial benefit from the infringement .

So if some "infringer" (defendant) got the material in question off a free wallpaper site registered with Godaddy (who is apparently good about taking down offending sites when and if contacted), would not the above two tests be satisfied?  Could the defendent successfully sue the plaintiff for Vicarious liability, since he had the right and ability to ask Godaddy to remove the content but did not?

I know this isn't the "normal" application of this theory . . . but is sure seems to fit well to me.

Getty Images Letter Forum / Legal Fund
« on: December 24, 2011, 03:41:10 PM »
It seems to me that there is at least on higher profile case whose outcome might affect a lot of people on this site.  One in particular that comes to mind is the HAN case recently filed.  I think that cases like this have a strong potential to result in legal precedent that will help or hurt our community out as a whole.  Of course, by "our community", I mean "innocent infringers" .  

I have no idea the quality of the defense team, nor do I have any idea of the funding available to the defendants.  I do, however, worry that dangerous precendence could be set if a defense isn't properly funded and pursued.

Happily, the Advernet case (which defaulted due to funding) worked out in favor of the ELI community.  I think it had juuuuust enough funding to get some good arguments (thanks to Oscar) in before it went to default.  What if it had went the other way and what if the judge had awarded huge statutory damages, simply because the defense was underfunded and the compelling arguments never reached the judge's ears?  How nervous would that make some of us here?

Anyway, I for one, would be willing to contribute through the ELI site, to a legal fund that would compensate Oscar to submit an amicus brief in the more important cases as donated funds allow.  In short, as I understand it, an amicus brief is a way to present legal analysis to a judge of a case that one isn't a party to.  I think it is quite common and usually done to help avoid bad precendence being set.

I should say that I really don't have any "skin" in the game any longer as the statute of limitations ran out on my alleged "infringement" some time ago.  However, I still feel strongly enough about this to donate money to the fund I mentioned if it came into existence.

Also, I want to stress that I'm not supporing this to make it easy for blatant infringers to get away with their thievery.  I merely want to see innocent infringers get a fair deal when they find themselves in this situation. I think this attitude is shared by the overwhelming majority of the participants here at the ELI forums.

I have always strongly suspected that companies like Getty are purposefully sloppy with their IP protection because infringement demand letters can be so lucrative.  Just a strong suspicion on my part and Ive seen no direct evidence of this.

However, there seem to be some companies (not Getty that I know of) that may be taking it to a whole new level:

Is the contract language in the above links a smoldering gun (or even a smoking gun) that this is indeed happening?  Is this sort of behaviour legal in the US?

Someone needs to put a stop to this.  I hope they pick on someone with the resources to do it.

I noticed in the articles (which I dare not quote verbatim :) ) that Righthaven appears to be seeking $150,000 statutory damages.  My understanding is that statutory damages are NOT recoverable unless the material was registered before infringment began, or registered within a certain amount of time of publication.

Does this mean that each and every newspaper article has been registered before infringment began?  

Maybe its all so quick (publication to infringment to getting caught) that they still have a window to register in time to sue for statutory damages?

Or are they asking for something that they arent entitled to?

I can hardly imagine any news organization going to the trouble and expense of registering copyrights for each and every article they print.  

just curious . . .

Righthaven Lawsuits Forum / DMCA protection NOT automatic
« on: April 21, 2011, 12:00:12 PM »
... I hope everyone who runs/owns a website that allows users to post are aware of this:

Righthaven Lawsuits Forum / i dont get it
« on: April 20, 2011, 11:42:09 AM »
What could they legitimately threaten you with?  What could they possibly recover from a 2 paragraph quote from a 30+ paragraph newspaper article.  Even if they got past a fair use defense, I seriously doubt newspapers are pre-registered with the copyright office, which would bar recovery of attorney fees and statutory damages.  What does that leave them with?  A few cents for every hit on some obscur blog?  Would that even amount to hundreds of dollars in many cases?

Those questions aren't rhetorical ... I really am curious as to what they could recover from an obscure blogger who quoted 2 paragraphs from a newspaper.

I'd personally like to see a list of all Righthaven media partners so that I can make sure I never spend a nickle on their publiciations.

Getty Images Letter Forum / Corbis v Starr
« on: February 15, 2010, 03:37:02 PM »
Regarding Corbis v Starr

This case seems a lot like the typical case here, except that the images were probably registered, making things a bit more complicated for the defendants (compared to cases where images aren't registered).

The way I read it the court found the website owner vicariously liable and the website designer directly liable. No big surprise to anyone who has read over the material here on Mathew's site. No big deal as I think the the more important issues are damages and attorney fees.

It appears that the court didnt rule on the issue of willfullness and damgages (including atty fees), pending a resolution of "issues".  One of the "issues" , it appears to me, is that willfullness on the part of the website owner cannot be established (because it clearly wasnt willfull, in my opinion).  To complicate matters for Corbis, it even looks as if they may even be having trouble showing willfullness on the part of the web site designer.  

Anyway, I was wondering if you had been following this case, Oscar, and if you know when a ruling on willfullness and damages is expected.

Getty Images Letter Forum / hypothetical infringement
« on: December 22, 2008, 01:44:44 PM »
I'm still trying to understand how you can be liable for someone else's work on your website.  Here are a few made up examples that I find just as absurd as the Getty example.  Would these examples be different somehow, as compared to someone who unknowingly bought and displayed an infringing web site design?

1) What if a million people who ordered a Ford with a particular trim option, and it turned out that Chevrolet had the copyright on the particular trim design.  Could Chevrolet demand that the million Ford owners remove the trim and pay damages?

2) What about a thousand people who bought and displayed a bumper sticker whose manufacturer had stolen the design?

3) Or how about ten thousand people who brought a Christmas display (from manufacturer who had stolen the design) and displayed it on their lawn?

Getty Images Letter Forum / Copyright Small Claims Court
« on: December 06, 2008, 07:36:45 AM »
Apparently photographers have been pushing for a small claims procedure to make it easier and less expensive for them to pursue infringers.  The copyright office has a statement on its website here:

Particularly striking to me is the following statement from the above link. It appears to me that the copyright office is sadly uniformed ....

"Some have also asserted that the existing system for adjudication of copyright infringement claims can in some cases be too burdensome for defendants who are accused of infringement. While it is not difficult to imagine that a wealthy plaintiff in a copyright infringement suit could make the litigation very costly for a defendant of modest means, the Office is not aware whether this has in fact been a significant problem."

Getty Images Letter Forum / Can copyright law [likely] be changed?
« on: November 29, 2008, 08:51:25 PM »
Assuming Getty is right about the copyright in the demand they sent me (they provided no proof) I am at worst an innocent infringer (first offense) unknowing victim of a third party web designer for an unregistered image.  I took the images down as soon as I received their letter.

Honestly, from a moral perspective, I dont think I should owe Getty images a single thin dime.  That said, I understand the current US law and I do believe as a law abiding citizen, I owe (IF they provide proof of copyright) them something (though certainly not $1000 + per image!).  I would be willing (even though I disagree with the law) to pay them what the law allows ($49 low resolution web use license fee, or $200 statutory damages).

In the very least I think website owners should have zero liability where they can show they are unknowing victims of third party designers or image resellers ... especially on first offenses and especially when they imediately take the images down when challenged.

Is there any way we can capitalize on Mathew's and Oscar's hard work here on this site, and on the community outrage against this sort of behavior, to lobby (as a group) for a signifcant change in copyright law that makes sense?   Is there anything we can do as a community effort to be heard and have a chance of some change to the existing copyright law?

Getty Images Letter Forum / Did Getty sue and lose in Germany?
« on: November 18, 2008, 01:35:48 AM »
In German, but I think it describes a case Getty lost?  Is anyone's German good enough to summarize in English?,1518,547234,00.html

Also came across this German Forum ... similar to eli forum perhaps?:

Getty Images Letter Forum / damages
« on: November 17, 2008, 01:02:35 AM »
Hi all.  Im trying to figure out what happens if one of these goes to court.  For most of us I think innocent infringment would be easy enough to prove.  Also, I'm guessing that for most of us the copyright wasnt registered.  That leaves actual damages, the way I understand it, as the maximum Getty would be able to get.

I did some searching and found a case talked about here:
where it appears to me that the court rejected the notion of multipliers and penalties added to actual damages.  The following quotes from the article got my attention:

 " "in litigated cases, infringement does not make a copyright more valuable.""

Im trying to figure out how much I might have injured or damaged the market value of Getty's copyright.  I never would have paid anywhere near the 4 figures they are asking for the little photo (nor would I have stolen it, btw).  I simply would have instructed our [third party] web page developer to find something for $5 or less or to just not use any photos at all.  So how could Getty have been "damaged" by my innocent infringement?  I say the damage related to lost license fees is closer to $5 ... would a judge agree?

Also, isnt Getty saying they are also trying to recover costs of finding the infringement?  I wouldnt think that could be considered a damage caused by the infringement, as this cost would have been incurred whether or not they had found the infringement.

So, the way  I see it, from my layman's point of view, the most I feel I would owe Getty would be a few bucks for the time it took the intern to write me the letter to ask me to take the photo down and whatever a similar photo ($5?) would have cost at places where people like me would shop for photos.

any thoughts??  what would a judge be likely to award Getty for the innocent infringement of a single photo?

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