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Messages - DavidVGoliath

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It’s two times in two years and I used Google Images to get any images that are allowed without permission and we all know how the Youngson honeypot operation goes.

For the love of all that is holy, Google Images is not a stock photo library so, unless you want to run the risk of being sued, don't use it for that purpose.

All that Google Images does is create an index of content that exists on web servers and, when you key a query like "white crested duck", their proprietary algorithms will show you a selection of images that (partly or completely) matches your search terms.

What it can't do with 100% certainty is inform you whether any image you click on is subject to copyright, available under a Creative Commons (or similar) license, or if the copyright has expired (public domain). All it can do is point you to the website where it found and indexed that particular image and, even then, there may not be any further useful information with the degree of unambiguity that you may need to avoid the risk of infringing.

Photographers and Photo Publishers should also be held liable for sharing copyrighted work on forums which otherwise promotes free distribution.

What services/forums are those?

Or, at the minimum, set clear expectations and rules that if you upload your photos to Flickr or Pixabey, Instagram, Twitter, etc. and if your photo is shared without your authorization, you can't sue the publishing platform AND/OR ask for money more than what is the fair market value (which may very well be $0 in most cases).

Who sets the "fair market value"?

Lastly, if you don't want your photos to be shared without your permission ever, DO NOT upload them to open Internet platforms with global userbase AND keep them password protected on your own servers and website AND make it only viewable by your clients.

Ah, victim blaming. "If they didn't want to be assaulted/mugged/raped, then they should/shouldn't have [insert perceived 'asking for it' or 'not being careful enough' transgression here]"

Legal Controversies Forum / Re: Short history of copyright
« on: October 01, 2018, 09:23:36 AM »
Look at these numbers. 200 years versus 25, is, to me, mind boggling. The assumptions built on how you obtain or prove copyright went upside down in one generation. It is extremely interesting, and in my opinion, the notice requirement has shaped the cultural behaviors and understanding.

Two points I'd like to make.

Firstly, we're closer to 30 years since the last major revision to US copyright laws, but it's actually almost 20 years since the last significant revisions that addressed the advent of the modern internet era. Either way, the removal of mandatory notice of copyright was enacted to as to harmonize US laws with those of the rest of the world - in particular, countries that were party to the Berne Convention of 1887... so it could be said that the US requirement of mandatory notice was, at the date of elimination, out of step with practices in the rest of the world by a hair over a century.

Secondly, the removal of mandatory notification occurred several years before the widespread adoption of home internet connections, and a decade before Napster came into being. Prior to that, the duplication and distribution of copyrighted works required significant - and arguably deliberate - effort on the part of the entity doing the copying.

Fast-forward to the present and nearly everyone has the ability to find and make copies of most audio, photographic, or video files they could want to - all from a device that fits comfortably in their pocket, and often by means which render their acts anonymous and nearly untraceable.

To this end, education is critical to inform people as to the moral, ethical and legal consequences of procuring artistic works without permission or payment. The Napster debacle created, in some circles, an attitude of entitlement that ran along the lines of "this is how I want to be able to use the online ecosystem, legal or otherwise, and I will push back against efforts to curtail my ability to act in the way I want to"

As I have said in other posts: laws lag behind technologies, and lawmakers are not prescient: when 17 USC 512 was written into law almost twenty years ago, I doubt that anyone would have foreseen it as opening up the possibility of entire businesses springing up to exploit user-uploaded content, and profit massively from doing so... operations that would point to their legal immunity and say "Hey, it's not us, it's our users, okay?" with a wry nudge-nudge, wink-wink to one another.

The recent plenary vote in the EU parliament on updates to copyright laws in that territory has shown that lawmakers do, in fact, realise that the internet age has created significant challenges for the arts, and that their laws required amendment so as to strike the appropriate balance between the interests of creators, online services, and the public at large. It will be around two years before the (eventual) EU directive is parsed into the laws of each member state, and a few more years after that until the effects can be accurately gauged. I suspect that US lawmakers - and those in other countries too - will be keeping a close eye on the EU prior to considering any changes to their own legislation.

Question: If I have successfully obeyed the copyright laws 999 times and failed to notice one time where a CC photo got slipped into my twitter, and upon notification, immediately rectified my error, in that case, am I a copyright laws obeyer or a "gotcha victim"?

A single instance of someone discovering that you breached their license terms does not automatically mean that every single other published image you have made use of is non-infringing. I'd bet good money that if you fully audited 1,000 pictures to ascertain if you are wholly compliant with their license terms (as published across all your vectors e.g. website, blog, social media etc.), you'd find far more instances where you're breaching the terms of the license.

You've said that you outsource a lot of your work to third-parties; have you laid down strict rules/terms with them in your contract? Are you confident that they are always following procedure, and have you negotiated a "hold harmless" clause, where they pick up the cost of any legal claims their actions expose your business to?

Since your business is ultimately legally liable for the actions of your employees or contractors, it's incumbent on you to perform a level of diligence and the occasional random audit too.

Lastly - and though this is rare - it will sometimes occur that third parties offer images with CreativeCommons licenses that they have not authored i.e. they find pictures elsewhere and then distribute them as CC works. Again, it's on the user to perform a due diligence and keep track of where images were sourced, and under what licensing terms.

Most victims never wanted to buy or license that damn photo or whatever anyways.

... yet they were happy to make use of it when they thought there were no cost or consequence for doing so? Sounds a lot like "Not sorry for breaking the law, just mad at being caught"

My whole point is majority of pissed ELI members are pissed because they feel personal injustice from this whole gotcha business model.

And this is where our opinions will differ vastly. From the creator's perspective, actively keeping track of licensed and unlicensed uses of their work is simply a necessary part of doing business in the digital age. It's not a business model in of itself, merely one of the inevitable consequences of the internet age.

Personally, I'd be quite happy if my works were only used by my paying clients, even if that meant a decrease in revenues over time and/or the eventual cessation of my business in the event my services were no longer in demand.

However, if someone makes a value judgment that my photograph fits their needs for publication, then I have a reasonable expectation to be paid for their use of my work. It is a principle that, at its foundation, is no different than any other person, whether self-employed or an employee, expecting to be paid when someone else makes use of their time or skills.

If you are even a good enough photographer or artist, then don't be a coward and ask the infringers, hey, you want to buy my photo or license it. It's only $10 a photo? If the infringers ignores you, then by all means, go after them for that coveted $30,000 honeypot. In that case, those infringers rightfully deserve it.

I can't speak for other photographers, but the above is almost exactly the process I follow except when the infringer is an entity that regularly licenses images e.g. newspapers, media companies and so on. For the latter, I almost always refer the issue to legal representation in the relevant jurisdiction/country.

For everyone else, my base licensing rates for editorial images start at around €100, and commercial/promotional uses start in the mid-three to low-four-figure range. I don't pluck arbitrary numbers out of thin air, since I rely on FotoQuote to price my licenses. I also have a client base who pay my asking rates, so I have ample evidence of my loss of income, should it come to that juncture.

These facts aside, I'll tell you this: most of my polite and cordial messages, summarised as "Hey, you used my work - but you'll need to pay for doing so", elicit the following replies

Around 30% will apologize immediately and offer to pay - and I'll send an invoice/license to them, allowing continued use, along with a bespoke replacement image file with embedded copyright management information and a specific filename (this helps me track licensed uses of my works and, if an infringement of that file occurs, I can trace it back to the licensed source)

Perhaps 20% will say "whoops, sorry - we've now stopped using it" and then either plead poverty and/or say they're unable to pay the full fee. Depending on circumstances, I may entertain a lower-than-standard-rate payment or drop the matter entirely, but that is wholly contingent on communications being sincere and courteous.  With that said, on two occasions where I have dropped a claim, the same entities infringed on different works at a later date. "Fool me once..."

40% will cease using my work and not reply at all - forcing me to escalate the matter. Of these, perhaps half end up getting legal representation, kicking matters into the negotiation phase. At this juncture, I'll be weighing up litigation, and I'll be seeking significantly more than the licensing fee alone since I have had to incur additional costs at this phase.

9% will cease using my work, flat-out refuse to pay, and be... let's say grossly unprofessional or reckless in their responses. These are immediately passed over to a law firm, which usually results in either a relatively quick (6 ~ 18 months) settlement, or initiation of litigation.

1% will continue using my work and again be grossly unprofessional in their replies. I litigate every single one of these rare instances, and have not lost a single claim yet.

If you want to see positive change, there are two ways to tackle this --
1. Seek criminal actions against copyright trolls (Getty, Pixsy, et. al. as well as photographers who have made more money from litigation than selling their photos.

You're getting a bit tinfoil-hat there... the ability to seek redress for civil grievances is one of your First Amendments rights. Laws exist to serve as mechanisms to right wrongs, but also to deter (not prevent) acts from occurring in the first place. With respect to copyrights, there is sufficient case law to support this view

"[The infringer] cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law.”, Iowa State Univ. Res. Found., Inc. v. Am. Broad. Cos., 475 F.Supp. 78, 83 (S.D.N.Y.1979) aff'd, 621 F.2d 57 (2d Cir.1980)"

2. Seek to push for amends to copyright laws.

A sound proposition and this very thing is playing out right now - see

DvG, I have two questions for you:

1. Do you think the current copyright laws are clear, concise, and most importantly fair (with no room for improvements)?

That would depend on the relevant jurisdiction :)

Laws are always evolving, but are often far slower than business practices and technologies change. For the past few weeks, I was very actively involved in the discussions and debates regarding the amendments to copyright laws in the European Union, where I live. I am both a creator and consumer of copyright works, and I know there is a fine balance between the interests of the public and those of property owners - a balance that was amply described in the United Nations Declaration of Human Rights as Article 27.

By discouraging and scaring common people here on this forum, what do you gain? Boost to your ego? Satisfaction of trolling? Or do you feel smart thinking, I am a contrarian.

I don't believe I'm discouraging or scaring anyone; I offer up counterpoints and opinions from the perspective of an active creator working in the visual arts field. If I think that someone posting here may have a flawed opinion, I may choose to reply to them if I feel I have pertinent facts or other information of relevance. Like I said in an earlier posting, you would likely be surprised that I have more in common with many of the people posting here than I have differences.

For example, you clearly do not have my interests at hand. So why do you expect I engage with you? Or anyone for that matter. In this fight, I have my skin in the game. You don't.

I have skin in the game every single day because I believe in fighting for the rights of all creators, so as to ensure that their work is not used without their permission and/or fair payment or, at the very least, on terms that are freely negotiated by all parties in advance, and not the "better to ask forgiveness than seek permission" modus that has become increasingly commonplace over the last twenty years.

If someday you can understand this basic principle, you may very well be surprised by discovering many other better things are out there that deserves your limited time on this planet.

Being an advocate for the arts is, as I see it, a perfectly fine use of my time.

Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

The short version? Yes.

The longer version, with pertinent information, is here:

Copyright laws is in the urgent need of updates. Particularly the "statutory clause." Without, the blanket, unclear, muggy statutory clause, 99.99% of these cases are worth just the Spam folder.

Are you alluding to wanting statutory damages eliminated from the range of possible penalties available to a plaintiff when filing an infringement claim in Federal court? I just want to be clear on your point of view.

Under copyright protection laws and Creative Commons community guidelines, the first step towards protection of any intelectual property is to send a "ceise and desist". Not, threats and unreasble money demand. This is a pure form of harassment.

Nope: this is pure fantasy.

US copyright laws mandate no such thing, and though the Creative Commons community may wish disputes to be resolved in such a manner, a rightsholder can seek to rectify a breach of license in any way the law permits - and that can even mean that their first step could be to file a petition with the courts.

With that said, civil courts often (rightly) frown on matters being put to them if no attempts have been made to resolve matters outside litigation... hence Mr. Verch using Pixsy to track, trace and contact any entity that breaches his licensing terms.

Getting to the heart of the matter: whether Creative Commons language or any other terms are used, rightsholders who allow conditional use of their works are doing so within the bounds of copyright laws and, again, as you are a US-based company, you should look to what your own laws say. In this instance, it would be 17 USC 106, subsection 3, summarised as

"The owner of copyright has the exclusive rights to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending"
(emphasis added, and redundant phrasings removed)

License terms, whether CC or otherwise, constitute a lease of a work to you. A breach of lease equates a breach of copyright - it's that simple.

I also note that you're using emotive terms such as sharks, leeches, trolls, rent-seekers and so on, as if seeking monetary compensation is an inherent evil - yet your own twitter account and blog plainly advertises merchandise for sale, proudly stating "#1 Travel brand for #adventurers & #wanderlusters ☼ Shop for #Travel clothing, t-shirts, gears & accessories ♡ "

So is a capitalistic enterprise fine when the money flows in your direction, but not away from you?  ;)

... who ever created the file found it on google images

The lesson of the day? A Google image search is not a free-for-all image library.

I definitely think i have an argument here.

Then consult a lawyer who has specialist knowledge of copyright law, and give them all the facts of how the PDF came to be made etc. - they'll then let you know how much weight your argument may bear.

The main question is should i contact them and negotiate, someone from higbee called once left no name and said they will call again which they never did.

The $64 question that only you can answer. All business requires management of risk and uncertainty. Whether you negotiate (risk management) or wait to see if you're taken to court (uncertainty) is your decision alone.

Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)

Enemies? Ha!  ;D

You've only posted twice here, so I can't speak to your opinions on creators/artists who pro-actively guard against the unlicensed uses of their work, but I'll say this: copyrights, as a property right, gives everyone the ability to decide the what/when/how/where their works are used.

If I want to make use of your property, then you can rightly set whatever conditions you please prior to my using it. If I make use of your property without your consent, then I (rightly) should expect consequences for my actions.

FYI, my choice of screen name is derived from the fact that the majority of entities who have taken the liberty of using my work without paying are large companies (think: annual revenues of seven figures or more), often with budgets for using editorial/commercial images.

Copyright laws have protected me from their unscrupulous and sometimes predatory behaviours; the law can be a great leveler in situations where a much smaller fighter takes on a far larger opponent, allowing them to "punch above their weight"

I believe in the fair application of law, where justified, to aid in righting wrongs, and I think that most people on ELI would echo that sentiment, even if we differ on the details.

No one said they had no grounds, this i was done in an innocent way.

Infringement of copyrights is what is called a strict liability tort; in plainer language, that means that when you infringe, the why/how doesn't really come into play. In some ways, it's similar to getting a speeding ticket and trying to argue you know of or see the speed limit signs. If you want to argue about circumstances, then that's done to either a judge, jury or court-mandated arbitration. You can try to argue your case during pre-trial settlement negotiations, but the attorney/photographer may not believe you.

First of all to ask for $3000 is outrageous, if they were asking for $300 i would think there's something to talk about but asking for this amount like we used it knowingly while stealing someone else work is just not true.

I license photographs to corporate clients for three, four, and five-figure sums. If the photographer has a sales history of doing the same, then maybe $3,000 isn't a stretch in terms of their lost revenues. Consider: if you'd asked this specific photographer to use the specific image before you published it, you would have had the opportunity to do one of three things

1: Pay their requested fee

2. Attempt to negotiate a lower fee

3. Walk away and choose a different photographer's work at a price suitable to your budget

By simply finding, taking, and then publishing their photograph, there was an end-run where none of the above happened.

Those blood sucking lawyer treat this matter like this was some kind of armed robbery while this was an innocent mistake of someone who does not understand that taking a picture from the internet isn't really free and coming without warning to claim i owe them money.

It's almost twenty years since Napster came on the scene and disrupted the music industry, with the term "copyright infringement" entering the consciousness of the public at large. Maybe you really didn't know that taking a random picture from the internet then publishing it in a business-related capacity wasn't legal but, in my opinion, that argument holds less water with each passing year since 1999.

The picture was used only in a single PDF to portray a scenario we solve, that's all.

So it was used to illustrate your company's services - to your own staff as training materials, or to potential clients as solicitation of their business?

It matters that it's not in the website and in a pdf because it was not "stolen" to be used in a public platform where we use it to our benefit in my mind.

The "benefit" is that you didn't seek permission and/or pay for the use of the photograph and, now that fact has been discovered, you're on the receiving end of a copyright infringement claim.

I occasionally work with corporate clients and, depending on their brief, the images they want may be for internal use only, for client-facing use, or a combination. My licensing fee reflects the expected scope of use and yes, sometimes this will include electronic copies of documents in PDF format.

To claim that the photographer and their attorney have no grounds for a claim because it was a PDF and not a website usage is, frankly, ludicrous.

It takes a long time for a case to actually reach that juncture.

I'm an EU resident and have filed a few claims in courts outside my country of residence, and I have yet to be compelled to attend in person, being that all of my court cases to date wound up settling during the court-mandated mediation/arbitration phase; the court representatives have always been happy for me to video conference with them, so long as my lawyer is physically present.

With that said, I always know that mediation might fail and, because of that possibility, I ensure that I have monies set aside for attending in person during trial proceedings before I even file suit. All civil litigation has attendant risks, and you have to be prepared to absorb those risks.

I'm not sure if Youngson can stomach those risks - it certainly looks like he favours fast results over principled litigation.

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