Messages

31

Getty Images Letter Forum / Re: Fair Use Question

« on: September 20, 2014, 04:41:01 PM »

I don't think all images on web sites are "design elements". I think some are "content". But perhaps Getty Images makes the "design element" claim for all images.  But we don't know whether they do so. Presumably if they went to court, they would have to provide their definition for "design element". If it turns out to be "any and every images", a judge might view the diagnosis of "design element" to be rather meaningless as it means nothing more than "it's an image".

32

Getty Images Letter Forum / Re: Fair Use Question

« on: September 20, 2014, 11:17:06 AM »

I think "design elements" are elements that are either clearly structural or decorative as opposed to being inserted as part of the discussion or commentary.  In this case, the images are an integral part of the discussion about "clickbait". 

In contrast, in the  SLATE blog post example I linked above, SLATE includes a very large topical but decorative image at the top of every blog post. These big images at Slate are generally not discussed and merely set a "tone". That is both structural and more 'decorative'.   As such, I interpret the SLATE images as "design elements", but the "clickbait examples" as "not design elements".

What would a judge decide: One never knows. But those don't look like 'design elements' to me. And bear in mind: I wasn't willing to buy the argument that images can't be merely because they are in a blog post. So... I try to avoid the knee-jerk reaction that "If Getty Images says X it must be wrong." or "If a person who got a Getty Images letter advances an argument it must be right".  I have standards. I think my standard is correct.  And to me:those don't look like design elements. ( Note though I am not a lawyer.)

Also: 'not being design' element is not sufficient to win the fair use case. But (though I am not a lawyer) that looks like fair use to me. They aren't having any impact on Getty's ability to sell. The context is different. There is a good reason to use the amount used -- and in fact, captions were included in the screenshots. Why? Without those captions, the amount used makes no sense.  There's a good reason for "why those images": Because -- with the captions added-- those are examples of clickbait as they appear 'in the wild'.  They aren't just "the images". 

Heck, because the captions are included in the screenshot, no one else is going to 'hotlink' those from the blog to merely decorate their site-- and that goes to the market substitution argument.

And so on. Obviously, if Getty Images sues, someone is going to need to get a lawyer to defend and write up the defense. But those look like fair use to me.

33

Getty Images Letter Forum / Re: Fair Use Question

« on: September 19, 2014, 03:28:19 PM »

In my opinion, those don't look like "design elements". Also, it appears you took screenshots of the images with captions to show how messaging is used as "click bait". Of course, a court will go through the 4 factors of fair use. But I always like to think of the "I know fair use when I see it test" on top of that.   This sooooo looks like fair use to me! (That said: I'm not a lawyer!)

34

Getty Images Letter Forum / Re: CFAA Violation, TERMS of USE, Htacess Blocks

« on: September 19, 2014, 01:14:47 PM »

JerryWitt,
My thought with PhDoc: Oh. My. I wonder how he response when funding agencies turn down his grant proposals because they are too vague?

35

Getty Images Letter Forum / Re: CFAA Violation, TERMS of USE, Htacess Blocks

« on: September 18, 2014, 12:26:37 PM »

>>  let's presume 10% actually care about their rights, this brings us to 1,000,000.

That's a pretty big assumption. I would bet the number is much closer to a few thousand.

He's also assuming that of all those who 'care about their rights', specifically care about the Getty issue and not some other right, that they'll all learn about the project, that they will read, understand and agree with the specific goals of the project. (Note: the project doesn't seem to have specific goals other than "Do something to hurt Getty Images".)  Also, that they will all trust the people running the project to do something worthwhile rather than just taking the money and going to Aruba. And so on.

Any project that starts with "raise $1 Million dollars", needs to think a little harder to figure out how they are going to raise $1 millions dollars.

Mind you, if PhDoc manages to do it: more power to him.

36

UK Getty Images Letter Forum / Re: The Ending to it??

« on: September 18, 2014, 08:21:04 AM »

DavidVGoliath,
The 3 year statute of limitations issue in the US is particular to a specific individual infringement. The copyright holder must sue within 3 years of discovering that specific violation.  This is important with the Getty letters since individuals know that if a copyright holder contacts them but then doesn't sue, the statute of limitations for that specific claim discussed in the letter has lapsed. But no other potential claims have lapsed.

A claim to be recognized as one of the authors and so gain copyright protection is different. I think that would have no statute of limitations here either.

There's no statute of limitations in the UK for claims of copyright infringement claims; this is established case law that was taken all the way up to the High Court in 2006, when keyboard player Matthew Fisher won the right to be recognised as one of three authors of the song "A Whiter Shade of Pale", which was originally released in 1967. The judge also granted Fisher a 40% right to future royalties.

So, that's a case that spans almost forty years from the creation of the work to the judgement in favour of Fisher. For as long as the work is covered by copyright (life of author + 70 years for photographs), a claim can be brought at any time.

37

Getty Images Letter Forum / Re: CFAA Violation, TERMS of USE, Htacess Blocks

« on: September 17, 2014, 02:31:30 PM »

PhDoc,

Lucia, thanks for your response. Yes I forgot to mention the cease and desist, however I am aware of it.

This comes down to more than just copyright.

Of course the question of CFAA combined with copyright issues is more than just about copyright. It's about CFFA, which is not about copyright. If you are trying to figure out how to use CFAA as a way to "get" Getty Images or Picscout (or anyone)  you need to look to what courts have said about CFAA.

It comes down to an issue of rights. If you have someone stop by your house once per day to take a photograph, odds are you're going to become irritated. Even if the person is standing in the middle of the street, i.e. not your property, predatory laws work in your favor here. Odds are you can get a restraining order against the offending party.

But this has nothing to do with CFAA.  It sounds like you are worried about some sort of "trespass" issue. There may be one-- but that's not what CFAA is generally about.

The owner is in 100% legal compliance, and yet Picscout still scans her site. The owner puts up a TOS, blocks all known domains associated with Picscout, and forbids anyone who is not Google or Yahoo from crawling the site via robots.txt. AND... sends Getty/Picscout legal a CAD. Shouldn't this be enough to get the point across that they're not welcome?

Are you interested in the normative question about what 'should' be enough? Or are you asking what is enough under the CFAA? Because with respect to the latter, courts seem to say TOS violation is not enough.

This country needs a fight for usage rights. This fight is being avoided not because there's no precedent, however because it's "hard." People don't like doing anything "hard" because it upsets their thoughtless slumber. How do I know? I've taught thousands of students who don't like to do anything "hard."

Actually, the issue of whether violating TOS violations amounts CFAA violations is more complicated, and has been fought in legal cases like United States v. Drew  http://en.wikipedia.org/wiki/United_States_v._Drew which ultimately ruled that TOS violations are not enough to trigger a CFAA violation.  That court rightly sets the bar for violating CFAA high. If they did not do so, I could decree "No one named andrew may visit my blog" and then if someone named Andrew visited, that would be a CFAA violation.  So the courts have been requiring more.

It can't be the case that TOS violations are CFAA violations in cases where we think they "should be" but not in other cases where we think they "shouldn't be". The rule has to be either they are or they aren't. It's best if they are not violations.

Please believe I'm not being a smart a**. The problem is not Getty/Picscout. It's our legal system.

I don't think you are being a smart a**. I just think you aren't familiar with what the CFAA says and how courts have interpreted it. I also think you haven't thought very long about how making violations of TOS a crime rather than a tort would pan out in real life. Despite saying the problem is not Getty/Picscout, you are only thinking about how to get them and not thinking about how tweaking the law to "get" them would really screw up our legal system and screw up the internet.

38

Getty Images Letter Forum / Re: CFAA Violation, TERMS of USE, Htacess Blocks

« on: September 17, 2014, 12:54:13 PM »

Northern California District Court (Craigslist v. 3taps, Inc.) has determine the use of proxy servers to circumvent IP address ban is a violation of 18 U.S. Code § 1030 (Fraud and Related Activity in Connection With Computers, also known as Computer Fraud and Abuse Act, also known as CFAA).

Read the details of the case. Craitlist sent 3Taps a very explicit cease and desist letter and blocked them.

This being said, when picscout is banned via htaccess, and they come back later with one of those "Narcissistic Timmy Letters," is this not also a violation of CFAA?

You probably need to send them a cease and desist letter first. Then, you need to know their IPs and block those. Then when you see them try to get around the block using proxies, you have to get evidence and file a suit making a claim under the CFAA.  At which point, you will have a complicated case. Meanwhile, I don't think it will directly affect the copyright claim. It could be that they can win their copyright claim and you can win your CFAA claim.

If you have a clear and comprehensive TERMS of USE page on your site, have every page of that website labeled referring users to that TERMS of USE, have denied Getty and Picscout access to the site via robots.txt (made public), have blocked their domains via htaccess, and have blocked the entire country of Israel, what else can you do?

That won't be enough. I'm pretty sure Craiglist tried the TOS and it wasn't enough.  Under the ruling you point to you need to send Picscout a cease and desist and identify their IPs and block those IPs.  You can't just do one, you need to do them all.

In other words, if website owners are willing to do the work, what can they do to tell Getty/Picscout/TimmyBaby to go pound sand? The way I see it, this has to go to court so Getty can be delivered a bloody nose and embarrassment.

Suggestions by anyone?

I have no idea how one would collect evidence that Picscout evaded IP blocks using proxies.  But if someone else figures out how to do it and they want to work at taking this to court, they can send the cease and desist, figure out the IPs and monitor to see if Picscout starts coming around using proxies.

39

Getty Images Letter Forum / Re: Letter on image now available for embedding and unsolicited email?

« on: September 17, 2014, 12:35:59 PM »

A major problem is that they contacted me on my personal email and I didn't provide them that info. Is it legal for them to approach me this way? How can I protect myself from their harassment strategies?

It's probably legal for them to send you email. But I'm not a lawyer... so... don't know. Save whatever they send you so you'll have it should you learn it's not legal at some later point.

If they have a valid claim, it's difficult to protect yourself from their attempts to contact you to try to negotiate a settlement. It is legal to pursue a case. The main thing you can do is hire an attorney and have your attorney contact them. In that case, they have to contact your attorney, they can't contact you.  This often reduces the number of contacts.

If they have no valid claim and you are 100% sure of it, you can file a suit the way Joel Rothman did. But that option would not be in your best interest if they do have a valid claim as you would then lose and have paid all the court costs yourself. In contrast, one of the reasons they don't file small claims is that even if they win they might not be awarded attorney's fees and that makes the case financially unwise: They spend more on attorneys than they are awarded in damages.

One of the things you need to do before responding further is be clear headed and consider their claims. Above whether you know it or not, you seem to be sayings that touch on two different issues:

• Whether  your use is an infringement at all vs.
• Assuming it is an infringement, what's the proper level of damages.

These are different issues and it's best to keep these separate. Because if your use is not infringement at all, the proper level of damages is $0. (This is not to say you couldn't get sued. If you were you would have to convince a judge your use is non-infringing. )  On the other hand, if your use was infringing, you then might need to establish the proper level of damages.

For example, you say this

They also mentioned that the image is "part of the design element of a website"... but I imagine that an image used on a blog post is not a website design element.

If this was 'in a blog post', that might affect the correct price (which seems to be what you are focusing on.) But it might affect your use was infringing at all. The "design element" issue might matter to both.

First:  "blog post" isn't necessarily sufficient to prove it's not a "design element".  Look at how images are used at The Atlantic
http://www.theatlantic.com/features/archive/2014/09/how-gangs-took-over-prisons/379330/
Some bloggers have read "advice" suggesting they use sexy images to decorate their blog posts. The people giving the advise won't use that verb- but that's pretty much the advice being given.  I would categorize the use in "The Atlantic" article above to be "decorative". Notice  the post (or news article) doesn't comment on the image itself.  The top image isn't advancing the argument that gangs have taken over prisons, or show how they've done so and so on. It's sort of topical, but it's mostly  used to "sex up" or "decorate" the blog hoping to catch eyeballs or something.

I would suggest using images that way can be very dangerous. It should only be done if you are going to go to the trouble to take all your own images or license the ones you use. In the latter case: keep records.

If you used it that way and get sued by a copyright holder,  a judge might see that use as "a design element" and would do so even if you said "it's just a blog".  In that case, you would be making one of the precise uses these images are sold for. It will be very difficult to argue that your sort of use doesn't affect the marketability of photo licenses because if that sort of use is permitted without licensing, the copyright holders really can't make any money by licensing copies. Basically, everyone can just use images for any old reason. 

On the other hand, if you were discussing a topic (and actually discuss the content of that specific photo is some obvious way,) it's rather clear that image was at least arguably "content" not "design element".  If it's content, it might turn out you have a good case that your use was not infringing at all-- that it falls under fair use.  Or --depending on the sort of content-- it might not be 'fair use'.    But to judge whether yours is a case where it's 'content' and falls under 'fair use', someone would need more details about your use.  A four factor tests exist, and you'll need to apply it to see whether your use is there. Also, in the case of fair use: if it's at all close, you might want to discuss that with an attorney to see how strong your case is.   

If your use is not "fair use", the "design element"  may matter to pricing. I'm not sufficiently familiar with Getty Images price structure to know how much they would charge someone like "The Atlantic" above for using a photo in the way they use it. Possibly a lot-- possibly a little. I really don't know.  But just saying "blog post" doesn't itself tell us much because different types of blogs exist. The New York Times has blogs. Grannies have hobby blogs. Judges are likely to view things differently.

40

Legal Controversies Forum / Re: "Dating Naked" contestant sues for not blurring her vagina and anus

« on: September 17, 2014, 10:00:20 AM »

I thought it applied to anyone who used "Vajazzle".

But stoppit!! We are getting away from my substantive points here!!!!!  DAMMIT!  ( Not that I think we are going to get back on track.  But substantive points are
a: With respect to tort law, she may have a valid complaint. If there was breech of contract and the show revealed more than contractually permitted, the courts should do something about that.  Some financial remedy might be justifiable. If she was sloppy and didn't get it in writing, people going on these shows need to become more contract savvy.
b: I'm a bit skeptical about claims of huge amounts of huge amounts emotional distress.  I imagine there is some.
c: Budding relationship guy might have dumped her anyway.  I doubt his dumping her is due to error on the part of the shows producers.
)

Equally substantive point: What motivated Matt to post this in the first place?  Does he want to discuss the possible legal issues around the possible breech of contract issue that involves revealing more of this woman's naked body than she agreed to? Or not?

41

Getty Images Letter Forum / Re: Letter on image now available for embedding and unsolicited email?

« on: September 17, 2014, 08:21:19 AM »

I think he's saying the image is available for embedding but he displayed from a copy on his own server. But he thinks if the image is available as an embedded image, it should be cheap or near valueless. I think that's not necessarily the case. In the meat world, people can give things away in a promotion, but those same things still retain a their original value.  So I don't know why Getty's making an image available as an "embed" would necessarily reduce the sale value of the image when used without the 'embed'.  It might be an empirical question-- possibly no one would pay a 'rights managed' price if that image was being used as an 'embed' somewhere-- but maybe some people who actually buy images would. Someone would have to look at the market data.

If I"m correct about what he means about 'embed', he's best advised to follow advise people use for any old Getty images image.  Figure out the actual sale prices, see if it's registered, look at how and where the user posted it and so on.

42

Legal Controversies Forum / Re: "Dating Naked" contestant sues for not blurring her vagina and anus

« on: September 16, 2014, 07:09:24 PM »

Would you have preferred vajayjay?

43

Getty Images Letter Forum / Re: Fair Use Question

« on: September 16, 2014, 12:20:55 PM »

If you have resolves not to agree to a gag order, you could publicize the offers now. They can't unilatirally gag you.  I don't know any theory under which they can harm you for discussing this.  The only thing it does is potentially affect what they will agree to going forward and maybe your publicizing would make a difference.  You can never know what "would have happened if". You can only eventually know what does happen.  I tend to think it's better to discuss their offers in public.

44

Getty Images Letter Forum / Re: Schneider Rothman IP Law v. Getty Images & Zemanta Lawsuit

« on: September 16, 2014, 12:17:37 PM »

I'm still trying to figure out why they didn't hire Attorney Timothy B. McCormack for this.

</snark>

They need a Florida firm.

45

Legal Controversies Forum / Re: "Dating Naked" contestant sues for not blurring her vagina and anus

« on: September 16, 2014, 12:14:10 PM »

I have some sympathy for her. But it's rather limited.  I do hope she got a guarantee in writing and that she is awarded some damages. These shows do need to honor their contractual obligations.  Also: potentially, shows of this type gain viewership if there are no adverse consequences to mistakes, they have little incentive to be more careful.

She added that the show cost her a “budding relationship” with a man she had been seeing for a month.

“He never called me again after the show aired. I would have hoped we could have had a long-term relationship. He was employed, Jewish, in his 30s and that’s pretty much ideal,” Nizewitz said.

The show may have cost her that. But it may have cost her that without the unauthorized showing of vag. Lots of guys would not want ot date a woman who appears on this sort of show. Other guys wouldn't mind, or would think it was a plug. But this guy may be in the first category.