Lucia, thanks. Yes, it was hosted on our server. Who actually hot links anymore?
Prudent people who know copying can be a copyright violation and hotlinking isn't? Google on it's image search pages? People using Zemanta plugins People inserting ads from services like Adsense? People who run Amazon ads-- using the tool Amazon provides them? Most of Pinterest 'repinners'. (The original pinner doesn't hotlink, but the rest do.) People who run forums and want to let those discussing insert images?
You seem to be asking a rhetorical question that suggests people don't hotlink or shouldn't hotlink. But lots of hotlinking still goes on, it's likely to always go on and it's often wise to hotlink.
For what it's worth,
I hotlink. It's often wiser. I don't know why someone wouldn't hotlink. There is absolutely nothing wrong with hotlinking; if the web administrator wants to prevent hotlinking, they have .htaccess at their fingertips and they almost certainly will use it.
I don't have a clue where it came from, so no evidence as to the source.
The fact that you don't have a clue where it came from, and this was posted in what appears to be business context for you means the judge might not find you unable to
prove your infringement is 'innocent' in the sense the court sees that. The images is registered. If he sues, the statutory minimum is something like $750. In contrast if you
did have a clue and
had records that this thing was represented as coming from a site that claimed it had a CC license, but the CC license was merely invalid, you might be looking at $200-- as you would have something evidence to prove your infringement was innocent. (There are other things you might be able to bring forward as proof -- if you had them-- but "I have no clue how it got there", isn't evidence of unwilful infringement.")
Yes, we're a business. We're a blog with several dozen authors who come and go.
If you have something like a multi-author set up where others not under your control might insert unlicensed copyrighted material, you should register DMCA agent. It's too late for your current predicament, but it would be wise to consider for the future.
The DMCA registration won't help you if you post the material yourself and it might not help you if a person who is working for hire does it-- but it would help if you are doing something more similar to offering a blogging platform to others who are not under your control.
The image was (allegedly) used in a blog post about 6 years ago. Hasn't seen the light of day since, until their robot apparently found it.
I"m not sure what you mean by "Hasn't seen the light of day". It sounds like the images remained on your server until you received the letter, right? How did the robot find it? Was it linked from a post-- which was also crawlable?
That the page or post had few visits would likely be a point in your favor with respect to damages. But if it once had lots of visits (even 6 years ago), maybe not. In the US, copyright is an economic issue-- so the question the judge will be looking at isn't going to be limited to how much damage happened in the last year, but how much happened overall.
If you are wondering what might happen if you were sued, you need to think about how the person suing you would present it and what the law
is. With respect to the 6 years ago-- the statute of limitations doesn't start when you posted the image. It starts when the copyright owner
discovered you had posted it or 'should have' discovered it. He may have discovered this less than 2 days before sending you the letter. A judge isn't like to think the copyright owners "should have" discovered this the moment you posted-- so your saying it's been up for 6 years isn't going to help
you in court. If anything, depending on how this guy licenses and what fees he gets, it will
elevate the monetary damages the copyright owner might claim.
Despite the fact that we're really strict about picking only public domain images, occasional mistakes happen. With over 15,000 articles written in 10 years, it's hard not to!
Sure. And possibly in court, the judge might think your position of 'this is a mistake' is credible or not. But the copyright owner isn't required to accept your word that you are careful and strict. (BTW: 15,000 articles in 10 years with authors not under your control: this is why you need to register a DMCA agent.)
Also: the judge might think the fact that you don't have a DMCA agent, yet publish 15,000 articles in 10 years means your business model is to 'risk it'-- and he'll take that as a justification that when he sees you did violate, well... ok. You pay this time. This is especially so if you are making money with things like ads and so on, and if he sees your motive for keeping 6 year old posts on the web to increase your web presence and generate advertising revenue from ads. I don't know if that's what you do-- but superficially it sounds like that.
However, in 10 years we've only had a complaint one other time. Someone complained (no lawyers involved), I apologized and took it down. That's how civilized people settle these things!
I agree that is civilized. But the fact that another copyright holder didn't sue may not help you in court. (The low rate of complaints will likely help. The judge would at least see that you don't seem to be running a business whose model is to ignore copyright. )
But, returning to DMCA-- if another guy complained, that's yet another reason why you should have registered a DMCA agent back when
that guy complained. If you have a business with 15,000 articles written by others-- and possibly 1,500 being a year being added, I'm a little confused why you didn't or don't register one. I don't have a DMCA agent registered at my hobby blog because (a) it's a hobby blog and (b) I write most the articles, and I read every single one written by one of my friends-- and I absolutely positively
know the images they insert are either original by them, in the public domain (published by government agencies like NOAA, NASA etc) or
classic fair use. In comments, commenters can hotlink but they aren't allowed to upload. (So... see, some people hotlink. To permit stray visitors in comments to upload is nuts. Just freakin' nuts-- and not just because of copyright. Also because of some of the worst software vulnerabilities are bugs in file uploading plugins for blogs, forum and etc.).
Letting people you don't monitor closely upload images-- and not keeping records? That's asking for trouble on many fronts. You are experiencing one.
I get the impression you are upset that I'm saying this guy might sue. Well... this guy
might sue. He's hired an attorney which suggests his mental frame is to be willing to sue. Will he? We don't know. Will he win something if he does: Sounds like almost certainly
yes, he will win something. The reason he would win something if he sued is it looks very likely you
did violate his copyright, he has registered the thing, he sent you proof of claim and so on. Other than the superficial part of making a demand, this guy is
not acting like Getty Images. In fact: he's done many of the things that people around here fault Getty for not doing: showed proof of claim etc.
The question is
how much would he win. Maybe less than he's asking in settlement-- maybe more. But he'll win something. What's worse for you is if you behave aggressively enough include too many allusions to "extortion" when responding to someone who has presented proof of claim, offer
no settlement at all and so on, a judge might be very include to make you pay his attorney's fees. Or not. We don't know.
I don't want to seem unsympathetic-- in fact, I am sympathetic. But if you are weighing possibilities when negotiating, you need to think about your situation realistically.
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