Retired Forums > Riddick/Imageline Letter Forum

My Position on the Riddick/Imageline Issue (Oscar Michelen)

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Oscar Michelen:
Let me briefly respond to some of George's comments:

(1) How can you honestly look anyone in the face and say that your advice of "DO NOT SETTLE" and "DESTROY ALL OLD ARCHIVED FILES" is NOT legal advice?

I told people to hold off on settling until I had a chance to review the situation and your claim. My post, above, shows what I am telling people their options are "DO NOT SETTLE" is not in the post. Neither is it destruction of evidence for people to remove allegedly infringing images from the Wayback Machine. It is an attempt to make sure no further infringement occurs. I would think you would support that.  

(2)You rushed to judgment and practically everything you said publicly about me and Imageline was flat out wrong. You owe a whole slew of people a huge “I’m sorry”. Perhaps you and Mathew should consider refunding any money they have given to you to try and at least be fair.
 
First of all, I have not received any money from anyone on this issue and I don't believe Matthew has either.  Our main objection to your situation was the tenor and tone of your emails.  Just read Matt's posts and you will see that this is the main gripe that started his interest in the issue. The tenor and tone of this latest post of yours hardly dispels the notion that you relish personally attacking folks even when you are discussing legal issues.  You cannot stick to the topic and must engage in these nasty  personal swipes. My post was an objective analysis of the legal position I was discussing and I stand by it.

(3) All you see on some of the Yahoo and other embroidery chat groups that have now picked up this ball is 'Oscar said this' and 'Oscar said that'. The terms Oscar, RICO, Chan, FBI, extortion, conspiracy, “innocent” infringer, piracy, archive.org, and jail time seem to go hand in glove in the embroidery world these days  

I cannot help if people are quoting and misquoting what I say on this website. But don't you have to wonder what it is about your conduct and language that raise people's ire up to this level. Even Getty, which in my opinion is on less firm legal footing than Imageline, doesn't produce the stream of angry diatribe that this issue does.

(4)   I read this morning that if an embroiderer simply returns a counterclaim “excuse” letter to their ISP, they can re-post their infringing embroidery design files without any further risk. What? It was attributed to some “united” legal advice the embroidery group was now getting.    

That is not even remotely close to anything Matt or I said on the website and I hope that people are smart enough to look at the original post and see what my position was.  Anyone re-posting a design after there has been a claim made against it risks a high damage award. That another party may have done the infringement for you is neither a defense to liability nor  a license to keep using the allegedly infringed image.

(5) Who ever told these people their distributors and the web site companies that host, display, sell, and download their infringing design files are protected by the DMCA “safe harbor” provisions. I have never heard such nonsense in my life.

 I agree and have often discussed how the DMCA does not apply in these types of cases on posts related to the Getty issue.

(6) I wonder where the embroiderers in the southwest and midwest got the notion that if they could just figure out how to make more than $200.00 on a design they infringe that they could do no worse than break even if they were sued. What? Yes, and according to one post, the more you steal the better. I wonder who is giving these people that notion?

That is not even remotely close to anything Matt or I said on the website and I hope that people are smart enough to look at the original post and see what my position was.  Courts are "allowed" though not required to reduce statutory damages to $200 but only in cases of innocent infringement. Also, it is $200 per infringement, so the more infringements, the more damages you would pay, even at a reduced rate. I certainly did not give people that notion and am glad that you are letting me know of some of these misconceptions that are out there. If you want to send me the links, perhaps I will consider responding to the posts to clarify that we are not saying these things.

(7)  I have told you already that 95% of our anti-piracy efforts (and discoveries) involve these large publishing and embroidery design companies (not small embroiderers), but I think you feel more like some kind of hero by completely ignoring that reality and making yourself out to be “the champion of the little people”.

I am only concerned with the 5% (as you claim).  They need to be treated differently George and much of the nasty email I have seen coming from you is sent to these Mom and Pop end-users.  I would not support and would not offer any discounted legal assistance to distributors, if they are repeatedly re-selling someone else's intellectual property. Certainly they would not be found to be "innocent infringers" so my position would not be applicable to them.  

(8) I also found out this morning that some of these people are now copying a picture of me that your “professional” cohort, Mathew Chan, has allowed to be posted on your web site, and are using it as a dart board. What does that have to do with your stated mission, Oscar? You are turning your web site into a circus.

What am I to do about how people use your picture George? We did not post that image, it was first posted on another unrelated site and then someone put it up on our site. How is a poster putting a picture of you on our site turning it into a circus?  Are we editing it in any way?  Are we allowing folks to download a dartboard with your face on it?  You are the one who told me they were doing so.  No one on our site ever suggested it or even advised us that someone did that. This is an example of how you feel obligated to make negative swipes at  people and not just stick to the issues.

(9) Are you proud of yourself, Oscar? Is this what you worked so hard to achieve in your career. Would you teach any of your students to do their important legal work in this manner? It may take several decades to build up a good reputation in your field, but I can assure you in only takes a couple of months, or perhaps even weeks, to completely destroy one.

Not that I have to answer to you, but Yes I am very proud of the work we have done and continue to do on a daily basis through our site.  We have provided a forum for folks to try and better understand the use of digital imagery in this new millennium.  There are many misconceptions and many sophisticated people are taking advantage of little businessess with no experience in this field.  I would note that your post did very little to attack my position it just changed some of the issues as I discussed. My law school students know all about this issue and all of the other cases I get involved in. They are very appreciative that their professor is not just someone in the ivory tower of academia but a practicing litigator whose real life experiences add depth to our discussions.  But substitute your name in your question and ask it of yourself.

(10) You made the false assumption that Imageline did not register the bulk if its proprietary illustrations and designs with the U.S. Copyright Office.

 I believe I made the exact opposite assumption.  The discretionary $200 reduction of damages only applies to statutory damages and statutory damages only apply to images registered at the time of the infringement. So clearly, I was dealing with Imageline's claims from the belief that the images were registered. Now of course you know that if you registerd them as collections and not individually, then if someone was to use 1 or 111 of the images simultaneously from one registered collection, that would amount to only one infringement.

(11) I have NEVER seen or read about a judge awarding the lower end of the statutory scale in a "distribution" case like the ones we pursue. And Oscar cannot name you any either. What he has told you is misleading.

I cannot name you one but I was not talking about distributors, but only end users as I said in my number (7).  And you cannot show me a case where an end user innocently used one item and the court did not reduce the damages to $200 or so.  Take a look at the cases filed by the RIAA over downloading of songs for proof of my position. CIte a case to me that supports your damages suggestions.

(12) There is a relatively new section of our copyright laws in this country which originated from the Digital Millennium Copyright Act (if you call October 1998 "relatively new", that is). In Section 1202 of the DMCA there is language that pertains to exactly what most embroidery designers and digitizers do to Imageline's proprietary digital vector files without any authorization from Imageline, whatsoever.

Of course I am familiar with the DMCA and its provisions, but we never discussed it or were asked to discuss it.  Obviously, if companies are removing copyright notices or watermarks found on digital imagery, then they face the full brunt of the law and deservedly so. How would they ever be able to claim "innocent infringement" if they're taking off watermarks? One of our biggest gripes against Getty is that they did not attach watermarks or copyright notices to any of their imagery.  I even point out in many posts that the lack of a watermark or copyright notice is not a defense to infringement, but it helps to establish your innocent intent in using the image

(13) You apparently believe that the best way to achieve that objective is to look for legal loopholes (i.e. registrations issues) and to not hold re-sellers accountable for their unlawful actions. And then lobby to try and change our existing laws. Am I correct in this assumption?

Of course not. I have never supported or represented anyone through this website that was accused of re-selling or re-distributing digital imagery. Everyone who has hired us through this site was either an end-user or a web developer who developed a site for an end user who unknowingly used an image. I do not consider it a legal loophole to highlight parts of the Copyright Law that are favorable to people in certain situations. While I believe everyone deserves legal representation, I would not offer a discounted (nearly pro bono) rate to someone who was re-selling or re-distributing someone else's intellectual property.  If that is who you are going after, then you will have no beef with me other than perhaps the tone of your emails. I am indeed trying to change existing US law to mirror UK law in that the UK law specifically says that in cases of innocent infringement, there should be no damages awarded as a matter of law if the party ceases and desists after receiving notice from the copyright holder.

Conclusion

I agree with Matthew that I do not really want to extend this dialog into a continuing forum of your issues. I have stated my position, I have clarified much of what you have asked about (if I left out a point or two, its not that I agree with your statement or that I ignored it, I just simply have to move on here.)  I ask that folks interested in this issue, read all the posts here and not misquote any of the parties.

GRiddick:
Oscar,

I am VERY pleased by what I read on this post tonight. You truly handled these questions, and my aggresive tone, professionally. I appreciate that. I do not believe we are anywhere near as far off on our philosophies as I originally concluded. I love the Internet, and e-mail, but on ocasion it has led to an extended mis-communications from my experience.

Thank you for taking the time to post your reponses. It is very late tonight, but I will show you tomorrow where I think we mis-communicated and I'll bet we both we will feel a little better about what we are trying to achieve.

George

GRiddick:
Hello Oscar,

We are not that far apart in our views. We both fight hard for the lowest level of “victim” in our system, people who often do not know how to best speak for themselves. In our case, it is the individual digital graphic artists, designers, cartoonists, digitizers, programmers, and animators. In your case, it is the unsuspecting “end users” of copyright-protected visual content.

I tend to agree with you where truly innocent actual “end users” are caught using content they had no idea was protected by registered copyrights for their own personal use. We have consciously chosen not to go after such end users over the years. 100% of our compliance and enforcement efforts are against those people who either publish our content, pretending it is theirs, or re-distribute the pirated digital content to others, sometimes in the dozens, but more typically in the hundreds, and even thousands, over the Internet.

It is also very common among these embroidery companies to offer digital designs that they did not have to pay for (such as those “borrowed” from Imageline) as incentives for people to subscribe to their monthly services, in which case tens of thousands of end users could end up with the unlicensed Imageline designs in a matter of months, if not weeks … or even days. What does that do the perceived market value of our designs?

So, do you now see what our dilemma is? How do we stop the cascading damages caused by the people who have contacted you because we contacted them? The most valuable thing we offer them in our current settlement agreements is a complete release of them, all of their business associates, all of the advertisers and sponsors, as well as the hundreds, or thousands, of their end user customers who are now using our copyright-registered digital designs against the copyright laws of this country. And have potential future claims against the original infringer, as well.

In short, our settlements give these dealers, distributors, and counterfeiters what even a court order typically does not. Peace of mind that they will not be brought into additional copyright infringement related cases down the road, and the satisfaction of knowing that they can put this chapter behind them and begin anew. Most people we settle with become our friends. In some cases, we even end up doing some business together. In spite of what you hear from people who are still trying to dodge us, and deny their wrongful acts, we try hard to be fair.

The truth is, Oscar, that when you consider the extent of the unlawful distribution we typically have to deal with, our settlement offers are extraordinarily reasonable. We will likely never get much of this “toothpaste” back in the tube. The damages have been done and will show up where we least expect them to for years and years to come.

As you will soon find out if you have not done so already, the vast majority of these embroidery infringers, re-publishers, and distributors, will tell you that some software company or web site operator gave them authorization to distribute the digital designs they create from our proprietary property. We have found in 98% of the cases we have reviewed that it is actually the original infringer who has misinterpreted the license agreement they agreed to follow. Why does all of that kind of licensing rights analysis appear to be a little self-serving to me? Of course, we pursue anyone would actually try to grant such rights to third parties, as well, as we have NEVER given anyone that authorization in our 25+ years in existence.

Think about this, Oscar. What if we decided to listen to you and Mathew and took ALL settlement offers off the table and turned all of these cases over to the attorneys who specialize in this sort of thing. Can you honestly tell anyone they would likely get a better deal and not spend significantly more money in the legal process, even with you offering a reduction in your hourly fees? Remember, these are distributors, not end users. You tell me what you suspect the average judge or jury would do to someone who distributes other people’s property into their markets for profit, and in volume.

What is the purpose of forestalling all settlement talks? I simply do not get it. If the theory is we will not follow through, I have told you this consistently. Yes, we will. We changed our policy several years ago and we now follow through on every single case that involves a dealer, re-publisher, or distributor, just as you have said you would do, as well, if you were in our place. Mathew would too if his e-books were what was being stolen and re-distributed.

The letters that Mathew posted online were ALL sent to these re-publishers, dealers, and distributors. I admit I became quite agitated that they did not have the courtesy to even respond to our serious claims. Our sense of urgency was necessitated by the fact that ongoing infringing activity among their end user customers was continuing in the marketplace, even after they had removed our designs from their own web sites. You should understand that kind of frustration. None of those we contacted are actually end users, but I get the feeling that they may have positioned themselves to you and Mathew as such. This includes the young lady in New York we talked about you possibly representing, as well. I’d be happy to provide some more details to you here if you think that would help.

Further, the anonymous and even identified embroidery industry participants in your interactive discussion forums are ALL Internet-based distributors, dealers, resellers, and/or re-publishers, as well, from we can tell.

Before I forget it, I would like to compliment you on pointing out to me the anti-piracy objective of your instructions to remove web pages from the Archives.org historically mirrored web sites. I honestly had not thought about that rationale. I think you would agree that the correct procedure for someone who has been officially noticed that these infringement issues could easily end up in the courts is to remove all old web pages that include infringing designs from all known sources, and then retain electronic and/or print copies of these web pages in their business files as potential evidence that could be needed during discovery. Don’t you agree?

And, finally, please remember this. Unlike truly innocent and unaware end users, these people who are re-distributing and sub-licensing other people’s work as their primary business model do not respond to anything other than very aggressive communications. You know that. I could show you hundreds of techniques we have used over the past 15 years or so, and the aggressive ones are the ONLY ones that get anyone’s attention these days, short of filing a federal lawsuit without giving any notice at all.

What exactly is it that you and Mathew are trying to get me and Imageline to do, Oscar?  Drop all settlement offers? File hundreds of lawsuits? Ignore the cascading infringement activity that still place in the embroidery marketplace due to original infringing activity of those we do pursue? Ignore infringing activity? Stop producing new copyrighted work altogether? Contribute all of our work to the “public domain”? Why have you decided to aggressively attack me, personally, and treat our small graphic arts content development company that has stood up for the little guy for all these years as the “bad guy” here?

Again, I was very pleased to learn last night that you feel the exact same way about people who use other people’s property to distribute wares to their customers, and pretend that it is their own, or that they have somehow secured such distribution rights.

Please let me know if I misunderstood your position in any way. I don’t think that I have.

Have a pleasant day.

George

George P. Riddick, III
Chairman/CEO
Imageline, Inc.

bullyriddick:
sorry for interrupting this discussion but I have a feeling George that if you sent a letter that you just posted instead of horrible threats in your first email to your victims, you just might have a much bigger success rate in reaching settlement with them. You would also skip being ridiculed on several web sites and skip having your picture as a dart board in embroidery companies around the US. What I see here is Dr. Jekyll and Mr. Hyde type of personality, fair and polite in public and terrible and bully in private emails.

You are wrong on one thing George - aggressive techniques do not work. The result of your aggressive techniques is seen all over Internet and all it got you is resistance, condemnation and ridicule. Now, that people are organizing and creating rings there is no way back. Either will you change your language and try in nicely worded manner explain your situation (like you just did above) or you will do it hard way like you did so far. It's your choice.

And do not blame this site. This site is the last resort for many people who did not know how to deal with your obnoxious threats.

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