Regular ELI contributor SoylentGreen wrote his “defense strategy summary” on January 11, 2012 as his response to another discussion thread. It was so good, I feel the need to spotlight it once again. I did not want to move or extract that post from its original location. The original post is here in its proper context.
Despite my best efforts, I could not find that post and it took fellow ELI Defense Team member, BuddhaPi, to find it for me. Thank you, BuddhaPi!
I do not want to lose that particular post and have it get buried again. I have copied and pasted SG’s original post in its entirety here in an all-new thread. Keep in mind this is SoylentGreen’s view and perspective. While there is no single strategy that will fit everyone’s situation, it is well worth reading and considering.
Thank you, SG! I hope you don’t mind us revisiting your well-written post as a subject of discussion.
Lucia had inquired about whether or not I’m an attorney. I’m not an attorney.
I had thought at length about how to answer her query as to what my opinion was regarding “where or not it’s worth a shot”, or “what the probability is of winning a dismissal”. Each individual must decide for himself/herself whether or not it’s “worth a shot”. But, we can do research and make a reasonable determination. Now, if something was to go to court, it’s often difficult to predict “probability”, as a human “the judge” will make a decision based on aguments/evidence. The following is my thought process. It’s a bit long, but perhaps, there’s some food for thought in there.
I’m speaking in terms of US laws/ existing precedents.
Historically speaking, most of the people who paid Getty, Riddick and Righthaven didn’t have to.
Corbis had a good case but gained mixed results, and rumor has it that Masterfile is much better organized than Getty when it comes to contracts/registrations. I’m a bit unclear on the Masterfile thing. They may only be filing lawsuits wherein the paperwork is in place; this may give the false impression that everything that they have is registered/under proper contracts. Most of their wins are on “default” wherein the defendant didn’t show for court.
So, the odds are good that there’s some problem with most infringement claims that should be explored and could possibly be exploited.
Your priority in fighting such claims might be as follows from most desirable to least:
1) Make an informal response, and show evidence that causes them to simply go away
2) Make an informal response, and show evidence that causes them to accept a very low settlement. One so low that the time you saved is more valuable than that of the settlement.
3) In the event of a lawsuit, file a formal defense that causes the plaintiff to give up and withdraw
4) In the event of a strong defense, fight it in court, win, and collect legal fees and other damages
5) In a case wherein you cannot reasonably prevail, pay a the lowest settlement possible in lieu of a larger court loss and legal fees.
Fighting these claims is a process. Collect evidence and find out if there’s a fatal problem with the claim such as:
1) The content was never registered
2) Faulty registration (dates missing, signatures missing, incorrect names)
3) The content was registered by the “original artist”, but there is no “exclusive agreement” in place between the artist and company (agent). Or this agreement is faulty.
4) The registration was made in “bulk”, that is, many items registered together as a collection
5) Registration not made within lawful time limits
The above examples will kill a case in the US. That doesn’t stop ignorant people from filing lawsuits in some cases. File for “summary dismissal” and site precedents. If it does go to court, at least you’ll win and collect your legal fees if applicable. Except in “scorched earth” near-criminal situations such as Righthaven. Note that court precedents currently exist for the above list.
Other fatal problems. These are situations involving mistakes or even fraud which make even the possibility of a claim invalid:
1) Outright fraudulent claims (the image didn’t even appear on your site, or the image only similar and not the same).
2) Companies or individuals impersonating artists/ agencies/ companies/ lawyers and sending forged correspondence/fraudulent claims.
3) Misrepresentations of law, for example situations wherein Getty makes accusations of infringement over linked images not actually residing on the server/domain of the accused person/company.
Things that might kill or at least give leverage in negotiations or reduce awards in court
1) The images are widely available as “free” (the more the better for the defendant)
2) The images are widely available as low-cost “clip-art” (non rights-managed)
3) The infringement had low exposure (hit count), low resolution, small image size, was on tertiary web pages.
4) The same images sold on multiple sites by unrelated companies
5) Only some rights assigned (but not others) in an “exclusive contract” between an artist and agent.
6) It was “fair use” under the law for registered educational/non-profit organizations.
7) The web site was not commercial, or didn’t make much money.
8 The defendant was unemployed or unemployable, and the web site didn’t make much revenue
Things that people do to avoid payment/court in a worst-case scenario:
1) In the case of a corporation, ensure that the company has little assets left by the time collection efforts are made.
2) Personal bankruptcy
3) “Disappear” in order to avoid service of court papers (somebody did that in a Corbis case).
Where to begin? Here’s what you do:
1) Assess your risk tolerance.
2) Assess your budget
3) Go through the lists above and highlight any points that might apply to your situation
4) Collect all evidence that you can to support what you’ve highlighted
5) Determine if the evidence strongly supports your defence(s)
6) You must now decide if your defence and corresponding evidence support your desired outcome from the very first list.
If your accuser will not provide evidence of their claim, do realize that they’re holding out because they do not have enough evidence to support their claim. Be patient. The accuser must present their evidence before the commencement of any court case. So any evidence will have to be presented eventually. Next, reassess your strategy as you receive any new information.
If new evidence becomes known that isn’t favorable to your defence, keep in mind that you may make a settlement at any time if that’s in your best interest.