I wrote an extensive post dissecting the outrageous extortion letter by Attorney Timothy B. McCormack representing Getty Images. It is misleading and factually untrue in so many areas. The original post is here.
I have pasted the text of that post here.
I already have a problem with the general issue of preying upon people’s legal ignorance to begin with. However, this letter compounds and multiplies the issues on so many levels.
The threat to file a lawsuit persists (even though Getty has never filed suit on cases of very few images) and the extortionistic dollar amounts continue. That is nothing new.
On Page 1
What is interesting is that there is subtle, mind-play tactic at play with the heading that I don’t recall seeing with anyone else’s extortion letter. I draw attention to the heading: Getty Images vs. xxxx, Case No. XXXX, Reference No. and Demand Amount.
There is not anything inherently unethical about it but it is a mind-play because it very much appears in a format similar to what you would find in an actual lawsuit filing. Very slick and sly.
On Page 2.
In comment line #107 “Why Your Company’s actions are illegal”. Excuse me. I don’t recall a copyright infringement issue to be anything more than a civil case, not a criminal case, in these small-scale matters. It is a claim for damages, not a freaking crime. The word “illegal” is both totally accusatory and inaccurate. McCormack KNOWS this is not a criminal matter. If I were on the receiving end of this letter, it would one ground I would use to file a written complaint against him and his law firm to the State Bar. For me, taking advantage of people’s legal ignorance is one thing but I take it as a materially false and totally misleading characterization intended to make the recipient feel like a real crime has been committed.
The heading “Your Company Has Committed Copyright Infringement” is very presumptuous. In their eyes, you are guilty until proven innocent.
In another paragraph, McCormack states “to establish a claim of copyright infringement, Getty Images only needs to show that you used, copied…. without authorization. Getty Images does not need to prove that you acted knowingly or intentionally.”
Really? I have a “claim” against McCormack is engaged in unethical legal behavior. Is that enough to disbar him? Probably not. But it would be interesting to see how the Washington State Board might view the content of this letter. Anyone can have a claim against anyone but the question is if it is valid.
Maybe McCormack needs to read the ruling of “Masterfile vs. Country Cycling” and “Getty Images vs. Advernet”. Anyone can have a claim to anything. However, courts have this nasty habit of wanting lawyers to actually prove their case instead of making outrageous accusations.
How about asking for a copyright registration? Proof of infringement duration? Proof of willful infringement? Proof of market value and sales history of the images allegedly being infringed upon? Proof that Getty even has the right to sue? (Righthaven, anyone?)
Sorry, proof of infringement is NOT enough to win anything meaningful as he might have you believe. If it was, he would follow in Righthaven’s footsteps and we know how that story ends.
Middle part of Page 2
Another factually untrue statement is “… your company, its officers, and other individuals involved in the infringement are liable…” That is a tremendously HUGE sweeping statement. McCormack doesn’t say “may be liable”. He is outright making a false statement that EVERYONE involved is liable.
In a sole proprietorship, it would be the proprietor that would be responsible at most. In a partnership, it would be the partners. In a corporation or LLC, it would be the corporate entity that would be liable, not the officers.
There would have to be extraordinary circumstances of fraud or other egregious behavior in order to pierce the “corporate veil” to hold the officers liable. Any lawyer worth a damn understands the basics of corporate entities. For him to make such a sweeping statement is factually untrue.
Lower Page 2
All this talk about “joint liability” is simply nonsense in most of these extortion letter cases because the parties are so small. To quote McCormack, “You can be sued for the full amount”. I would add to the end of that statement “but you might win jack. Suing is a far cry from actually winning a decent amount and collecting on it.”
And the bullet item, “corporation’s president jointly liable for copyright infringement” and his example of publishing CD-ROM disks containing copyrighted photographs. That is nice except that extortion letter recipients aren’t mass producing anything and it isn’t generating a multi-million dollar operation. Most letter recipients might have either mistakenly took and used an image from Google on their small websites. Or they had a web designer that made a mistake with using copyrighted images. Or they unknowingly bought a template that had infringed images. These are considered minimal damages, if any.
This statement about “owner of website jointly liable…by 3rd parties” is pure gibberish. That is what the DMCA was created for to protect website owners and hosts from the potential wrongful actions of its users and participants. If the protections were not in place, very few people would be willing to be hosting providers, bloggers, or discussion forum owners.
On Page 3
Regarding the statutory damages of $150K per image plus legal fees? First, he has to show willful infringement to qualify for that vs. innocent infringement (a measly $200/infringement). Second, he needs to have a solid copyright registration of the image in hand. McCormack should know that Getty Images is notoriously sloppy when it comes to copyright registrations. You only get actual damages, not statutory damages when you don’t have your copyright registration paperwork in order. Does he not remember that Getty Images totally lost their asses in the Getty Images vs. Advernet case even when the defendant didn’t show up and there was no opposing attorney? Oh, did I mention there were 35 images in that case? And that Getty wasn’t even asking for statutory damages, only actually damages? Getty Images got zippo there.
In the Getty Images vs. Advernet ruling, regarding Getty’s swaggering claims and accusations of infringment:
In light of the foregoing analysis of the plaintiff’s claim that the images at issue are licensed exclusively to it, the Court finds that material issues of fact exist with respect to the plaintiff’s copyright ownership interest in twenty-seven of the images at issue, as discussed above.
Moreover, with respect to the remaining eight images at issue, no specific time of infringement was asserted or established by the plaintiff. Additionally, whether the plaintiff, who is alleged to be “one of the world’s leading content providers,” licensing “imagery via the Internet” and serving “an average of 3.2 million thumbnails, 6.5 million visits and 3.5 million unique users in addition to an average of 167 million page views each month,” has an exclusive right(s) in any particular image has the potential to be an issue of substantial public importance, given the size and scope of the plaintiff’s alleged image collections.
the plaintiff has failed to establish its copyright infringement claim by failing to demonstrate that: (1) it has a valid copyright in some of the images, as discussed above; and (2) the defendant is liable to it in connection with the images for which the plaintiff did establish it possesses a valid copyright.
Wojtczak failed to explain the basis for his determination of the time periods, for all other images at issue, indicated in Exhibit 6’s category “Dates of Use for Calculation.” Since: (a) the plaintiff failed to allege the specific time of infringement for each of the thirty-five images at issue in this action; (b) no evidence was presented to establish the time period of infringement for each of the thirty-five images; and (c) the record evidence does not support the purported “Dates of Use for Calculation,” the Court finds that the plaintiff failed to allege, in its complaint, and to establish, at the hearing, the time period of infringement for each of the thirty five images.
In Masterfile vs. Country Cycling’s report recommendation in determining the final order, on page 4 regarding statutory damages,
“the court has broad discretion…in awarding statutory damages”. “In determining the appropriate award, the Court may consider such factors as “the expenses saved and profits reaped by the defendants, the revenues lost by the plaintiffs, the value of the copyright, the deterrent effect of the award on other potential infringers, and factors relating to individual culpability.” Ultimately, the “statutory damages should bear some relation to actual damages suffered.”
Imagine that. A judge that thinks that statutory damages should be related to ACTUAL damages. That doesn’t sound like anywhere remotely close to a slam-dunk $150K. And how much “damage” do most small websites cause? Nearly insignificant because most small websites have minimal traffic to begin with. (Does a falling tree make a sound if no one is there to listen to it?)
Even with the RIAA cases, with all their supposed victories, the RIAA took a financial bloodbath while the lawyers made out like bandits. Of course, McCormack would relish the opportunity to go to court to collect his hourly fee but I don’t think Getty Images is stupid enough to GIVEN PERMISSION to McCormack to
swing his gonads around move forward on take on losing cases after the financial and public bruising the RIAA, Righthaven, and even Getty Images themselves experienced in court in recent years.
And this laughable part of “…cooperation with this investigation…”. This is sheer stupidity to even remotely cooperate. It would be easier to stop a police officer and say, “I just want you to know that I drove 15 mph past the speed limit but it was an honest mistake. I feel bad it was through a school zone and I didn’t see that school bus stopped on the other side. By the way, I happen to have the photo of my speedometer and the school bus if you want to see. I am being honest so you can forgive the incident.” Does this even really need to be discussed?
Also, there is this little thing in the U.S. called the Fifth Amendment and the right for everyone to not self-incriminate themselves.
Overall, there is so much to rip into on this letter. McCormack’s letter is one of the most egregious and factually inaccurate letters I have seen to date. For me, it comes close to violating the professional and ethics guidelines in most State Bars but I am no expert. I have grown tired of overbearing lawyers throwing their weight around. I have seen this too much and it is time to equalize the fight.
Anyone getting the McCormack letter on behalf of Getty Images has a tankful of ammunition for talking points here in this post.
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