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Author Topic: ELI Currently Exists Based On Annual Agreement Between Matthew & Oscar  (Read 11145 times)

Moe Hacken

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Matthew, I wasn't suggesting YOU should do the FAQ. I think a volunteer effort could do that. The idea would be to create a single point of newbie info to help buffer the panic calls and emails. I certainly don't believe you need any more work on your plate!

I do appreciate all that you and Oscar and the members have done. It seems like you've put a massive amount of effort into this cause.
I'd rather die on my feet than live on my knees

adam

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Matt,

I will setup some time with you soon.  Perhaps later this week or whenever is convenient for you. Thank you. 


I was stunned with your ELI contribution. I believe it is the single largest ELI contribution by anyone in ELI's short history. Thanks so much. It is greatly appreciated. Normally, a $50 ELI Contribution gets you a 30-minute support call. You obviously get a lot more for being so generous. You get to jump to the front of the line here.

As a result of your contribution, I will be putting out more information as to the the behind-the-scene support resources ELI utilizes and some of its direct and indirect costs. Some people might be surprised.

I revamped all the Paypal buttons and configurations. I finally implemented a new "subscription contribution" feature that was suggested to me late last year.  (I am sometimes slow with some good suggestions to my own detriment.)

Again, you have my gratitude for your contribution.  Give me a shout and let's look at your case. You earned it.

I'm a newcomer but I appreciate this site and have sent in a small donation ($100).  However, at the end of the process it gave me an error:

The system cannot find the file specified.

on domain mcssl.com.

Please comfirm this domain is legit to even be in your process (I used the donate now link at bottom left of forum), and make sure you get the money.  Then you may want to get this fixed.

Further - I own a website design company and would be willing to donate design or hosting services ongoing. 

Thanks for everything.  I also retained Oscar today.

SoylentGreen

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I've noted that some folks have commented about a FAQ.
I wrote up something of a "strategy guide" a little ways back (on Jan, 11, 2012).
The only thing that I'd change is that "bulk registration" is not a "guarantee" of a dismissal or win for the defendant.
I think that Masterfile had a partial victory in this regard agains Martin Gale.

----

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.
---

S.G.

 

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