Image was sitting in a directory - not live - is my circumstance special?

[nwhit23]

Hi everyone...

Believe me when I say that I have read the crap out of this forum and have gone all over the internet trying educate myself on this situation and I really do have a good grasp on what's going on. But, I feel like I haven't been able to figure out some specifics regarding my situation, which is why I'm posting.

I would love to get some advice...

Do I have a special circumstance??

While I do feel that I'm in the same boat as most people here, I feel like my situation may be different because of one thing -- the image that Getty has contacted us about was never actually live on any webpage. It was never incorporated into any HTML or used for anything promotional or editorial. It seems that the image was sitting in a directory on the server and was picked up by Getty's bots.

While many people say that their first letter included a screenshot of the image being used on their site, OUR letter simply included a screenshot of the image sitting in a browser (like this -- http://upload.wikimedia.org/wikipedia/commons/thumb/6/6a/Mona_Lisa.jpg/396px-Mona_Lisa.jpg -- only it wasn't the Mona Lisa), with the address bar holding the exact URL of the image on the server.

I know that Getty won't care about the specifics, but the first sentence of the letter they sent reads...

It has come to our attention that you are using an image (or images) represented by Getty Images for online promotional and/or editorial purposes

But, my big hold up is that the image isn't being used for promotional and/or editorial purposes. It was never used for promotional or editorial purposes. It's never even been displayed on a front facing part of any website under our control. Even the screenshot that Getty sent is just the image itself -- not in use in any way.

So, while many people are saying that any copyright infringement was unintentional, I'm wondering if this is even copyright infringement 



The backstory, if you care (I'll be brief)

I am a very small-time web developer, and my current situation concerns a site that I created for a friend that purchased a specialized retail shop. I built the site on a placeholder domain, that's not publicly accessible or promoted (a testing site really) and when the site was ready, I moved it to the domain they use for the shop. Pretty boring story, eh? That's what I thought.

The other day, the Getty saga began. I was sent an email from a worker at my friend's shop telling me that they had received the Getty letter in the mail. He said that he wasn't familiar with the image that they were referencing because it wasn't being used anywhere on the site, but he was able to find it through the site's content management system. He asked me why I had uploaded the image to the server and where it had come from.

I assume that it was an image that I had accidentally moved over from my test site (when I finished building their site, I just made a huge copy and moved it over, images and all). I had never heard of this entire situation -- I always make sure to stay on top of copyrights and I only use images with permission -- so I assumed that it was a veiled DMCA threat and I told him that it probably wasn't a big deal and that I would respond to it. I quickly removed the image in question and waited for a response from the worker. The next day I got an email response from my friend (the owner) telling me that they had called the number on the Getty letter and that these guys meant business. I don't know what information they shared with the Getty representatives.

Honestly, right now I feel like I may be in the middle of a pretty horrible situation. Like many others here, I have NO money to give to Getty. Just gonna throw this out as well (since I see that it is often suggested), I don't even have ANY money to throw to Oscar to have him help me out with his letter program.

ANY good advice would be of great help here. I don't want to just tell me friend to wait it out and stand the harassment -- especially when I see that more and more of these letter threats seem to be turning into real lawsuits.

[JLorimer]

First of all, welcome to the forum.  As I am sure you have seen many times, take a moment and breathe.  You have time and options for dealing with this.

I don't believe your circumstance is special.  I am fairly certain I have read at least two or three other stories like yours here.

Even though web developers will often consider a file non-public if it is not linked from anywhere in html, there are still a few methods that it can be publicly revealed.  If you are able to open a browser, type in the URL they sent you in the screen shot, and be taken to an image without any type of limitation, then technically it is publicly available.  There is nothing stopping it from happening like password protection, encryption, etc.  Directories on a website can be, and often are, indexed even when there is nothing pointing to the contents within. 

For example, anything in the root directory of your site probably will not be indexed because you have an index.html, index.htm, index.php, default.html, etc.  However, let's say that you have a header graphic in a folder /images, that is something like /images/header.jpg.  You link to this and a robot scanning the site can see that you have linked to this.  So it removes the header.jpg and just visits /images because it now knows this directory exists and contains at least one thing.  At this point, if you have not instructed your web server to display an error for a directory that does not have a default when something visits it, your web server will often list out the contents of the directory instead - including sub folders and files.  See http://httpd.apache.org/docs/current/mod/mod_dir.html for a brief description of how the Apache web server handles things.  You have likely run across these listings in your own browsing experiences in the past.  The links to the files and directories are clickable and work just like a normal website.  So even though you didn't link to the file anywhere in your html, your webserver probably still told the Getty robot about the image in one way or another. 

Your story is similar to others.  Keep reading to see how they have handled theirs.  A few discussions that may be relevant:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/possible-reasons-for-class-action-suit-against-getty-in-the-usa/40/

http://www.extortionletterinfo.com/forum/mccormack-letter-forum/never-received-getty-letter-but-got-mccormack-email-help!/

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/received-letters-from-ceg/10/

[Robert Krausankas (BuddhaPi)]

I fully agree with JLo ( haha) in his/her above post, but I would venture to say they have no case. It is on them to Prove you infringed, they have no such proof. Getty CEO and top ass hat Jonathan Klein states on video that it is perfectly allowable to use Getty and share images to a degree, it's when you use them to make money they feel the need to be compensated.. Now if they have actual code showing a specific page pointing to and calling that imagem they "might" have a case..from the sounds of it this code never existed..

You could have purchased that image from Getty or another stock house, decided you no longer needed it, let the license expire, all the while leaving the image sitting in that directory, who's to say??

Your friend/client made a mistake by engaging them, they will simply cut you out of the equation completely as they now are aware they have someone on the hook.

[lucia]

I suspect that your cases would be "de minimus".  I'll take an oscar quote from

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/pdn-article-featuring-%27kindly-uncle%27-glen-carner/10/?wap2

Davis v. The Gap,246 F.3d 152 (2d Cir. 2001).  Another interesting section on this case talks about how de minimis (minimal or trivial) infringement is not infringement at all:

"The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on Jose de Creeft's Alice in Wonderland sculpture. We record television programs aired while we are out, so as to watch them at a more convenient hour.8 Waiters at a restaurant sing "Happy Birthday" at a patron's table. When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement." 

 

Anyway: It sounds like the only way anything would find that image is to send a bot to scour your site. So, the only "display" is to bots-- not even people.  What you should do on the legal level, I don't know. But I suspect with a good lawyer, (and possibly with none-- but help in pointing out the issue) Getty would lose. (Note: I am not a lawyer.)