Is posting links copyright infringement?

[NotATarget]

In reference to "those" letters from Sanders, representing BWP:

I'm curious about two things:
1) With a "contact" link on every single static or dynamic page on a website, can DMCA safe-harbor apply when the site doesn't have a registered agent. Doesn't due-diligence play into this - if an image is alleged to be infringing why couldn't there simply have been an effort to click "contact". Seems it would have been more onerous to go through the hoops to determine a DMCA agent... There also seems to be a deliberate skipping of steps that to my way of thinking would more buttress a plaintiff's case (obviously the point in an extortion scheme)?
2) Links. Can you really be sued for a link? Didn't Google go through a similar case for their search engine caching links/thumbnails or such. Where does the law stand on such matters if the image was never hosted on a defendant's site in the first place and, say for example, was simply linked from what was considered an official source?

[Greg Troy (KeepFighting)]

Not exactly sure what you are Basking in the 1st part.

As for your 2nd question hotlinking is not infringement. In the case you were thinking about is Perfect 10 v..Google. Another similar case was Perfect 10 v. Amazon. Perfect 10 tried to sue these 2 companies among others for hotlinking images on their sites. The courts ruled that hotlinking was not infringement because the images were not actually on the sites or the servers but hosted on Perfect 10 servers.

[NotATarget]

Not exactly sure what you are Basking in the 1st part.

Thanks for the response on the second part.

In the first part I'm wondering about DMCA safe-harbor - is the only way to avail yourself to this to have registered an agent? Would the courts not look unfavorably on a complaint that hadn't requested any take-down request prior to filing suit (or extortion)? While I understand the agent being a single location to look-up a contact for a website, isn't having a contact link on every single page "good enough" so that a complainant couldn't fairly argue "I couldn't find a contact to request take-down"? Yet they find your name/address via whois! Where these images seem to be un-watermarked and publically posted on original source sites with no restrictions listed it seems a cheap shot being taken.

[Greg Troy (KeepFighting)]

I will try to answer your question but I am not as well-versed on the DMCA agent issue as others, perhaps Robert or Jerry if they see this can chime in with any additions and/or corrections.

Also remember that the DMCA and registered agent protects you from images OTHER people be upload to your site not from images you placed there yourself.

I don't think that it does make a difference in the way you are thinking. It makes a difference in the way the artist or the person representing the artist must behave. It makes a difference how a company such as Getty Images that in my opinion is not truly interested in protecting the rights of the artist and are using their letter program as a business model to make money will respond to you. If you have a contact link on every page it will make it much easier for them to know where to send her demand letter claiming infringement and you must pay big bucks to them. Getty will tell you it doesn't matter that someone else uploaded the image to your site you are responsible and you must pay. If you have a DMCA agent you are protected and Getty must send a takedown request to the agent rather than a hefty "legalized extortion" demand letter to you.

Not exactly sure what you are Basking in the 1st part.

Thanks for the response on the second part.

In the first part I'm wondering about DMCA safe-harbor - is the only way to avail yourself to this to have registered an agent? Would the courts not look unfavorably on a complaint that hadn't requested any take-down request prior to filing suit (or extortion)? While I understand the agent being a single location to look-up a contact for a website, isn't having a contact link on every single page "good enough" so that a complainant couldn't fairly argue "I couldn't find a contact to request take-down"? Yet they find your name/address via whois! Where these images seem to be un-watermarked and publically posted on original source sites with no restrictions listed it seems a cheap shot being taken.

[Robert Krausankas (BuddhaPi)]

Very simply, No a contact on every page would not be "good enough" , you have to go thru the motions of registering a DMCA agent, which is plainly visable and easily accessable. If you the site owner uploaded the infringing content, having a DMCA agent wouldn't matter, as you would not be covered by the safe harbor provision. This only covers items uploaded by users and NOT site owners.

The courts would not look unfavorably at a complaintant if they did not request a cease and desist, it's got nothing to do with how the law is written..it's really not relevant to anything..in terms of the law. alot of people "think" that a cease and desist is the first step, just like most people "think" that an image must have a copyright watermark...neither is true..

so bottom line is:
1. If your site allows "users" to upload you should invest the time and money to have a registered agent.
2. You the site owner would NOT be covered by DMCA, if you uploaded offending content.
3. As Greg stated, "linking to" or "hotlinking" to images/content would not be considering infringing as no "copy" is being made or uploaded to your servers.

[NotATarget]

OK, thanks. Naught to worry about then re: linking. Will register a DMCA agent. Seems like the price (a tax or insurance depending on POV) for having a public website.

[Greg Troy (KeepFighting)]

If you allow people to upload to your site then it is highly recommended.

OK, thanks. Naught to worry about then re: linking. Will register a DMCA agent. Seems like the price (a tax or insurance depending on POV) for having a public website.

[Robert Krausankas (BuddhaPi)]

If you allow people to upload to your site then it is highly recommended.

And if you don't , it's not as you yourself would not be covered by the safe harbor protections it affords.

[Greg Troy (KeepFighting)]

Excellent point, thanks Robert!

If you allow people to upload to your site then it is highly recommended.

And if you don't , it's not as you yourself would not be covered by the safe harbor protections it affords.

[NotATarget]

Just an update to this original thread...

It's been more than six months since I received my "letter" from Saunders. There's been no contact since. Whether or not that is a good thing, well TBD.

From following the forum in the interim, two take-aways seem to be of paramount importance:
1) DON'T REPLY. This is particularly tough. I don't know if it'll keep me "safe" from any follow-up, but in the very least it can't hurt, especially for a non-registered letter; and the risk of saying something that can be used against you would seem to make this obvious. Even if you think you're being hard done by, or have an "easy" explanation, just don't feed the trolls!
2) Register a DMCA agent *if* that scenario applies to you (which it did me). Though since anyone can look that up a lesson learned is to NOT use your personal contact details if you don't want those details harvested by third parties...

So... I continue to wait... With far less apprehension than I had when I first received the "letter."

[Oscar Michelen]

Those are two very good points to take away. But remember that the first point to take away from this site is that know where the images YOU put up on you r site came form and make sure you have appropriate permission and license to use them. 

[NotATarget]

Well, received an email version of the letter today, again threatening legal action over the use of a inlined image posted by someone else (at the remote location) & hosted elsewhere. There is no way I'm going to plug in the access code to see what they think someone should pay for not infringing copyright.

I'm really rather bemused by this. Since inline linking is not settled, going to watch where this one goes as to my way of thinking it would have massive ramifications on the whole of the internet - but a battle better fought by some entity with deeper pockets.

[Robert Krausankas (BuddhaPi)]

as long s it hosted elsewhere, you're golden..  You could contact them and tell them is no infringement, cite the perfect 10 case and advise them if they continue to persue YOU will consider filing suit against them!

[NotATarget]

as long s it hosted elsewhere, you're golden..  You could contact them and tell them is no infringement, cite the perfect 10 case and advise them if they continue to persue YOU will consider filing suit against them!

Thanks, should it progress further than the non-certified "letter" method, then I shall certainly retain a lawyer to write such a letter. It's just interesting, as a NON-lawyer, to read cases on which some of these topics have already been tested (and as such I may be misinterpreting the rulings or applicability).

With Kelly v. Arriba Soft  or Perfect 10 v. Amazon, it took about 3 minutes to find both of those cases, not to mention 17 U.S.C. § 107 (fair use for news reporting; which definitely IMO - though I'd still rather not have to go to court for satisfaction to prove the point applies to the use of the link to the image in this situation).

Aren't such things fundamental, suggesting that attempting to, at least what I perceive, as "shake down" a person via mail or email, is mail and/or wire fraud? That's my biggest problem with the whole situation - the moral level.

18 U.S. Code § 1341 ("Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.")

18 U.S. Code § 1343 ("Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both")

[NotATarget]

Had another email. It's almost amusing watching this process tick-tock towards SOL... Certainly, not that I'm laughing.

THE MOST DIFFICULT PART REMAINS NOT RESPONDING TO THE TROLLS!!!!