Possible to make generic letter available?

[Statik]

Hi all,

I am new to the site, although I have now read a good portion of it. I have a couple of questions:

1. Is there a summary of CANADIAN cases similar to the US summary available?
2. Matthew, can we use your letter on record (extortionletterinfo.com/mycase.htm) as a model?
3. Oscar, would the phrasing "did not know, nor could reasonably have known", borrowed from harrassment cases, be of use in these dealings?

I used to be a web developer. About 7 years ago, my brother contracted a graphic designer that I recommended to design his site and I was responsible for implimenting the design. This Monday, my brother received the first stage Getty letter. It claimed 3 images at $750 a piece, with the ever-present 10% discount. As a small business owner, my brother would not be able to pay this fee ($2025). I advised him to immediately take down the images, which he had already done. I have since advised him to approach archive.com and the others to have the archives removed as well.
I would like to send Getty a letter similar to Matthew's and try to resolve the issue. My company has not existed for over a year and the graphic designer has been out of the contenant for 5 years.
I don't mind creating the generic letter and sharing it with the group. I'm asking if this is permitted and if Oscar would like to comment on it.

Thanks for all your efforts!

Rod Naugler

[Matthew Chan]

My letter was not a "form letter" of any kind.  If you feel there are elements of my letter that can help you, feel free to adapt it.

MatthewC

[Oscar Michelen]

Dear Rod:

Canadian Copyright is generally very similar to American copyright law, but I have not summarized it for the site nor do I feel comfortable doing so. If your company is out of business I would not overly worry about it.  Getty is also not likley to sue a defunct corporation over three images.  I leave it to Matthew to commment on the generic letter issue.

Thanks for the post

OScar

[Statik]

Thanks for the responses Matthew and Oscar.

Oscar, do you feel that the phrasing I mentioned, "did not know, nor could reasonably have known" be of use in a Getty Response letter?
I think that part of the basic case against Getty is that people made an effort to get non-copyright infringing images, yet failed, were misled, or succeeded but no longer have the records to prove it. I know that in my brother's case, the images had been cropped, colored and blended with other elements of the website. There was no reasonable way for him to check the copyright information independent of the designer. Surely the Canadian and American law system must allow some leniency for someone who makes a reasonable effort?

Thanks again,

Rod

[Oscar Michelen]

Also, here's a link to a Canadian copyright blog on this issue

excesscopyright.blogspot.com

[Matthew Chan]

Since I am not a legal professional of any kind, I have nothing to lose by offering a layman's opinion.

I tend to think that in reasonably civilized societies, there is a such a thing as "reasonableness" that enters into the equation. Courts are manned by judges that are human beings.  No one will publicly admit it, but I believe judges can be subtly influenced or swayed by good arguments or even emotionality.  In fact, we have judges for a reason to make sure the law is enforced but also to ensure the right ruling or application of the law happens.

Having said that, "reasonableness" is in the eye of the beholder and there are limits to that argument.

Matthew

Statik Wrote:
-------------------------------------------------------
> Thanks for the responses Matthew and Oscar.
>
> Oscar, do you feel that the phrasing I mentioned,
> "did not know, nor could reasonably have known" be
> of use in a Getty Response letter?
> I think that part of the basic case against Getty
> is that people made an effort to get non-copyright
> infringing images, yet failed, were misled, or
> succeeded but no longer have the records to prove
> it. I know that in my brother's case, the images
> had been cropped, colored and blended with other
> elements of the website. There was no reasonable
> way for him to check the copyright information
> independent of the designer. Surely the Canadian
> and American law system must allow some leniency
> for someone who makes a reasonable effort?
>
> Thanks again,
>
> Rod

[Statik]

Oh, I understand that it is far from an airtight argument. I was just asking to make sure it wasn't out in left field.
Some phrases are appropriate, some are effective, and some are inappropriate or just wrong. They might sound right in my ears, but to a lawyer or judge they might scream amateur or idiot.

Rod

[Matthew Chan]

As Oscar can attest, I never let a simple thing like being an amateur or layman necessarily stop me from taking a position,  making an argument, speaking out, or taking decisive action. :-)

As a VERY general rule, it never hurts to speak out.

MatthewC

[Statik]

Here is the text I have prepared. Some of it is copied verbatim from Matthew's letter. Matthew, would you mind reading it over and letting me know if there is anything you'd like changed, or giving me permission to use portions of it. I wouldn't want to get into trouble for stealing your copyrighted material. Yes, I'm trying to be funny, but serious as well. I want to make sure you get the credit for all the hard work you have put into this.

15. Dec. 2009

Getty Images
601 N. 34th Street
Seattle, WA  98103

Reference #: 6070585
Case #: 940220

Dear Getty Images:

Thank you for your letter, dated 19 November, 2009, received 8 December, 2009, regarding an allegedly infringing images on secondary pages of our website.  You have brought to our attention these images actually belong to professional artist/photographers which you claim to represent, and thus they do not belong in the public domain.

I want you to know that I am treating this issue with the highest regard and attention.  I was quite shocked and horrified by your letter, not only because of the alleged infringement, but also by the aggressive and insulting tone. As a designer, my designs are copyrighted and the protection of my designs against infringement is important. I highly value the copyrights and intellectual property rights of all individuals.

I cannot apologize enough for this unfortunate circumstance.  When I had my website designed, I took pains to request only public domain images be used. I received assurances that every image on the website was not in anyway copyrighted or rights managed.  Despite the fact that this is very embarrassing, I also understand that the only way to peacefully resolve a problem is to acknowledge your issues and your concerns.  Better for me to be personally and professionally embarrassed than to have this matter be unnecessarily blown out of proportion.

I want you to know that within hours of my receiving your letter on 8 December, 2009, I had the offending images removed from my server. I can assure you that the use of the image was very much unintentional. I did not know, nor could have I reasonably known or discovered that they were not public domain images. I have yet to discover a free or inexpensive service that allows a company to have their website, or proposed website, scanned for potential copyright issues. As I am not a graphic designer, I am not familiar with which image services, such as your own, are available, nor would I be able to locate any image in these vast collections through visual means alone. There is simply no method available to me to check the source of the images provided to me by the graphic designer. I can only rely on the word of the alleged professional.

I have since done a second search through the Internet to try and discover a method of identifying the source of images that may have recently come available. I was not able to locate anything again. This means that I could not verify your claims independently. I could only verify that these images do exist in your catalogue.

I conducted an internal investigation with the original web programmer who placed the designs we received from the graphic designer onto the website, to clarify how and why this has happened. The short version is that I contracted the creation of the web template from a freelance web designer.  The designer has since left the continent.  As we guided the creative process in approving the web template styles we preferred, we were in no way associated with the acquisition or selection of individual elements for the template including the allegedly infringed images.  

In closing out this portion of the letter, you can be assured I have entirely deleted the allegedly infringing files from our web hosting server and will no longer be using them in any way. This in no way constitutes admission of purposeful infringement, nor of agreement with your claim to represent the artists involved. In the case of an alleged infringement, it is best to remove the items in question until the claim is settled.

At this point of the letter, I would like to focus on the tone and Settlement Demand portion of your letter.  While I most certainly understand and respect your need and right to protect your copyrights, there is generally a more cordial and professional way to do this.

Generally speaking, it is common business courtesy and practise to first issue a Cease and Desist letter allowing the alleged infringer the opportunity to correct the situation before threatening them.  In this case, either remove the copyrighted material, prove usage rights, or pay a reasonable fee for the license.

As a building designer and builder, with access to a photographer, I could have produced appropriate images for my website with ease. Because the graphic designer was in a distant location, I did not pursue creating my own images, but rather allowed the designer to locate public domain images that were appropriate. As a very small business, of which I am the sole proprietor, I could not afford even one of your images. I would not want one of your images. In fact, I directed the designer to not use images from services such as yourself. My budget for the entire website, both the design and the programming was less than the price you quote for one image.

Please understand that I am bringing this issue up to put your Settlement Demand in perspective.  This allegedly infringing image was one small element of a greater whole that was greatly changed and modified.  The low-resolution image was placed in a secondary page of a low-volume website for decorative purposes only, not marketing purposes.

I understand that you contend because the image was on our website, the photographer lost money and we should pay for the usage of it.  What I am telling you is, the photographers would never have earned any money from me in the first place because I would never have ordered any of these images on my own.  These images were not integral nor essential to the design of the website, only decorative accents.

I assert we did not order web images from the graphic designer, nor would we have approved of them if we had known their source.  We wanted and ordered a web template which happened to have “stolen” images components within it.  I would have been fine with a stylistic and creative template with no images whatsoever if it had been presented to me. In fact, it was the banner and menu background that was of importance to me, the accent images were not even part of my consideration.

I would like to point out that when criminal behaviour happens, everyone in society loses.  There are no winners.  My company has taken a loss and will take further loss to requisition and replace all our web template elements with something that is “certifiably” authentic, self-created, and/or licensed.  As such, it is unreasonable for you to expect someone to take a double loss so that Getty can “win”.  Without meaning to be condescending, any reasonable business person can see that.

For your company to assert an outrageous and extortionistic “settlement fee” in such unfortunate circumstances is highly distasteful and disturbing.  This action breeds much bad feelings and kills any goodwill your letter recipients may have had toward your company. Not only am I deterred from dealing with Getty Images, or any other such company, my friends in the industry who have heard of your practises are likewise deterred.

Recently there have been a large number of “settlement fee” emails and other money grabbing scams circulating. Your settlement letter, while exceptionally well put together, appears very similar. Since you claim to represent the photographers of these copyrighted images, you shouldn't mind sharing proof of copyright, and proof of a licencing agreement with the photographers in question. Otherwise, I only have your word that you have the right to even negotiate any “settlement”.

In addition, I would like to state that lack of a record with you does not mean a lack of right to use. As I have previously stated, I did not authorize the use of copyrighted material, however, as the designer has left the continent, I would not be able to verify that appropriate rights had been purchased. Just because you don't have a record for my company does not mean that I didn't have the right to use the images. Nor does my lack of proof mean that either.

Consider the following example:

While working in your garage one day, a representative for Canadian Tire comes by, enters your garage and recognizes several of their brand of tools in your collection. He presents you with an invoice for the rental of those tools for the past 2 years, at a monthly rate, since that is the earliest record they have of you using those tools. He states that unless you can produce a receipt for the purchase of those tools, you owe him the full balance of the invoice.

Does your lack of a receipt mean that you don't have the right to those tools? Does Canadian Tire have the right to invoice you if you don't have a receipt? If, in this case, you agree with Canadian Tire, that since you don't have a receipt, you should no longer use the tools, and stop using them, should Canadian Tire be assuaged?

I would like to share an analogy with you to illustrate one of my points with a scenario that frequently happens in the “real world”, shared with me by an acquaintance.

Pawn shops often buy DVD players and Video tape players (VCRs) both knowingly and unknowingly for re-sale.  There are clear laws that pawn shops should not buy suspected stolen goods.  But it happens anyway whether a pawn shop owner is honest or dishonest.  They sell those stolen players to an unsuspecting customer and they in turn “use” it to play movies in their homes thinking they are the rightful owners of the players.  

However, one day, law enforcement tracks down the stolen players to the unsuspecting customer's home, the police will confiscate the stolen players and return it to the rightful owner, no matter what the condition is.  When that happens, the unsuspecting customer clearly incurs a loss.  They get no refund or reimbursement from anyone unless the pawn shop voluntarily chooses to refund the money which isn't likely.

The rightful owner that had their players returned to them does not then go to the unsuspecting customer and insist they pay for any physical damages or rental fees for using the players.  They also do not sue them.  Why not?  Because the unsuspecting customer did not know nor did they have intent.  And when it is confirmed that it is stolen merchandise, it is returned.  Plus, it is simply bad form.

I fully understand that this argument does not exactly match infringement and copyright issues but it does the job.  I also understand the argument that if Getty Images did not take more aggressive steps toward everyone, there would be more piracy and infringements.  However, the flaw in your argument is that you are going after everyone, guilty or not guilty.  You are implying that the ends justify the means.  And you are basing it on your company's sensibilities and sense of right and wrong.  But you are not the judge, society and the courts are.  

The end does not justify the means.  In your efforts to “protect the photographers” and your company, Getty Images wants to steamroll over the legal and civil rights of others without due process?  You will presume guilt over innocence for every letter you send out?  This is highly inappropriate and unconscionable.  Anyone with any dignity or self-respect would not tolerate this.

Just as you seem to be aggressively pursuing your position in this matter, I am just as aggressive in defending my position.  Further, if I am aggressively provoked enough, you can be sure I will not simply defend this, I would take more proactive measures.  With this letter, I trust it will not come to anything more severe.

I cannot speak for anyone else except myself.  There may be many people who intentionally steal and use licensed images.  I am not one of them.  Forgive me but I don't accept your presumption of our financial responsibility of your so-called “losses” given these specific circumstances.  As I said, everyone loses when criminal behaviour happens.  I am already taking a loss without the “settlement fee”.  What makes your position more entitled for restitution and reparation than mine?  Anyone with common sense can see and understand this.  I believe if any judge were to hear this case and evaluate the overall context, intent, and actual damages (if any) your company incurred, it would strongly weigh in my company's favour.

At this point, I could go on endlessly explaining my position and you may still disagree.  I have done my research on Getty Images.  There is widespread information on the extortionistic tactics Getty Images uses in these matters.  In this regard, we are prepared.  Without getting into any specific statements, I just want to say I will not “roll over”.

I respect your company.  I respect your opinions.  I thank you for bringing the alleged infringement to my attention.  I promptly deleted the allegedly infringing images off the web server.  You have received this long letter with my best explanations I can give with assurances that this matter is closed.

We have further work and expenses to incur to replace the “work” we paid for but must now destroy.  This whole ordeal has already been frustrating and maddening.  But all of us have to move on.

It is my hope that we can both move forward from this unfortunate circumstance peacefully.  In closing, with this written reply, I consider this unfortunate matter and circumstance resolved and closed.

Thank you for your time, attention, and consideration of my explanations.

Respectfully,

All comments appreciated.

I am looking at sending this off Monday.

Thanks again all,

Rod

[Matthew Chan]

Rod,

My concern for you is that Getty Images is well aware of this website.  It is highly likely they keep up with the content as we post it.  While I don't really have an issue of you using my letter to defend yourself, I can't help wonder if you are doing yourself a disservice by emulating it so closely.  They might perceive you as "less authentic".

I believe one reason Getty Images backed off from me is that my letter was totally original. And while they may not agree with my arguments, I do believe they sensed I meant business and would hold to my convictions.  The letter worked for me because I meant what I said and it was original.  And while you may share my same convictions, your presentation may be perceived as less reputable.

But if you can live with what I said, then send the letter in.  If it works and helps, report back and make a small donation!  :-) wink, wink.

Good luck.

MatthewC