Received a Complaint from BWP Media USA

[Jerry Witt (mcfilms)]

I know it is after-the-fact, but I would encourage you to file as a DMCA agent:

http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/

[lucia]

It's not so much that I'm looking to archive it in the state it was.  It's more that I'd like it to be uncertain whether it ever existed in that state or not, especially if all they have is a screenshot. 

I understand all they gave you was a screenshot.  But as a blogger, I don't quite know why the fact that all they have is a screenshot affects your ability to know the state of your web page.  I can know stuff about my web pages based on my own access to the page. So I can determine what the state of the page is on any given date.  And my blog doesn't just go around randomly changing itself (unless it gets hacked. And if I was hacked, that might be a defense on a copyright violation!)

So I find myself asking: did you look at the html on the day you got the letter? Did the image appear on the page on the day you got the letter? Was there any element on the page (e.g. javascript ads) that might have contained the image they show in their screenshot? You don't need to answer that here. But you seem to want to know what constitutes 'evidence'.   If this got to court and advanced the defense that you think the image might not have been on the page and speculate that their screenshot might be photoshopped or faked or what have you, and I was the judge, I would want to know all these things I asked above. All would seem to be in your power to know. And rather than just hear you don't know whether the image ever appeared, I guess I'd want to know the state of the page on the day when you got the letter (or at least before you modified it to remove the image. Except... you didn't remove the image... right?)   So: your own screenshot of how it appeared on the date when you got the letter, an archive showing the html and so on would be useful to counter any BWP's screenshot.

It seems to me that if you did not modify the page and the image was not appearing on the date you got the letter, you would want to archive the html of that page on the date you got the letter.

Obviously, you can't archive things that currently no longer exist. If you were sued, what you do know, how you know it, and what evidence you  have to corroborate what you do know is the sort of thing that would come up in testimony.  That is: it might buttress you case to say that
(a) You believe you never uploaded anything of the sort and if you ever did, you certainly don't remember it.
(b) You have an archive showing what existed on the day you received the letter and that archive showed that the image was not on the page on the date you received the letter.  (That is: before you modified it to comply with their request.)

I guess what I'm thinking is that instead of merely trying to focus on whether you think there evidence is weak, think about what counter evidence you could have to show that you didn't copy that image.  You run the site. You can take screenshots, grab html and so on.  If your own screenshots, html and so on show the image did not display, that's in your favor.  If your memory is fuzzy, you really ought to at least show that the image does not display at your site. That would than put the other side in the position of having to advance a theory of how the images does display in their screenshot.

I think it's the difference between civil and criminal that I was trying to understand.  I wanted to determine if evidence needed to be beyond reasonable doubt.

No; beyone reasonable doubt is not the standard in a civil suit.   Watch "The People's Court".  You'll see there is no balance in favor of the defendant or the plaintiff and formally it's absolutely the case that preponderance.  The person who has 51% of the evidence in their favor is supposed to win.  That said, I'd say the defendant has a little edge.  If the plaintiff makes a claim and provides zero evidence other than saying "X happened".-- and I mean absolutely zero-- and the defendant just said "No. X didn't happen" providing zero evidence it didn't happen. The judge rules for the defendant.  Notice that's just "He said; she said." but judges do want plaintiffs to show some evidence before dragging someone to court. 

But if you watch a while, you'll also see that the plaintiff is not expected to have flawless evidence.  Plaintiffs will come in with photos, and judges look askance at defendants whose only counter evidence is "ever hear of photo shop?" Yes. Photos can be faked. But if the plaintiff has a photo, and testifies that they took that photo and it is not faked, that's evidence.

All in all, it's best to have archives to show what you can that might cast doubt on their "evidence".  So: for example, if you were to look at their screenshot and your html, find the element that seems associated with the spot where they show the image, discover that element is embedded javascript for an ad, then you could pretty confidently say;
(a) I don't remember ever uploading or seeing that image.
(b) You can see that spot where the image displays corresponds to javascript from an ad. That is: it's hotlinked. You could explain how the ads work (many judges surf the web, so they would understand how google ads and other similar ads work.)
(c) You would cite Perfect 10 about hotlinking and so on.

In this context, if you had an archive of the state of the page at the time you got the letter, your position would be stronger than merely saying "screenshots aren't proof".

I have not heard anything in response from them yet.   If I do, those are things I am hoping to ask for prior to a trial so that they know I am serious and this is not going to be easy money.  I don't know what they will volunteer initially if they are trying to get a payment out of me.  I will attempt to feel out the situation if we do have further contact.

If they are like Getty, they will volunteer nothing and just maintain that they are right and you are wrong, explain that copyright exists even if they didn't register (which is true, but still not responsive to why you would want to see the registration) and make it sound like they really believe they are the judge, jury and executioner, that they don't have to show you anything at all and that you have to pay.  And it's true that until they sue, they don't have to show you anything. But it's equally true you don't have to show them anything or pay them anything and so on.

However, should they sue, you get discovery, you both present your cases to a judge. The judge decides.

I have been discussing on another website as well.  This morning I read a comment from somebody who said the notice he received included screen shots.  His CMS sounds like WordPress, in that it must create different image sizes and thumbnails and then push them out to various pages based on categories, tags, post listings, etc.  He said a screen shot of each image, including thumbnail sizes was included and each was listed as a separate infringement.  Do you happen to know how that factors in if it would go to trial?  Could each size and use truly be counted as a separate infringement?  That is where I would think it would be essential for them to have the html on file because then they could compare image names in the html.

Wordpress does create images in various sizes when you upload. That's its default behavior. As its the default, and it creates default names, a bot that finds one image could be programmed to find all the images.  Technically, it's copying   '.jpg/.png/.gif' file to your server and displaying the image file is the infringement.  That fact that it can be loaded without loading a page means that when it comes down to brass tacks, I think the proof of infringement is showing the url of the image or images, not the page (or pages) in which the images is embedded. So, yes, it's possible that each of these images might be an infringement in and of itself. But a judge would have to decide on on that.  If your friend gets sued, he needs a lawyer to guide him on whether it's worth arguing that it's only 1 infringement, finding precedents, discussing the issue of 'de minimus' and so on.    Whether any of your pages display the images might be considered important by a judge-- I just don't know.  But at least hypothetically, each size might be an infringement.

[JLorimer]

I know it is after-the-fact, but I would encourage you to file as a DMCA agent:

http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/

I am in the process.  It's information I wish I had known in the past.  I was always under the impression that if you had a clearly defined contact area with a DMCA type form and you acted quickly then you would be safe. 

Do you think filing for safe harbor soon after will show good intent?  I'm going to file in any case.  I'm just wondering if a judge would see that as you taking steps in the right direction and that it might help past evidence in light of that.  I guess it could go the other way too in the sense that it looks like you're running for cover for future "infringements". 

[JLorimer]

I understand all they gave you was a screenshot.  But as a blogger, I don't quite know why the fact that all they have is a screenshot affects your ability to know the state of your web page.

You're right, it doesn't affect my ability to know the state of the page.  I think my fear is that the questioning would go something like:

"Did you know this image was on your page before receiving a complaint?"

"No"

"Did you look at the page before you removed it?"

"Yes"

"Did you see an image uploaded to your server?"

"Yes"

"Guilty"

(unless it gets hacked. And if I was hacked, that might be a defense on a copyright violation!)

I can prove that there have been thousands of attempts to hack my block.  I have bad behavior logs and more that show attempts to log in and break security.  I can't say that anybody did ever successfully get in, but I see that plenty of attempts have been made.

So I find myself asking: did you look at the html on the day you got the letter? Did the image appear on the page on the day you got the letter? Was there any element on the page (e.g. javascript ads) that might have contained the image they show in their screenshot? You don't need to answer that here. But you seem to want to know what constitutes 'evidence'.

That's a very good point.  I probably have been seeing this a little one-sidedly.  It's a good idea to start seeing just how much evidence I can collect in my own favor instead of just relying on how shoddy theirs may or may not be.

(or at least before you modified it to remove the image. Except... you didn't remove the image... right?)

I removed everything.  I all files on that page from the server and removed it from my database.  I'm not saying I do or don't have a complete backup in case they would happen to somehow be gleaning evidence from this page.   

That is: it might buttress you case to say that
(a) You believe you never uploaded anything of the sort and if you ever did, you certainly don't remember it.
(b) You have an archive showing what existed on the day you received the letter and that archive showed that the image was not on the page on the date you received the letter.  (That is: before you modified it to comply with their request.)

I have recently implemented a basic login log.  If nothing else, I would intend to show that the users do in fact log in.  I could potentially match the most recent IP address of the user who posted it, though I don't know if it would matter much since it is a new address and not one recorded on the actual day the complaint was filed.  I can't retroactively put it in place but it may help to be able to present the current state of some things.

If your memory is fuzzy, you really ought to at least show that the image does not display at your site. That would than put the other side in the position of having to advance a theory of how the images does display in their screenshot.

I can show currently that the image does not display and that the page that contains the image is now gone.

But if you watch a while, you'll also see that the plaintiff is not expected to have flawless evidence.  Plaintiffs will come in with photos, and judges look askance at defendants whose only counter evidence is "ever hear of photo shop?" Yes. Photos can be faked. But if the plaintiff has a photo, and testifies that they took that photo and it is not faked, that's evidence.

Understood.  I think the question I was really asking was more along the lines of, would it be absurd to produce my own photoshopped evidence as a counter to prove that a screen shot is not sufficient?  I would obviously state that the image is not real and point out the convincing elements of it that would show another screen shot that is just as convincing is not applicable.  I saw a scanned copy of a complaint someone else put online from this same round of trolling.  It is definitely a bunch of screen shots that look terrible.  It seems their evidence, at least at the "pay us now" stage is merely screen shots and urls.

In this context, if you had an archive of the state of the page at the time you got the letter, your position would be stronger than merely saying "screenshots aren't proof".

That's assuming that the user never uploaded the photo to my page and it really was either hotlinked or displayed by an ad.  I feel pretty safe if that is the route.  I'm coming at this from all angles at once.  The angle I'm trying to figure out is how to deal with it in the event that the image was uploaded to my server and having such an archive would show that it was.

If they are like Getty, they will volunteer nothing and just maintain that they are right and you are wrong, explain that copyright exists even if they didn't register (which is true, but still not responsive to why you would want to see the registration) and make it sound like they really believe they are the judge, jury and executioner, that they don't have to show you anything at all and that you have to pay.  And it's true that until they sue, they don't have to show you anything. But it's equally true you don't have to show them anything or pay them anything and so on.

Yes, that is the valuable information I have learned from reading all over this forum.  I had no idea that this sort of thing was happening out there.  I was previously living in this happy little bubble where people issued proper DMCA notices and honest parties complied and it was never an issue again. 

That fact that it can be loaded without loading a page means that when it comes down to brass tacks, I think the proof of infringement is showing the url of the image or images, not the page (or pages) in which the images is embedded.

I would expect that actual proof would consist of the direct URL to the image.  But I deal with rational people who also believe this is useful information.  I have learned that I shouldn't expect so much from trolls.

[lucia]

My head is spinning a bit here.  The reason my head is spinning is your saying

"I'm coming at this from all angles at once.  The angle I'm trying to figure out is how to deal with it in the event that the image was uploaded to my server and having such an archive would show that it was"

.   If you have an archive, then you have that archive and you can figure out whether that hypothetical is relevant to your case. It seems to me that you can look at the html and figure out if that archive does or does not contain html that would have rendered an image in the spot on their screenshot where BWP displays it. And if you find that image link (or link to whatever resource) it seems to me that you would likely have looked at that html to see if the image file was on your server or not. And you would likely have looked at the file  to see if it was or the image BWP says it was.  So: I cannot help but believe you know which "angle" applies to your case.  (I can understand why it's in your interest to not say which on this thread. No matter which angle applies in your interest to keep BWP in the dark until such time as you are ready to communicate.  But I should think you know which angle applies.)


Now, assuming the archive helps you-- that is, the image either does not display, or is hotlinked and so on-- the open question I could see where you might be at risk is if your user logged in, uploaded a file, displayed it a while. During that time BWP found the image, took the screenshot and so on. Then AFTER that, your user logged in, removed the file, modified the post. And then even later, you got the letter from BWP.   In that case: your evidence would have been collected after the image file was removed-- so your archive would show that *on the day you got the letter* the image was not there.    So, I can see where you might feel this is not the most conclusive evidence  in the sense that you might still be responsible for any copyrightviolation- but if the image was displaying on the day you got the letter and/or the image was not on your server, it is in your interest to archive that because there is nothing about archiving a page that shows no infringement that can harm you.  If your concern is about the other user, but the archive shows no infringement, I'd say: archive.  Doing so will require BWP to do more work to establish infringement-- they will need dates and so on.


On this:

I could potentially match the most recent IP address of the user who posted it, though I don't know if it would matter much since it is a new  address and not one recorded on the actual day the complaint was filed.  I can't retroactively put it in place but it may help to be able to present the current state of some things.

I suspect you can very easily convince a judge that you run a multi-user blog. Also, that the blog post was associated with another users.  I'm guessing you have an email of the other  user anyway and so on.  Don't put things retroactively in place. You just want to be able to say what was on that page ane explain the baisis of your knowledge.    Anyway, it's likely good if you did keep the html of the blog post-- if you get sued, you'll want to show that to your attorney as who uploaded might matter for the case.  Or it might not. I don't know. (This is where having a DMCA would have been wise for you. But that's water under the bridge.)

Understood.  I think the question I was really asking was more along the lines of, would it be absurd to produce my own photoshopped evidence as a counter to prove that a screen shot is not sufficient?

Not absurd. But a lawyer could better advise if it's a good tactic.  It may or may not be.

For example: If I were the judge (which I'm  not) or on a jury, I would (a) already totally understand that a screenshot can be photoshopped or faked and (b) realize the fact that it can be doesn't mean it was faked.  It's just like "People can lie". That doesn't prove that anyone in particular is lying in any particular case.  So, making this as proof would be pointless. <i>I already know this.</i>  Moreover, I would expect the plaitiff (BWP) to bring in html -- that is more than a screenshot-- because I would want to see proof the image was on your server and so on. So, for me, "proving" that photo shop exists would be pointless.  But you would have to talk to an attorney about that. Maybe it would be useful. I don't know.   

I would expect that actual proof would consist of the direct URL to the image.

I think actual proof of infringement would require this to be shown in court.  That doesn't mean it has to be in the letter they send a blog owner. But presumably if you took down the post and looked at the html you know whether the html contained a link to an infringing image hosted on your sever. If it did, they may already have that uri, or, if they sue you, they can ask you what you know about the image during discovery and also in court.   

[JLorimer]

So: I cannot help but believe you know which "angle" applies to your case.  (I can understand why it's in your interest to not say which on this thread. No matter which angle applies in your interest to keep BWP in the dark until such time as you are ready to communicate.  But I should think you know which angle applies.)

Correct.  I know which applies.  I know some of the trolls check these forums.  Just trying to keep some secrecy here in case they would attempt to connect dots.

I suspect you can very easily convince a judge that you run a multi-user blog. Also, that the blog post was associated with another users.  I'm guessing you have an email of the other  user anyway and so on.  Don't put things retroactively in place. You just want to be able to say what was on that page ane explain the baisis of your knowledge.

I added the logging ability yesterday as part of my general plan to beef up the site and make it more resistant should something ever happen again.  I suppose it doesn't matter one way or another if I don't attempt to bring that into the equation.

I think actual proof of infringement would require this to be shown in court.  That doesn't mean it has to be in the letter they send a blog owner. But presumably if you took down the post and looked at the html you know whether the html contained a link to an infringing image hosted on your sever. If it did, they may already have that uri, or, if they sue you, they can ask you what you know about the image during discovery and also in court.

Do we know details of any case that has gone to trial?  If so, is there any mention of what means were used in the end to prove the infringement?  I have attempted to look at various scanned documents.  I admittedly understand very little of what I read in legal documents.

[Oscar Michelen]

BWP Media has not gone to trial on any claim. Almost all of them have settled right after filing I don't know that they want to take a case to the wall. They are in it for quick resolutions and payments. 

[JLorimer]

First of all, thanks for responding Oscar.  I appreciate you taking the time.

Now, well, it happened today.  Almost exactly 8 weeks from my response to the claim filed with domains by proxy, I received a paper letter.  I was hoping I was in the clear because it took so long.  In fact, I almost posted earlier before receiving the letter as an update.

It does not include a pending docket number or anything like other examples I have seen.  It is just printed on regular printer paper like you would buy for yourself at the store.  It's even pretty crappy inkjet printing.  The letter advises to do all business via phone or email, no mention of paper.  It was not delivered certified.

It contains mention of a single "infringement".  Just a screen shot and a web address.  Nothing more in the way of evidence.  The first four pages are basically a copyright "tutorial" convincing me of why I should pay a settlement.  It does not suggest a settlement amount, which I thought was generally considered a good thing to ask for when demanding a settlement before a lawsuit.

Any progress or reports from anybody else who has received?  Are you waiting it out?  Did you respond past this phase?  I have a response almost formulated to send but I'm going to sleep on it for a few days to decide if I will even respond.

Has any of these gone to trial as far as anybody knows?  There doesn't seem to be any type of discussion of how serious these guys are anywhere on the net.  I check the Justia listings every day and watch the numbers of trials go up against LLCs.  I also saw Sandra Rose's impending lawsuit has made a bit of a splash in the new year.  Anybody have any helpful new info?

[Robert Krausankas (BuddhaPi)]

don't call, don't email, the fact they sent it regular snail mail, means they don't even know if you received it..Let them think you didn't.. does the URL included point to the image path? if not this proves nothing, nor does the screen shot. Everything previously mention in this thread still applies..

[JLorimer]

Thanks, Robert.  While I have read a number of things here, I have only just now really started to get into the video content.  I have been playing the audio in the car and using every free moment I get to listen to the wealth of information.  I have appreciated your participation in the discussion, especially in the bits I listened to today.

While I agree with all of what you said above, I do want to show that I made a good faith effort, should things go to trial.  I had to laugh earlier this week when someone called conversing with Getty "jousting with clowns".  By no means do I have a desire to do anything with clowns, even though this is not Getty.  Today I finalized the first and only letter I intend to send.  I have admitted nothing and requested substantial proof.  It will be sent certified.

In addition to requesting proof, I have made a strong statement of objection to the heavy handed methods employed that includes a guarantee of what authorities I will contact should the baseless claims continue.  In particular, it included a statement I heard you mention you would now make if you could go back to your own beginning. 

I know this is far from over but I feel a great relief now that I have finally written this.  I will feel even more relief after I send it tomorrow.  At some point I intend to share my own case so others can benefit.  The time is not right for that quite yet, however.

[stinger]

Welcome to the fight, JL.

[Greg Troy (KeepFighting)]

I agree with you JL, that a good faith effort should be made but I strongly recommend that no payment of any kind will be sent even if they agree to your amount without proof of claim.

[JLorimer]

I fully agree, Greg.  No money will be leaving my pocket until sufficient proof is provided, whether I am right or wrong.

[JLorimer]

The observed date on the letter I received is from several months ago.  Is that the date that will be used for the statute of limitations?  If so, I'm almost a year into my waiting period...

[stinger]

The statute of limitations actually starts from the day they discover the mis-use.  So the question becomes, what is the earliest day you can prove that they had made the discovery.  Usually that is their first contact with you.  But if they send you their "proof" document and it happens to have an earlier date on it, that would seem to be the date the courts would use for when they discovered the mis-use.