Received a Complaint from BWP Media USA

[ZippySLC]

I hope it's alright if I jump in this thread with my Sanders Law story. If not I can certainly start a new thread.

I just came home tonight and found a regular mailed quasi-DMCA takedown notice from Sanders waiting for me. I run a discussion forum about a specific geographical area. I don't run ads, I don't make any money from it. It's been a labor of love.

In August 2013 one of my users linked to an article from a local newspaper about a forest fire that happened in 1962. They also posted a picture of the front page of the newspaper from 1962. Sanders is claiming that that image is infringement. I don't know if my user scanned his own copy of the front page in, or if that front page image was in the article that he linked to (which has since disappeared.)

I have not filed for the Safe Harbor protection with the Copyright Office. I wish I had known about it before this happened.

I'm not sure what I should do here. I see other people have been sued by Sanders and have lost. I also don't have a ton of money to throw at this. I've reached out and found a local attorney who will do a consult for $400. If there's something I should try before I go down that route I'd greatly appreciate it.

[Robert Krausankas (BuddhaPi)]

it would most likely fall under "fair use" if the article in question was being discussed, and if the image was linked there is simply no case, as linking is not "copying"...400.00 for a consult is a rip-off, find a different attorney, one that's honest!

[ZippySLC]

Unfortunately the user did not just hot link it, they attached the image file to their post. (So the file physically resided on my web server.)

Glad to hear $400 for a consult was ridiculous. That's what I was thinking but I have very little experience dealing with attorneys.

[Jerry Witt (mcfilms)]

They will probably bug you about this, but this is about as clear a case of Fair use as I have ever heard.

Out of curiosity, WHO are they claiming to represent? Is it the newspaper? Is it the person that wrote the original newspaper article? Is it the photographer of a picture along side the article/ OR is it the picture OF the newspaper article? (Probably not that last one.)

This is just silly. And you can tell them I said so.

[ZippySLC]

They are claiming to represent the publishing company that owns this newspaper (as well as others in the region.)

So there's two things I can think that they're claiming copyright of:
a) The original layout of the front page of the newspaper from that day.
b) The image that someone took (a scan I suppose?) of that newspaper page.

From what I can piece together, last year was the 50th anniversary of a big fire. A user on my site quoted an excerpt from a newspaper article (from the same paper) talking about the anniversary, linked to their site, and also grabbed that image which got republished in the anniversary article. Interestingly enough the anniversary article that my user linked to does not seem to be available anymore.

I totally agree that this is pretty clear-cut fair use. I'm just worried about the expense of having to prove that in court. On the other hand if it got to that I'd definitely be looking to recoup my attorney fees.

[stinger]

Odds are that if they have an attorney who understands fair use, it will never make it into a court room.  Some attorneys like to threaten court in anticipation of a settlement they do not deserve.  It becomes a business decision.  I hope you don't encourage their attorneys to continue this practice by paying them off.  But if you do, I will understand the peace of mind that buys you.

[ZippySLC]

Paying them off is really the last thing on my mind right now.

[Jerry Witt (mcfilms)]

Paying them off is really the last thing on my mind right now.

As well it should be. I sincerely doubt this would ever go to court. And although there is the old adage about someone who represents themselves in court has a fool for a client, I believe there is enough information on this site to successfully defend against a nutty claim like this.

Be sure to do a little research on the Righthaven madness. Their quest to sue bloggers failed for many, many reasons. But note this:

"Indeed, Righthaven seemed to have been caught off guard when judges wouldn’t fault bloggers for reposting photographs or quoting articles. In one of the most famous Righthaven cases, a federal judge found that Vietnam veteran Wayne Hoehn, who had posted all 19 paragraphs of a Las Vegas Review-Journal editorial, was within his fair use right to do so."  (from http://www.abajournal.com/magazine/article/the_righthaven_experiment_a_journalist_wonders_if_a_copyright_troll_was_rig/)

[ZippySLC]

The more I read and think about this the more that I am convinced that if this went to trial that the judge would laugh it out of the courthouse. I'm less worried about this now, and after seeing how many people are getting these letters and being frightened into settling, more eager to fight this if need be.

Interestingly enough, I wonder if they have to furnish proof that they're able to sue for the alleged copyright holder. I mean, what's to stop someone from claiming that they have permission to sue over an image when in fact they do not? Maybe Craig Sanders also has a bridge he'd like to sell me?

I don't tolerate bullies very well.

[JLorimer]

In my experience, a very strongly worded reply turned them away.  I based my reply on what others here have used against Getty and other trolls.  The request for additional proof, as well as a show of self-defense, seems to effectively turn them away most of the time.

[Matthew Chan]

I just did a ELI Support Call for a person and did some research on BWP Media.  IN 2014 alone (as of late August 2014), there are nearly 50 lawsuits filed by BWP Media. By and large, most of the lawsuits are directed towards larger media websites and organizations. However, BWP still bears watching for smaller parties.

In dockets.justia.com, you can find the actual lawsuits being filed. If someone is ambitious enough, these cases can then be cross-referenced with PACER to see the individual outcomes. I did not take the time to see if Sanders Law actually filed the lawsuits themselves or if they are "paper tigers" like "Timmy Mack" of (infamous McCormack Law fame).

The person I consulted with was largely engaging in a hobby website from his home. I believe he is of low risk right now as there is little money to be had if BWP Media decided to sue. AS with all the people I consult with (but don't provide legal advice), people have a direct line to me for any sudden status changes. I can then send them in the right direction if the matter escalates.

On the case I consulted on, Sanders has the paralegal, Stacy Berkowitz, sending out these notification emails. Interestingly, I saw no specific dollar amounts being requested.

[andru]

In my experience, a very strongly worded reply turned them away.  I based my reply on what others here have used against Getty and other trolls.  The request for additional proof, as well as a show of self-defense, seems to effectively turn them away most of the time.

Read through the entire thread - was curious though, what was the gist of the reply? I'd like to replicate it was I received something from Sanders in snail mail today, representing FameFlynet for a user posting a couple of images on my Web site (uploaded to the server.) I would like to respond in a similar fashion, strongly worded, etc!

[JLorimer]

I don't mind sharing the contents of my letter. I sort of have a process for my own sanity though. Since my SOL isn't up yet and I haven't outed myself personally, I don't want to cause any extra trouble for myself if Sanders happens to follow what I do here. I like to learn a little about the situation before sharing the text. Feel free to email or PM me for further discussion.

[Jerry Witt (mcfilms)]

Very wise JLorimer.

[Greg Troy (KeepFighting)]

ditto

Very wise JLorimer.