Settlement demand for images from an RSS feed (gettyimages)

[Jerry Witt (mcfilms)]

And why does an ordinary citizen have to inform a "Copyright Compliance Specialist" from Getty about US Copyright law?

Could whoever is reading this from Getty Images please ask Ms Nancy Monson? I would really like for someone from that organization to just clarify their position.

[Robert Krausankas (BuddhaPi)]

http://copyright-trolls.com/site/getty-images-very-own-nancy-monson-might-deserve-the-asshat-of-the-month-award/

[Greg Troy (KeepFighting)]

It just shows that Getty and their employees really don't care and are not interested in the protection of their artists IP rights but only in their business model. 

[Couch_Potato]

When does Getty's behaviour bridge the grey area between legal and illegal?

They love to tell letter recipients that ignorance is no defence of the law but surely blatantly lying to someone about what constitutes copyright infringement in order to obtain money could be considered extortion.

[stinger]

Couch_Potato, I think that is a question for the courts to answer, but filing a suit is expensive, time consuming, and risky.  If they get a judgement in their favor, they can become even more of a monster.

I suggest you, and anyone else on this forum who feels they have been lied to by lawyers seeking to collect money, pursue the extortion issue with the Washington State Bar Association.  It is my understanding that others on this board have found that extortion does violate the Washington Supreme Courts Rules of Professional Conduct (RPC) and therefore falls within their jurisdiction.

[SoylentGreen]

The fact that "hotlinking" is not infringement lies in "case law", and not actual "copyright law".
Therefore, I think that Getty is entitled their "opinion", even if we disagree with it.

But, yes... Getty is misleading people into paying money they don't owe.
It would be difficult to make a strong legal case against Getty on this basis, though.

S.G.

[lucia]

soylent--

If all you mean is the copyright law doesn't explicitly describe the practice of hot-linking and explicitly stating that act is or is not a violation, I agree with you. If the statute was that clear, there likely would have been no Amazon v Perfect 10 in the first place.

But the case law is the result of the court interpreting and applying US copyright law to the facts in place. Right? And I'm pretty sure in the end the 7th circuit did the same thing with the male porn case. I need to dig that up. You can get a lower court ruling that said it wasn't going to apply Amazon. V Perfect 10, but that got appealed. Posner wrote something. It's a fun read-- but I don't remember the details.

[lucia]

Flava--
http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=53931
https://www.eff.org/my/cases/flava-works-v-myvidstercom
http://en.wikipedia.org/wiki/Flava_Works_Inc._v._Gunter

Many things were alleged by Flava.  I think the part relevant to hot linking is

myVidster was also not responsible for any performance "publicly". While arguably at infringement "performance by uploading" took place, this was not related to myVidster. On watching, myVidster users received the media directly via a third party (myVidster "did not touch the data stream") and the "performance" was neither "public" nor "performed" by myVidster. (By analogy, when a newspaper states a play is on, and provides directions to where it may be seen, it is not thereby "performing" them or causing them to be "performed") To decide otherwise would "blur the distinction between direct and contributory infringement" to an inappropriate level.

I this case, the hotlinking would be "framing" since the content was videos.

There are many many fun quotes in that ruling.

[SoylentGreen]

Of course, I agree with Lucia.

My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".

In fact companies and people accuse each other of legal transgressions every day.
Somebody's always right, and somebody's always wrong.  But, the accusation itself isn't a "crime", or "fraud".

Now, if some actual material facts were misrepresented, somebody paid, that person could prove such, AND they didn't sign a confidentiality agreement, they MIGHT have a case against Getty.

...and yes, I know where this is going... and it's a waste of everybody's time.

S.G.

[DavidVGoliath]

The fact that "hotlinking" is not infringement lies in "case law", and not actual "copyright law".
Therefore, I think that Getty is entitled their "opinion", even if we disagree with it.

Even the Electronic Frontier Foundation admit "The legal status of inlining images without permission has not been settled" (http://www.chillingeffects.org/linking/faq.cgi#QID230)

This is because 17 USC § 106 states the following

"in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly" (emphasis mine)

Consider the following: Entity A purchases a license to use a photograph or graphic on their website. Entity B comes along and 'hotlinks' to the photograph that Entity A have legitimately licensed.

To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.

Entity B, via their actions, has bypassed the legitimate licensing market for the original photograph/graphic and - on these actions - a rightsholder would be pretty much entitled to the opinion that their copyrights have been infringed (with any fair use claim probably sailing out the window too)

If the actions of Entity B were entirely legal per copyright legislation and case precedents, why would anyone ever want to legitimately license an image?

Oh and yes, I'm well aware of the 9th Circuit's opinion in Perfect 10 vs. Amazon... but that dealt with thumbnail-sized images. What I'm talking about here is an attempt at circumvention of copyrights in an effort to use full-sized images on websites without paying for them.

It appears that "hotlinking" to images doesn't (or hasn't) happened on a sufficiently large enough scale from any single infringer to make the matter viable for pursuit through the courts to the appropriate level to once and for all get a definitive answer.

[lucia]

DavidVGolliath--
The 9th circuit and 7th circuit both ruled it was not a copyright violation.The other 9 out of 11courts have not ruled on the issue.

The circuit courts are directly below the US Supreme Court ( aka "SCOTUS") and their rulings are binding in their jurisdictions until overturned. You can see the extent that covered by the 9th and 7th:

http://upload.wikimedia.org/wikipedia/commons/thumb/d/df/US_Court_of_Appeals_and_District_Court_map.svg/620px-US_Court_of_Appeals_and_District_Court_map.svg.png

The parties (both pornographers)  who lost their copyright cases and whose loses results in rulings that inline linking is not copyright either did not appeal their cases to the US Supreme Court or SCOTUS declined to hear them. (I don't know which is true). So, SCOTUS has neither heard nor ruled on the cases. As they have not ruled, and there are no rulings in 9/11 circuits one might prudently say the law is not settled.

That said: For all practical purposes the case law is settled in the 9th and 7th where the rulings from Amazon v. Perfect or Flava v. whosiwhatsit hold.   Until SCOTUS rules otherwise, inline linking is not copyright violation in these districts.  Meanwhile, one can correctly state that the issue is not settled in, for example,  New York (2nd district)  or Alabama (11t district) .

It's worth understanding that as long as the circuits are agreeing with each other, (as they are), it is unlikely SCOTUS will accept any appeal though they might if some of the judges of the Supreme Court were dubious about the lower court ruling.  So, one will find the issue is technically "not settled" until such time as every single one of the 11 courts rule and all are in agreement or the issue gets to SCOTUS.  Chances are neither will ever happen. There are zillions of issues like this.

As for who is saying what: Stinger and I live in the jurisdiction of the  7th circuit. The server I use in in the 9th. Getty is in the 9th  circuit.  Getty, writing from a jurisdiction where the prevailing court ruling  is that inline linking is not copyright violation, told me,  living in a jurisdiction where the prevailing court ruling is inline linking is not copyright violation.   The server I use is in a district where inline linking has been ruled not copyright violation.   Its all well and good for EFF or someone to claim there is something unsettled here. But to some extent, everything is "unsettled" in the sense that at any time, any ruling could, hypothetically, be overturned.

The fact of the matter is: if Getty wants to prevail in a copyright suit for my inline linking of a cardinal, they are going to have to present it in the 7th circuit where the case law ways it's not copyright violation. The local judge will apply Posner's ruling. Then they will have to appeal to the 7th. Were they will have to try to explain that to Judge Posner (http://en.wikipedia.org/wiki/Richard_Posner) that he was wrong.  And then, when he rules against them, they will ahve to appeal to SCOTUS, who will probably not even accept the case. EFF will continue to say the case is "not settled" because SCOTUS will not rule.  Getty will have lost.

And you know what? I think it's unlikely this will ever be "settled" because at most 2 more circuits will ever be willing to hear the cases, when they do, they will agree with the 7th and 9th. After that, no one will appeal to SCOTUS and SCOTUS will never rule.

But the fact is: When Getty claims it doesn't matter whether one put the file on their server: They are wrong. So far, US circuit courts that have ruled say it does matter. Anyone who gives Getty a penny for a hotlinked image is a fool. 

[SoylentGreen]

I quite agree that Getty would be unlikely to prevail on the basis of a "hotlinked" image.
Additionally, I agree that it would be foolish to pay Getty for such an alleged infringement.

Couch_Potato asked, "When does Getty's behaviour bridge the grey area between legal and illegal?"
I don't think Getty has done something "illegal" in situations like this.
It would probably be a "losing case" for Getty, but it's not a crime for Getty to imply that they "might have a case".
Especially given that one can literally sue over anything.

S.G.

[lucia]

To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.

Yes. But this is irrelevant to the ruling in both Amazon v. Perfect 10 and Flava v. MyVidster.

Consider the following: Entity A purchases a license to use a photograph or graphic on their website. Entity B comes along and 'hotlinks' to the photograph that Entity A have legitimately licensed.

To any layman, the formatting and display of Entity B's site makes it look as if they too are using a legitimately licensed image. Only by inspecting the code of the site would anyone know that the image/graphic is not hosted on their servers.

Entity B, via their actions, has bypassed the legitimate licensing market for the original photograph/graphic and - on these actions - a rightsholder would be pretty much entitled to the opinion that their copyrights have been infringed (with any fair use claim probably sailing out the window too)

Are you asking why Entity A might license if entity B could just hotlink the images Entity A displayed? If Entity A is  the New York times, I can think of dozens of reasons why someone like The New York Times  or the Wall Street Journal might want to license from the photographer rather than trying to find an image someone else is displaying.  They might find it commercially useful to be the "go to" places for all the "Bs" who want to hotlink. Or they might not like to be seen hot-linking from party 'Z' (who presumably bought a license) . Or as commercial entities, they might find it less expensive to license than to pay their workers to hunt around for appropriate images to hotlink.  Or they might not want to run the risk of hotlinking from "party Z" who is a competitor of A,  notices A is hotlinking gets pissed off,  fiddles with the Z's .htaccess file and suddenly causes porn images to appear on entity A's web page.


But beyond that, if the photographer who licensed to entity A wants to prohibit hotlinking he should write specify that entity A must block hotlinking of images hosted on A's server. This is easy for entity A to do. In that case, entity B will be unable to hotlink because the ability will be blocked. If entity A fails to prevent hotlinking that will be a tort between the photographer and entity A.  I don't know whether the issue will be a copyright violation or a breech of contract, but it will be entity A doing something that the license did not grant them.   It is not a matter between the photographer and entity B.  Moreover, if the photographer wants to prevent B from hotlinking, he can contact entity A and demand they change their code to prevent the display at "B" and the images will vanish from B, "poof". 

Mind you: if the photographer insists A disable hotlinking, A may become unwilling to license the photographers photos. Because it just may well be that one of the reasons A runs photos is precisely because they find that people who hotlink sometimes create traffic for A.  So the issue could work out precisely the opposite way from what you assume. (In fact, I suspect this is likely. Because if the New York Times didn't want people to hotlink, they could disable hotlinking. They don't. )

Oh and yes, I'm well aware of the 9th Circuit's opinion in Perfect 10 vs. Amazon... but that dealt with thumbnail-sized images. What I'm talking about here is an attempt at circumvention of copyrights in an effort to use full-sized images on websites without paying for them.

The size was totally irrelevant to the hotlinking issue.  Size did matter with respect to cached images, but those were actually copied, not hot linked. Size did not matter in  hotlinking.

Also: Read Flava. They hotlinked entire movies. Full. Size.

It appears that "hotlinking" to images doesn't (or hasn't) happened on a sufficiently large enough scale from any single infringer to make the matter viable for pursuit through the courts to the appropriate level to once and for all get a definitive answer.

What are you talking about?  Google's hotlinked and continues to hotlink many full size images. They did so with Perfect 10. MyVidster inline linked (aka hotlinked but for movies) whole movies. Perfect 10 pursued in one case. Flava in another. 

[lucia]

Of course, I agree with Lucia.

My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".

Sure. I agree Getty accusing someone of infringement is not a crime. People accuse other people of things all the time.

[Jerry Witt (mcfilms)]

Of course, I agree with Lucia.

My assertion is simply that Getty may legally accuse somebody of copyright infringement.
That's not a "crime" or "extortion".

In fact companies and people accuse each other of legal transgressions every day.
Somebody's always right, and somebody's always wrong.  But, the accusation itself isn't a "crime", or "fraud".

Now, if some actual material facts were misrepresented, somebody paid, that person could prove such, AND they didn't sign a confidentiality agreement, they MIGHT have a case against Getty.

...and yes, I know where this is going... and it's a waste of everybody's time.

S.G.

I don't think anyone has brought this up before. But what about a class action suit.


HAHAHAHAA! (Sorry S.G., I couldn't resist.)