Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

[Matthew Chan]

Hawaiian Art Network has recruited a new law firm to do their collection work. It looks to be yet another Vincent K. Tylor image infringement (big surprise here.)

http://www.scribd.com/doc/92901413/Conrad-Scherer-Settlement-Demand-Letter-for-Hawaiian-Art-Network

$8,000 for 1 image. Standard price for a HAN extortion letter. We now don't get shocked over this unless it is over $10,000 per image.

Florida Attorneys Jeffrey L. Kominsky & Ivan Kopas of Conrad-Scherer law firm are the ones sending "extortion" letters on behalf of Hawaiian Art Network. I have never seen an "extortion letter" naming two attorneys in the signature line.

It should be interesting to watch how this big law firm operates vs. the small-time collection lawyers we have seen. There is a big list of lawyers here.  Many of them look like they are 35 or younger. You know what that means.....

http://conradscherer.com/attorneys.asp

[Robert Krausankas (BuddhaPi)]

Once again I see they have a long list of "Practice Areas"
Personal Injury, General Liability, Labor and Employment Law, Medical Malpractice & Health Law, Maritime Law, Civil Rights Litigation, Marital and Family Law, International Law, Appellate Practice.

Might as well add Intellectual property to the list of items to "Practice", after all practice makes perfect and you have to start somewhere..

Mr. Kominsky practices civil litigation, focusing upon commercial litigation and general liability....hmmm does copyright infringement fall under "commercial litigation"? Just say'in

ahhh, heres the answer!
Mr. Kopas' primary areas of practice are Commercial Litigation, Telecommunications Litigation and Intellectual Property Litigation. In his Intellectual Property practice, Mr. Kopas has served as trial attorney in complex trademark infringement, false advertising and copyright infringement cases....

but the real kicker is this:

As a former record producer and songwriter for numerous national and independent record companies and recording artists, Mr. Kopas' experience gives him a unique perspective on the intellectual property rights of his clients.

I wonder how proud Nova Southeastern University would be, knowing one of their own has resorted to twisting and abusing the legal system, to put a few dollars in his pocket
I also wonder if he knows Brandon Sand from the music and entertainment business

[Moe Hacken]

The attorneys seem well groomed. Their website has an air of professionalism. Nice portrait photography.

It must be noted that the attorneys also use stock photography on their website. On the home page, there's an image of a crane seen through a window as part of a Flash slideshow. That image of the crane can be matched with over 50 different websites, mostly concerned with construction and real estate. It has different filenames all over the place. One only need to use Google advanced search, no need for PicScout or TinEye. Those may even find more matches, among them the proper copyright owner of the image.

Surely they have the receipts and licenses for all of those on file and at hand in case anyone asks to see them on demand. They wouldn't want to expose themselves to an $8,000 claim.

[Moe Hacken]

Update on Conrad & Scherer stock photo inventory: the home page image slider features a picture of two very well-groomed individuals in suits. That particular image was matched 280 times or so by Google advanced search. I'm trying to find where they sell that.

At the bottom of the page, Google offers a category titled "similar images". One of them really got my attention. It may be the first sighting of copyright trolls in South Florida:

http://www.northeastofnorth.com/wp-content/gallery/neon-10/NEoN10%20pics%20005.jpg

You can't make this stuff up.

[Robert Krausankas (BuddhaPi)]

As a side note, they have multiple locations as well...


Conrad & Scherer

 Conrad-Scherer Attorney's At LAw

Fort Lauderdale, FL
633 South Federal Highway
Eighth Floor
Fort Lauderdale, Florida 33301
P: 954-462-5500
F: 954-463-9244

Washington, DC
1156 15th St. NW
Suite 502
Washington, DC 20005
P: 202-543-4001
F: 866-803-1125

[Moe Hacken]

Well, the crane is from iStockphoto.com:

http://www.istockphoto.com/stock-photo-4408099-construction-site.php

The well-groomed attorneys are from Getty:

http://www.gettyimages.com/detail/photo/two-men-standing-by-columns-talking-one-man-holding-royalty-free-image/dv078064b

The boats are alos from iStockphoto:

http://www.istockphoto.com/stock-photo-112032-sportsfishing-boats-at-sunset.php

Just checking.

[Robert Krausankas (BuddhaPi)]

I happen to know a nifty little trick that will send Picsout running thru ther hosting acount, searching out images and sucking up bandwidth...that would besomething if they themselve got a letter from Istock aka Getty images for copyright infringement..

[Moe Hacken]

Buddhapi, I'm thinking that may have happened already or may happen at some point. I wonder if someone's scrambling for receipts and licenses as we speak. Maybe they get stock photos as an advance for their services. They don't call it a comp for nothing.

[Robert Krausankas (BuddhaPi)]

Well you may be right, and I can just about guarantee that picscout is pounding their server as I type this..tomorrow I'll see what I can dig up on the newest copyright trolls Jeffrey Kominsky & Ivan Kopas that are trying to extort money from unsuspecting victims..

[adam]

This is the same firm that I am having the issue with.. Letter was first week of May.

[lucia]

To be fair, the letter does advise the recipient to seek  legal counsel.

Of course, as is the norm in these things, it assume guilt on all possible allegations. For example: We know that the absence of the authors copyright information probably does not indicate the removal by the website owner. Typically the 3rd party site offering the image for "free" does that.

We also know the actual minimum fine is $200 which the judge can grant if he accepts the argument that the person who used the image thought his use was not infringing because he thought he had a license. People can argue about what is 'reasonable' or 'reckless' or what have you, but many can and do believe their use is licensed because the site offering the image suggested so by advertising it for "free".  (This is not, btw, an argument about latches. But rather an argument about 'willful' and whether the user thought it was licensed.)

[DavidVGoliath]

With respect to claiming "innocent" infringement as a defence; it appears that the case precedence regarding this was set out in Steven Greenberg Photo. v. Matt Garrett's; quoting specifically

The "innocent infringer" defense under § 405 only applies to "authorized cop[ies] ... from which the copyright notice has been omitted and which [were] publicly distributed by authority of the copyright owner ..." § 405(b) (emphasis added).

Section 405(c) emphasizes this distinction:

(c) Removal of Notice.—Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords.

Now this precedent might have been superseded, being that the case was tried twenty-two years ago - but, in the event that it hasn't, my understanding of the above is that if a "wallpaper" or "free download" site was offering up images without the consent of the copyright holder (and perhaps even removing copyright notices and/or embedded data when doing so) then this voids any opportunity to claim innocent infringement as a defence.

And yes, I know that there is the suspicion that VKT and/or HAN knowingly made their works available to such sites; personally, I wouldn't know where to start on attempting to prove that (which is not to say that proving such consent or direct uploading is not possible... I just don't know how that would be achieved)

[DavidVGoliath]

From webshots.com's own Terms of Service

"Subject to these Terms and our Privacy Policy, you are granted a limited license to display, and use the functionality, materials, features, and services provided by the Site and App for your personal, non-commercial use as follows: you may download images available on the Desktop App for use as a screensaver/wallpaper for your computer and you may download images available on the Mobile App for use as mobile wallpaper. The photos are licensed from professional photographers and stock agencies to be downloaded as wallpaper or screensavers. You do not have the right to extract or print these images and Webshots does not authorize their use elsewhere. You may not use them in websites, presentations, slideshows or printed materials. You may not use, store, display, publish, transmit, distribute, modify, reproduce, create derivative works of, participate in the transfer or sale of, publicly perform, or in any way exploit any of this Content, in whole or in part, outside of the specific usage rights granted to you by Webshots as part of the services we provide. Those committing copyright violations may be subject to direct legal action by the copyright owners. We are unable to license Webshots images to third parties; if you would like to use any of the images, you will need to contact the photographer or stock agency directly"

Granted, I don't know what their terms were back in 2005 - but the above is fairly clear with regards to their current content.

[lucia]

The "innocent infringer" defense under § 405 only applies to "authorized cop[ies] ... from which the copyright notice has been omitted and which [were] publicly distributed by authority of the copyright owner ..." § 405(b) (emphasis added).

Yes. But the "innocent infringer" defense under § 405 is the one where the 'infringer' pays absolutely $0.


 I was discussing the different infringer issue which is finding they did infringe but were unaware and had reason to believe they were not infringing.  lowering the fine to $200.


Here's the difference. In 405, we read:

(b) Effect of Omission on Innocent Infringers.— Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court.
(c) Removal of Notice.— Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords.

So this is where the infringer pays nothing: i.e. "no liability" under 504

Now turning to 504:
http://www.law.cornell.edu/uscode/text/17/504

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—

Note: 504 will apply 'Except as otherwise provided by this title'. So: 405 was 'otherwise'.  And -- of course-- if the defendant could prove the exception under 405, we ignore 504. (But I don't think that's going to happen. ) 

Now, let's look at the what we might call the 'unaware infringer'  in 504

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:

This is not the exception under 405, it's in 504 itself.  The ruling on 405 doesn't apply here-- the only issues seem to be whether (a) the infringer was not aware and (b) had no reason to believe. If both apply, the judge can knock the damages down to $200.  The defendant might be happier with $0, but that's not going to happen.

(BTW: I have no idea what precedents are here. It's just this is not the 405 language and I wasn't referring to that concept.)

[lucia]

DavidVGoliath,
To be clear, I don't think anyone is suggesting that VKT will be awarded nothing if the trial goes forward. The issue is whether the award will be closer to $200 or $150,000+ attorney's feed or even in the vicinity of what he asked for in early settlement negotiations.  So the question is how the facts of the case interact with precedents. We don't know all the facts-- even Peggy doesn't. But we do have access to some evidence which would likely be presented in court.