Free Baitpapers

[SoylentGreen]

Whether or not Tylor deliberately seeded his photos is unknown.
I think that PicScout would have picked up on Tylor's images on the wallpaper sites by now.
So, it's reasonable to assume that he's aware that his photos are been offered as "free".

The story of how they got on the free wallpaper sites might be interesting.
But the fact that they're offered for free on those sites, and remain there as "free" is the most important aspect of the story.

If I was taken to task for infringing on Tylor/H.A.N. photos, I'd demand to see paperwork to prove that they're making meaningful efforts to curtail these images being marketed as free.
I'd want this as part of the discovery process to assess the actual market value of these images.

If it's distributed as "free" anywhere, then it's surely not "premium rights managed content".
No rights are managed if the images are a free download.

How many sites do these photos have to be on before we say, "this is deliberate", or "he's doing nothing about it because it entices people to infringe intentionally"?

S.G.

[Robert Krausankas (BuddhaPi)]

Furthermore if HAN and Tylor do know about these free sites, why are going after the small fish for having downloaded 1 or 2 images, when they could sets their sites on the wall paper sites, some of which have many of his images posted, wouldn't that be a better revenue stream for them? I would think so..but then again by targeting small mom + pop outfits with the fear factor, they probably get better results with people just flopping over and writing checks..

and I still question why none of the other photographers associated with HAN seem to have this "problem", maybe they are not seeding or uploading to webshots....

SG has some very good points, show me where it is documented that you are doing everything in your power to have the "free" images removed, cause if they aren't then they are just part of the problem and guilty by association...just my 2 cents worth...

[lucia]

Whether or not Tylor deliberately seeded his photos is unknown.
I think that PicScout would have picked up on Tylor's images on the wallpaper sites by now.
So, it's reasonable to assume that he's aware that his photos are been offered as "free".

Maybe. Oddly enough, the video someone posted discussing how picscout operates suggests they might miss images if they are hosted in countries with weak copyright laws.  Lots of the free wallpaper sites have addresses ending in things like ".ru", and checking domain tools indicates that many are hosted outside the US, Europe etc.  So, picscout may not pick these up. 

But I think what picscout might or might not find is irrelevant.

If I were on a jury, I would  judge it highly implausible that HAN or Tylor have not known these images are massively reproduced at wallpaper sites. After all, given that they've sent out letters, it's not widely implausible that either HAN or Tylor has avoided looking for his images at google.  In fact, if they claimed not to know they images were widely copied, I would consider this evidence that they were less than truthful.

The story of how they got on the free wallpaper sites might be interesting.
But the fact that they're offered for free on those sites, and remain there as "free" is the most important aspect of the story.

I agree that the fact that they remain free when it is impossible to believe that HAN and the photographer don't know they are there is  important. But I disagree that how the images got on the sites would be unimportant if this were presented in a trial or if these were presented in newspapers stories. It's also not irrelevant to what lawmakers might ultimately do with respect to modifying copyright laws, which they do from time to time.

I suspect that the possibility the images are getting on wallpaper sites as a result of an active choice on the part of the photographer (i.e. he posts them on Webshots) and that HAN doesn't do much to prevent photographers from posting in venues that as a practical matter assure high resolution images will appear on these sites might weigh heavily against the photographer and HAN.  It might not matter in proving copyright violation, but maybe it would matter when assessing damages and awards.

If the latter is true, then it's useful for a defendant to identify a  path from photographer's site to free wallpaper sites. Because, otherwise, in discovery, the defendant or his lawyers would ask Tylor if he posted his images at free wallpaper sites. The answer would be no.  This would likely be the absolute truth. Then, they'd ask if he knows how they got there. He's say no. This might also be the truth. Technically, if they got there the way I think, he doesn't know how they go there. He might not even suspect how they go there!   Are those the only "facts" you want to present a jury or judge? I would think explaining how they likely go there would be useful in a civil trial.

If I was taken to task for infringing on Tylor/H.A.N. photos, I'd demand to see paperwork to prove that they're making meaningful efforts to curtail these images being marketed as free.
I'd want this as part of the discovery process to assess the actual market value of these images.

If it's distributed as "free" anywhere, then it's surely not "premium rights managed content".
No rights are managed if the images are a free download.

First: I see a couple problems here. I agree you should ask to see these things.  I would.

But if HAN takes you to court, the question isn't going to be whether you, SG, are satisfied with their paperwork. The question is going to be whether a judge or jury are satisfied.  So I think you need to put your devils advocate hat and think about how a third party who is not angry with HAN, getty etc would interpret  actual copyright  law.

I'm not a lawyer; I have no idea whether HAN or the photographer are required to try to prevent people in Russia (.ru) from running free wallpaper sites. 

I'm also not sure you are entirely right about the meaning of exclusive license. I think Joe can be granted the exclusive right to make prints for framing, Sheila can be granted the exclusive right to display on the web and Fred can be granted exclusive rights to print on clothing etc. If so, the fact that party A might have an exclusive right to make prints and party B might have the exclusive right to sell licenses to display images on the web.

Right now, it's still possible HAN has an exclusive right. We don't know. Mind you-- history suggests they might very well not have an exclusive right. But we don't actually know.

But I agree with you that I would want to read the license agreement to learn whether HAN has an exclusive right to license to display on the web and also to discover how much anyone paid to display these images on the web.  I have no idea whether HAN has an exclusive license to permit people to display on the web.  I strongly suspect no one has every paid anything for that right to display those Hawaii images and no one would pay anywhere near the amount HAN is demanding. 

I think HAN only sells prints  for a reason.  The likely reason is that the prints do have monetary value. Web display may have nearly none.

I'd also look to the fact that others not involved in the HAN suit-- Webshots-- sell downloaded images.

How many sites do these photos have to be on before we say, "this is deliberate", or "he's doing nothing about it because it entices people to infringe intentionally"?

S.G.

I don't know.  I'm not sure the numerical count is relevant. I'd look to other factors-- like the fact that he has made the decision to let Webshots permit digital downloads. While this is not the same as deciding to let people infringe intentionally, as a practical matter, it is very difficult for anyone to both profit by supplying wallpaper downloads for a fee and also profit by permitting exclusive licenses to display images. (That is: Unless the plan is to profit by suing those who display.)

Anyway, I don't disagree with you. If I were on a jury, given evidence showing the widespread copying, noticing not only that
a) neither HAN nor the photographer were taking steps to prevent high quality digital images from being promoted but
b)  the photographer was taking steps to make high resolution digital images available for download and
c) I saw how   vigilantly HAN and the photographer went after small infringers,

I would be inclined to take a dim view of HAN or the photographer. 

But that doesn't mean that I would deem failure to sue someone in Russia as a factor that puts the images in the open domain. So I would not automatically find no infringement if otherwise, there was evidence of infringement.  Instead, I might read the law to determine the minimum possible monetary penalty I could assess.  My impression is that in the event this particular image is registered, and it turns out HAN and the photographer has all their paper work in place (which they may not) and so on, the minimum will be $200 with no attorneys fee.  The demand letters highlight the maximum-- but courts can give the minimum. 

[lucia]

Furthermore if HAN and Tylor do know about these free sites, why are going after the small fish for having downloaded 1 or 2 images, when they could sets their sites on the wall paper sites, some of which have many of his images posted, wouldn't that be a better revenue stream for them? I would think so..but then again by targeting small mom + pop outfits with the fear factor, they probably get better results with people just flopping over and writing checks..

As a practical matter, many of the wallpaper sites are out of the reach of copyright law. Those with .ru domains, or even with .com domains but hosted in russia, poland, cz, china etc are going to be impossible to sue.

and I still question why none of the other photographers associated with HAN seem to have this "problem", maybe they are not seeding or uploading to webshots....

You could look. I suspect this will turn out to be the case.  I think if HAN wants to be legit, they should insist their artists not make extra on the side by uploading to Webshots.

SG has some very good points, show me where it is documented that you are doing everything in your power to have the "free" images removed, cause if they aren't then they are just part of the problem and guilty by association...just my 2 cents worth...

I think many judges would look kindly on the counter argument that you win or enforce a suit against the Chinese, koreans, or many of these other places. 

[Oscar Michelen]

Whether HAN or someone associated with HAN seeded the images, if HAN knew about their images being plastered all over free sites like this and did nothing to enforce their copyrights, while a court may still find that a user infringed, the damages awarded would likely go way down.  Courts can take into consideration whether a copyright holder has selectively enforced his rights or allowed his works to be used without reproach in determining how much to award. 

[SoylentGreen]

A good discussion, and many good points made.

I'd like to add that there is a discovery process.
The impression given by the trolls is that "we'll take you to court, but we don't have to reveal anything" is a falsehood.
There IS a discovery process.  Even if it's delayed until the mediation conference that's normally a last resort before a trial.
Both sides can also make requests for documentation of claims made, etc.

"I don't know" and "I can't do anything about it" simply means that the author has in effect lost "control" of copyrighted material.
Regardless of the country, the author should be able to show that he/she has at least sent cease and desist letters.
Even Russia and China have a legal system.  If the images are very valuable, the author should be able to show some efforts to stem the tide of infringements.
Going up against HAN, I'd have evidence of the dissemination of the content for free, all over the world.
If Tylor makes the claim, "I didn't know about it", score one for me... he looks negligent, or worse still compliant.
That's an extremely weak position to be in.

There needn't be a copyright infringement case decided or pending against one of the free wallpaper sites in order to use those facts against Tylor.
The fact they they exist is sufficient to make him look bad.

Actual court cases in last ten years show that the ones that have even minor weaknesses get dismissed.
The cases have to be pretty rock-solid in order for the plaintiff to prevail in a meaningful way.

I'm not angry with HAN or Getty, and have had no dealings with them, BTW.
My posts here are only to encourage people to fight.

I'm one of those people who can fight (and win) with one or two solid arguments.  That's all you really need.
I'm not normally dissuaded by not having every piece of the puzzle, or by being thrown off by an adversary's "plausible denial".
That's because the plaintiff has to reveal those pieces before using them in court, and a plausible denial just "proves" lack of knowledge or lack of evidence and those are worthless.
For example, Country Cycling could have won based on the fact that the contract with the photographer was never dated.
Copyright standing, the length of use, price and anything else probably wouldn't have made a difference.

I think that these sorts of things are normally decided by a judge who has some experience in the area.
I don't think that there's a jury of peers.  But, maybe Oscar can chime in if I'm mistaken.

S.G.

[lucia]

S.D.
Just so I know which people are which, are you an attorney? I'm not. I try to mention that.   Also, when you say you encourage people to fight: Are you someone who got a letter? I got a Getty Letter.    So, for my case, I think I need to weigh the potential up side and downside when  making decisions and I try to assume others who got letters need to do the same.

Even as a non-attorney, I agree with you that to prevail, the defendant only needs one important thing to be wrong with the plaintiffs claim.  But the big risk for a potential defendant is paying a good lawyer  to defend them is costly in actual money and doing all the work themselves is costs time and is risky because an inexperienced defendant is likely to overlook something important. 

Each letter recipient needs or wants to make some decisions before they are sued.   So everyone who gets a letter has to weigh all the "what ifs" pre-discovery. 

[lucia]

Oscar--
Thanks for jumping in!  If I understand correctly, you are saying all these appearances all over the world can affect the size of the award.  However, they are not factors in determining whether or not copyright occurred.  Am I correctly interpreting you?

[Robert Krausankas (BuddhaPi)]

I think thats what he is trying to say, yes it would / could lower any award amount, but copyright infringement could still have happened. I tend to think or hope anyway that most judges are reasonable and would use common sense in their final decisions.. Showing a judge one of these wallpaper sites that have a creative commons license attached ( and there is at least one that I've seen ) would likely deter a judge from finding that infringement did occur..at least thats how I see it, but I could be being overly optimistic..

[Lettered]

As a practical matter, many of the wallpaper sites are out of the reach of copyright law. Those with .ru domains, or even with .com domains but hosted in russia, poland, cz, china etc are going to be impossible to sue.

Looking at the sites listed in reply 28 above, most are registered with GODADDY, if I interpreted the whois search correctly.

from:

http://www.pixel2life.com/forums/index.php?/topic/20185-dmca-action-a-general-guide-to-taking-action-against-site-rippers-using-dmca-law/

"Step 4 - If you have still not received any action from either party, your final action is to try and get in touch with the Registrar. Send them a letter explaining your situation and be sure to attach your DMCA notice. Registrars like Godaddy will take immediate action, however smaller companies may prove difficult to work with."

Regarding people who have their copyrighted material showing up on GODADDY registered domains for lengthy periods, I have to wonder how hard (or if at all) they have tried to have it removed.

[Matthew Chan]

Correct me if I am wrong, but I find it very peculiar that for a photographer to have so much online presence, he has not made a public statement or commentary of any kind regarding the overwhelming presence his images appear to have.

If he were to come out and make a strong statement that these images so prevalent on the Internet was NOT authorized or seeded by him, I think it would help his case a lot. But his silence is both deafening and strange. 

I know we should not presume guilt on his part simply because of his silence but I cannot believe that he is unaware that he, his images, and the suspicions behind the wallpaper sites are actively being discussed.

If it were me, I would write an open comment or open letter for all to read.

[lucia]

Lettered--
Good catch! I stand corrected. I saw all the .ru and .pl etc. as I skimmed ,but I admit I never counted. GoDaddy? They should be enforcing that!

[Peeved]

S.D.
Just so I know which people are which, are you an attorney? I'm not. I try to mention that.   Also, when you say you encourage people to fight: Are you someone who got a letter? I got a Getty Letter.    So, for my case, I think I need to weigh the potential up side and downside when  making decisions and I try to assume others who got letters need to do the same.

Soylent states that he has had "no dealings with HAN or Getty".

I'm not angry with HAN or Getty, and have had no dealings with them, BTW.
My posts here are only to encourage people to fight.

He does however seem to have strong feelings regarding "Masterfile".

Trying to stop publication of these extortion letters and related issues are a waste of time on the part of the copyright trolls.
They have no power to suppress anything outside of a confidentiality agreement.
I am enjoying every bit of the butthurt though.

I found a photo of Geoffrey Beal "cooking up" some of the usual diarrhea spewed by the corporate septic tank that is "Masterfile".

S.G.

All discussions are appreciated here on a personal level. It is wise to weigh the scales on all levels. Also I find it wise to be prepared that in the case that you should become the "sacrificial lamb" and find yourself at the edge of the fiery volcano, you should be as fully prepared as possible. It has been pointed out by Soylent before that some will be sacrificed in order to keep the "fear factor" elevated.

Keep the lines open on all sides. This is a great discussion.

[lucia]

would likely deter a judge from finding that infringement did occur..at least that's how I see it, but I could be being overly optimistic..

Why would this affect the judge's judgement on whether or not infringement occurred? 

I'm asking. I make a rule of avoiding rhetorical questions on blogs and forums because they just result in confusion.  Also: I'm not a lawyer so I have no specific experience.  My impression has always been that generally speaking the judge would not consider the  infringements all over the place when assessing whether or not copyright violation occurred but would only affect the size of the award and the likelihood the judge would require the defendant to pay the plaintiffs court costs and attorney's fees.  (The exception where failure to enforce copyright might affect the judges determination of the fact of copyright might arise if the defense is the copying falls under fair use.   )   

[Lettered]

would likely deter a judge from finding that infringement did occur..at least that's how I see it, but I could be being overly optimistic..

Why would this affect the judge's judgement on whether or not infringement occurred? 

I'm asking. I make a rule of avoiding rhetorical questions on blogs and forums because they just result in confusion.  Also: I'm not a lawyer so I have no specific experience.  My impression has always been that generally speaking the judge would not consider the  infringements all over the place when assessing whether or not copyright violation occurred but would only affect the size of the award and the likelihood the judge would require the defendant to pay the plaintiffs court costs and attorney's fees.  (The exception where failure to enforce copyright might affect the judges determination of the fact of copyright might arise if the defense is the copying falls under fair use.   )

Lucia,

Perhaps the presence of the material on free wallpaper sites with the knowledge and inaction of the owner could be the foundation for an "implied license" defense (thus no infringement)? 

btw I'm not a lawyer either.

Field v. Google

http://scholar.google.com/scholar_case?case=15945714264866823005&q=field+v.+google&hl=en&as_sdt=2,5&as_vis=1

" Consent to use the copyrighted work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it."