Messages

91

Hawaiian Letters & Lawsuits Forum / Re: Vincent K Tylor strikes again

« on: June 24, 2014, 04:11:26 PM »

I had trouble posting this morning. I wanted to share a bit of response to the vtdigger site

she should read the 9th circuit decision regarding willful infringement and product and having to go to where the plaintiff has a business or resides or does business.

Do you mean she should read this:

"The Ninth Circuit’s model jury instructions on the law of willfulness define a willful infringement as one where the plaintiff proves the following two elements: “1. The defendant engaged in acts that infringed the copyright; and 2. the defendant knew that those acts infringed the copyright.” 

http://onellp.com/blog/ninth-circuit-jury-instructions-on-willful-copyright-infringement-need-updating/

If that's the 9th circuits definition of "willful" the defendants infringement is not willful and the judge and jury might knock the assessement down to $200. It's not even willful if we go to the stricter definition in the linked article-- because getting and from a site that is one of many tat advertises it as licensed for free is not 'reckless disregard' or 'willful blindness'. 

why were they able to find it still archived on her site 2 years later?

I'm guessing. But reading first: note that the image listed as (2) cases in VKT's complaint is really one image hosted at typepad.  It's very easy for a user to think they have deleted an image in a typepad post when they have not deleted it.  A typical user will select the image, click "delete" and believe they have deleted it.  As far as most Typepad users are aware, they have deleted. Unfortunately, Typepad programmers have organized things to be confusing:
See:
http://help.typepad.com/delete-manage-images.html

92

Hawaiian Letters & Lawsuits Forum / Re: Vincent K Tylor strikes again

« on: June 23, 2014, 12:23:38 PM »

Peggy: I will review the info you sent me Monday and get back to you asap. I also could not post a comment on the site btw

It turns out vtdigger requires commenters to include both first and last names. Their stated reason is that this makes things more civil. It's not clear to me that it would. Among other things, I don't know how they can check whether someone uses their real name.  But if you only wrote 'oscar', that could be an issue. (That said, you usually use your full name. So, who knows?)

93

Hawaiian Letters & Lawsuits Forum / Re: Vincent K Tylor strikes again

« on: June 21, 2014, 02:19:33 PM »

What does it take to be allowed to comment on vtdigger.com?  I left a comment that was factual and did not flame any party there.  It has not shown up, while others continue to post rude things one after another.

Same thing happened to me.  I posted descriptions of where VKT's images appear and so on.

94

Getty Images Letter Forum / Re: A college student, a Tumblr blog, and a Getty letter

« on: June 09, 2014, 10:49:07 AM »

Hello everyone,

I was given a letter about 11 months ago like many others on this (great!) forum. My circumstances were this: I previously had a Tumblr blog hosted on my own domain name—in hindsight, it was a dumb move to expose my contact info, but still. I "reblogged" a post containing the offending image, meaning that a copy of an existing blog post and its contents were pasted onto my personal blog.

By 'pasting' to you mean the material was hyperlinked? or you copied stuff to the server that hosts your blog?  If it's hyperlinked this is very easy: no copying (as defined by our copyright statutes) was done.  So no copyright violation.  Period. If the later, things can become more complicated.  Any comments below are for the 'more complicated' issue.

The Tumblr Terms of Service at http://www.tumblr.com/policy/en/terms-of-service under §6 says that this action of reblogging is accepted, and it assumes that the original poster—not me—has the necessary rights to post the image. I'm only operating on the rights that Tumblr has defined. Thus, either the original poster didn't have the original Getty license, or the poster did obtain proper licensing and thus my post should be protected under the Tumblr Terms of Service. (I'm sure there are legal flaws in this logic.)

First: This could be useful if you were sued and had to defend, but it would be more useful from an "innocent infringer" defense (there by minimizing liability.) If Getty is not requesting takedowns form Tumbler, this could also be useful as it would show Getty doesn't try to enforce the license against places that have lots of copying but only little guys. This might both sway the judge to think less kindly of them, but also you might argue their behavior 'amounts to" seeding. (It isn't seeding directly unless they had a hand in getting the stuff up. But really.. they should to after Tumblr if they go after little guys.)

Second: Unfortunately, Tumblr's TOS cannot protect you as a matter of law itself. Tumblr TOS would be an agreement between the person who uploaded and Tumbler. That cannot deprive a copyright holder of his right through any agreement between Tumblr and someone who is neither the copyright owner nor the owner's representative..

What's weirder and more confusing is that the standard cookie-cutter forms keep referencing me like I'm representing a company. I have emphasized the fact that I'm a college student with no organization, but—you could've guessed!—they don't care.

This is typical. Most typical: All letters will be heavy and intimating. Getty probably will not sue.

I received an email (no, not US mail!) trying to twist my aformentioned company (no, not me personally!) for money after no communication for about eight months. I have not negotiated pricing with them at all and, thanks to relying on the guidance of this forum, have avoided claiming any wrongdoing or any ownership of the image on my webservers.

My long-winded confusion is this: in the dynamic Tumblr blog setting run by a college student who is part of no company whatsoever... does anything change in terms of a rebuttal plan? And is flat-out ignoring the correspondence a reasonable idea?

I"m not entirely clear what happened.  Having your own domain name makes things more dicey than running it under a tumblr.com address.  The most legally relevant issues are:
1) Did you, through your actions create a copy that is stored on a server that you 'control' in the sense of being able to copy things to that server and delete stuff from that server. (Or, did you only create a hyperlink.)
2) Do you even know if you created a copy vs. a hyperlink. (Some people using Pinterest probably don't know. Intial pinning does make a copy; repinning does not. But I think with Tumblr, often a copy is created by the person using their tool.)

Whether you own the server is probably not so relevant.

The difference these questions make is basically: Are you more like someone who hotlinked? Or are you more like someone who actually copied. 'Tumblr' TOS and other things don't matter so much-- what matters is whether you copied. If you hotlinked: Getty would lose any suit they might file, and they have good enough sense to not file it (especially if they know you know they would lose.)


That said: even in the event you copied, it is unlikely Getty will actually come after you for one image on an obscure blog run by a college student. They generally don't.

Thanks for your input!

--
P.S.: Like I mentioned, I'm extremely glad to have found this forum. Nothing like a degrading, demoralizing process to help make an individual feel very low about himself... so my sincere thanks

95

Hawaiian Letters & Lawsuits Forum / Re: Vincent K Tylor strikes again

« on: June 04, 2014, 03:42:08 PM »

I was also wondering about getting the venue moved to Vermont.  I don't know anything about jurisdiction, but it seems odd for this to be heard in California.  It ought to be inconvenient for everyone all around.

96

Getty Images Letter Forum / Re: Getty Letter but Image was retrieved from Public agency Website

« on: May 05, 2014, 09:01:57 AM »

Getty Images has in their collection one of my Northern Spotted Owl photographs, an image that they have exclusive rights to for licensing and distribution. Getty has been known to aggressively go after unauthorized uses of photos they represent, and in fact under the terms of contract, even I cannot sell, license or otherwise distribute that image.

This sounds like the copyright owner does believe Getty has an exclusive contract and the copyright owner is abiding by it. (In the case where Getty sent me a takedown, there were numerous issues. One was that the copyright owner was clearly not interpreting the contract as exclusive and selling them on their own site. In fact, they were distributing the image for free. Which is... of course... how I came to hotlink it from a site that almost certainly interpreted "free image" to mean "free image"!)

Alas: The fact that the government uses something does not affect the copyright. Had the image been taken by a government employee during the course of employment, that would be different.

97

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA

« on: May 05, 2014, 08:42:03 AM »

I had someone approach me last week that wants to build a site to sell "knock off" watches, handbags and the like..they said these things are all over ebay, why can't you do it for me..

There's a simple reply to that: just tell them that there are two reasons you don't want to - 18 USC §2319 and 15 USC §1125 

With respect to trademark, some 'knockoffs'  in the sense of "sort of imitations" are ok-- provided the don't confuse the consumer or clearly trample on the mark. This happens in women's fashion all the time. On may, for example, create a bridal gown that looks awfully similar to the one worn by that Princess Kate woman during her wedding-- and could do so even if the designer of that dress 'trademarked' her brand.  What you couldn't do is use the 'trademark' to advertise that thing.

But generally, if it looks like it tramples trademark to Robert, I'd say it probably does. 

On the "it's on Ebay" issue: If that customer thinks  stuff similar to what he markets is listed on ebay and thinks that's ok,  he should set up an ebay store.  The fact is: ebay monitors for trademark infringements too. So he'll quickly discover that he'd need to tread carefully at ebay too. Ebay has all sorts of info on this issue:

http://pages.ebay.com/help/tp/vero-rights-owner.html
http://www.ebay.com/gds/Trademark-Infringement-My-Experience-with-it-/10000000002844578/g.html
http://www.ebay.com/gds/Selling-Trademark-Infringement-BE-AWARE-OF-THE-RULES-/10000000010376203/g.html

And so on. 

Do somethings slip through on ebay? Sure. Might some people have figured out how to slide by for a while? Likely. But
* ebay's rules don't permit trademark violation.
* ebay's will ban your account if they discover you are a repeat offender.
* the trademark owner will try to track you down and sue you if you infringe and they can find you. (Ebay will cooperate.)

I wouldn't be at all surprised if the guy who contacted Robert didn't already know that listing on Ebay was going to be difficult.  That might be his motive for trying to set up an local web page.

98

Getty Images Letter Forum / Re: I am a frustrated and sick to my stomach Canadian!! Help!!!!

« on: March 29, 2014, 09:36:30 PM »

3. If your agency contacts me again, you will be in violation of FDCPA and will be reported to the FTC and State Atty General office

That's USA, right?

99

Getty Images Letter Forum / Re: 9th Circuit Decision

« on: March 28, 2014, 03:51:34 PM »

I should add: the 9th court not deeming that registration covered the collection only and not the individual photos wouldn't have "invalidated" registration. It would have recognized the existence of a perfectly valid registration: that pertaining to the collection. So I don't really understand the argument about "invalidating".

100

Getty Images Letter Forum / Re: 9th Circuit Decision

« on: March 28, 2014, 03:49:42 PM »

Ya...some Jackwagon on Oscar's blog feels it's all about "invalidating the registration":

http://www.courtroomstrategy.com/2014/03/california-appeals-court-rules-in-favor-of-group-registration-of-copyrights-big-boon-to-mass-photo-agencies/#comments
A classic case of "willful infringement" if I ever saw one. I don't think any ELI contributor
felt sorry for these people when this case was first brought to attention. Yes, they did lose and lost big at 300K for statutory damages on two registered images as well as actual damages for non-registered images.

This brings me to the 9th Circuit decision. The "end users"/"customers" of Virtual Clinics a WEB DEVELOPING company, could also be subjected to LAWSUITS due to this company's negligence. Um...these people would be the "INNOCENT INFRINGERS" who would have no way of identifying a specific registered image in a BULK COMPILATION in order to try to protect themselves when it comes to "trusting" a company for hire such as in this case.

I agree with you. When I read the case, I thought that Virtual Clinics is the sort of defendant who ought to lose. They were in business developing websites. The websites they created subjected their clients who had hired them to create web sites to potential liability. We often image companies threatens who hired web developers-- so this was negligent on many levels.   So: yes Virtual Clinics deserved what they got.

Unfortunately, this seems to be a situation where "Hard cases make bad law". The fact that the 9th circuit doesn't consider who accepting this form of registration would affect clients of Virtual Clinics had the stock company chosen to sue them is unfortunate.  And for those clients-- who really would be innocent and non willful-- and for all those who might potentially receive threatening letters suggesting levies could be as high as in this case-- this case will create a large problem.

101

Getty Images Letter Forum / Re: An Experiment Against Getty

« on: March 14, 2014, 06:06:15 PM »

Will the CD's permit text recognition?

102

Getty Images Letter Forum / Re: Stupid spammer request regarding CopyrightTrollinfo.com

« on: March 14, 2014, 04:18:13 PM »

At least add nofollow to the link you gave him in your forum post!

103

Getty Images Letter Forum / Re: Big Change at Getty -- Free Use

« on: March 08, 2014, 06:14:07 PM »

I didn't see any monetary penalties for violating TOS. Also, unlike copyright, there are no specific statutory penalties. So it's not clear Getty could do much beyond decreeing you can't use their embed tool anymore and/or prevent your domain from hotlinking.

104

Getty Images Letter Forum / Re: Big Change at Getty -- Free Use

« on: March 07, 2014, 02:21:53 PM »

It was just one of those things were someone said "what do those look like?" So, I found an image and hotlinked.

105

Getty Images Letter Forum / Re: An Experiment Against Getty

« on: March 07, 2014, 08:00:40 AM »

f all complaints filed against McCormack IP Law of Seattle Washington (all complaints please) McCormack IP Law is based a

Maybe you need to say that "make mention of" in "include mention to" or something like that? Because they may be filed "against" Getty, with McCormack acting for Getty.