For what it's worth, Oscar frequently uses what they call an "affirmative defense" for his clients. I used an affirmative defense (through my own actions) in my case. Most people who respond to extortion letters (through their actions) use an affirmative defense.
From Wikipedia:
"in an affirmative defense, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense. [2] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability"
Just because you admit to infringement does not suddenly mean, you owe $150,000 and legal fees as the extortion lawyers might have you believe. You admit to one point and you move on.
Before I make my next statement, let me preface this by saying I have been to court several times and testified UNDER OATH in different cases. Let me tell you that if I was standing before a judge UNDER OATH, I am NOT going to stand there and fight the claim that the image was on my website when the screen shot makes it clear otherwise. The reason why is because judges and juries are human beings. They won't be as sympathetic to the person who is burning up the court's time over little matters such as proving your identity, your website, who did it, etc. If you fight these small points, it could be viewed as stone-walling which would paint you in a negative light once they get to the damages part.
It's difficult to credibly and simultaneously plead innocent infringement because your website developer made a mistake while you are standing there making the opposing side prove the screen shot may not be valid one at all. You also cannot "credibly" claim copyright registration issues, market value, and all the other talking points that have been brought up over the years on these forums without "giving to the other side" that the image in question was on your website to begin with. It makes no sense, defies common sense, and lacks credibility.
I very much understand the notion of "making them fight every step of the way and not give them anything." Believe me, I do. But as a practical matter, you may hurt your case more than help it if you don't view it in the larger context. There comes a point where it defies common sense. You simply anger everyone (including the judge and jury) by burning up everyone's time over a small point. If you hired a lawyer, do you really want to spend an expensive hour of his time trying to disprove the image was on your website at all when the screen shot has been provided? I suppose if you have a strong case where the screen shot was blurred and unclear, you can make a case for it. But most screen shots I have seen, it would be difficult to do so. Remember, if you are a defendant, there is a good chance you will have to testify under oath.
Last year I received a notice in the mail to pay $4 for running a toll in Florida. However, the problem was I was nowhere near Florida at the time the night image was captured of my supposed license plate. I looked at the image very hard, blew it up, and everything I could to see it. I looked at the rear fender and the trunk surrounding the license plate and compared it to the rear view of my own car. They did not match. I called the agency and told them I was not in Florida at the time the image was captured, the image was unclear, and the rear view didn't match my car. The woman admitted the image seemed unclear and it was dark. She consulted with a co-worker and concluded that they agreed with me. They sent the toll notice to the wrong owner of the registration plate. I could have paid the $4 to make it go away but it really bugged me to do that since I knew it was not my car. There was an error in the system and I knew it. I stood up for myself and said it wasn't me. I was NOT exercising an affirmative defense. It wasn't me! I was rightfully denying the entire event.
So, there is a place for entire denial. However, is someone really going to, under oath, say "no, that screenshot is not my website"? I would say that most people won't and then you move to the mitigating circumstances, the affirmative defense, the circumstances surrounding the incident (innocent infringement), valid copyright registration, length of infringement, market value, actual damages, etc.
I would say that for most people, it will be difficult to deny to anyone (a judge for that matter) that the screen shot was NOT your website. You can fight that fight if you want but, in my view, that is a losing fight wasting time taking your credibility away.
Credibility absolutely matters in a courtroom. If you are in denial about EVERYTHING, without substantial evidence to the contrary, you lose credibility. Providing an affirmative defense is what Oscar often does for his clients to minimize the hit to the legal fees. He says, "Ok, my client admits infringed on these 2 images. Can we please move the argument forward to the damages portion?" I subscribe to an affirmative defense approach and that is mostly what I advise. Most people, including newbies, by their own actions use affirmative defenses (even though they are not familiar with the term).
An affirmative defense does not automatically mean they get any kind of meaningful damages. I know some of you will still disagree no matter what and that is your choice. You believe that they should work for every little piece but I would question how much practical experience you have in a courtroom under oath testifying for yourself or pay legal fees when the clock is running. I believe you have to pick and choose your battles here.
The moral of my story is, for most people, I recommend an affirmative defense. It will paint you in a more credible and sympathetic light.
Topic: Getty in the UK (Read 65840 times)