Getty in the UK

[Peeved]

Hi Soylent Green

In one of my first posts on this site I said that I wouldn't have a forum on the UK site because things start going round in circles and posters start abusing each other.

I think that you have just proved my point!

I have a point of view which maybe correct or incorrect. The same applies to you. It is not made up and whilst what you say about evidence being available pre-trial is absolutely correct I think we do need to speculate about what Getty might do and try and defend against it. Its called good planning.

By the way I love the photo of you in your hat - very cute!

Personally, I'm all for "good planning" however, I feel that a GOOD plan is to get your ducks in a row and do your homework. I feel a good plan is to never hand over information which may incriminate you down the road to your accusers. There is a HUGE difference between "denial" and "omission" with regard to response letters.

In doing homework, you will have a better idea of where you stand which will better prepare you in the unlikey event that your case goes to court. In doing homework, You will know when it is in your best interest to make an actual offer. In doing homework, you will know all about why your case is unlikely to go to court. In doing homework, you should be able to find out just how many actual U.K. Getty cases have gone to court.

[Matthew Chan]

I agree with this sentiment and everyone needs to calm down.  If not, then I start editing and/or deleting messages.  (See Nick? That is how it's done to get everyone civil again. If things don't get civil quickly then messages start disappearing.)

For the record, I welcome Nick to the conversation. He is entitled to have his opinion. We don't have to agree 100% to get along. It would be nice to have a consensus but there are some things we will have to disagree on.  I personally think there are cultural differences that might influence how to approach a similar situation in the UK. I don't even feel comfortable discussing how Canadians should approach it even though they are U.S. neighbors. I just stick to what I feel confident with, U.S. matters.

Let me say that I have exchanged emails with Nick behind the scenes and I believe he is trying to do good. We are exploring possibilities. He is certainly volunteering his time and even stepped out using his full name. His one of only a handful people in the world that would dare sign his name to his opinion. For that, he gets my respect.

I think Nick coming over introducing himself has been great. It is really the second time where an effort has been made to cross the Atlantic divide.  The last time this happened was when Oscar and I tried in 2008-2009 when we participated in the FSB forums. I was known as user: us-crusader at that time.

Ultimately, every letter recipient has to make their own decisions.  The one thing I will not necessarily engage in (at this time) are matters in Europe. I simply don't know enough to make an informed opinion.  I have opinions but I would not consider them informed yet.

In one of my first posts on this site I said that I wouldn't have a forum on the UK site because things start going round in circles and posters start abusing each other.

I think that you have just proved my point!

I have a point of view which maybe correct or incorrect. The same applies to you. It is not made up and whilst what you say about evidence being available pre-trial is absolutely correct I think we do need to speculate about what Getty might do and try and defend against it. Its called good planning.

By the way I love the photo of you in your hat - very cute!

[SoylentGreen]

"I ain't even mad". (^_^)!!

S.G.

[Matthew Chan]

Khan,

The major sentiment I wanted to directly acknowledge is the extreme idea of "making them work all the way" and "denying everything".  However, that doesn't mean you lay down and sign an open confession revealing everything you have either. That is plain crazy.

I used a very basic example on the screen shoot they provide. That is the first issue to deal with, outside of all the other talking points like proof of good copyright registration. For me, if the screen shot image is pretty clear of my web page (as most are that I have seen), I have the choice to "give" that to the opposing side or not. I know some people think that admitting to it could be a "smoking gun". I don't.  I would only fight that front if the images looked crappy, altered, or believe there was some hanky-panky involved.

Remember, with all this talk of fighting back, how many are truly going to self-represent?  How many would hire a lawyer?  How many would take a default judgment?  I think the majority of people would NOT self-represent.  I think there are more people than you might realize take a default judgment for the reasons they cannot afford a lawyer to see this thing through or they don't feel confident enough to self-represent.

I know many want to restrict this conversation to the legal arguments but there is simply more to it than that.  In court, judges can have bad days. They have different personalities.  There are all kinds of things that can unexpectedly happen in court. Some can work in your favor, some can work against you.  I am very mindful of the human element.

I used to be a big believer in arguing ONLY on the facts and the legal argument. Not so much anymore when I realized that courts and judges are not immune to human feelings, personal bias, and failings.  If you don't believe that exists, go look to the Righthaven lawsuits.  If people think the Righthaven lawsuits were won solely on sheer merits of the objective legal arguments, then it show they are not seeing a bigger picture.  All the hatred, animosity, and the blatant extortion tactics, cause people to FIND the legal arguments to justify it.

All I am saying is that taking an Affirmative Defense position is a valid position. It can be as simple as saying, "Yes, that is my screen shot BUT...."(The"yes" part is the "affirmative" part.  the "BUT: is the defense part.  Hence, it is called "affirmative defense". Nothing more, nothing less.

From a legal fee point of view, it will save a TON of money in legal fees by including a couple of "YES" along the way. But if money and time is no object, then by all means fight every step of the way. For me, there is a delicate balance and strategy of winning.

For some, "winning" means pay zippo.  For others, it means paying only a reasonable amount, not the extortionate amount.  For some, it means absolution through a court ruling.  I am a practical guy. There are varying degrees of winning for me.

What I just said probably doesn't directly answer your question because I am trying to explain the concept and merits of Affirmative Defense.

I don't know everyone's individual cases so I am not going to make a sweeping statement what EVERYONE should do in ALL situations.  I only have guidelines. But certainly, there are guidelines of what to ask for which has been listed and discussed many times and then some.  The discovery stage of a lawsuit is where you can ask for anything you feel you need to defend your case.

In reading what you wrote as a response that you admit to nothing and only asked for information, I can understand that approach.  I am fine with it. It is more congruent and effective if it reflects your true personality. You don't have to copy any one approach to be effective.  Everyone knows their situation the best.  For me in my situation, I simply offered up an apology for the accidental infringement and why it happened. I simply didn't see it as a smoking gun simply because I claimed innocent infringement and felt like I had a lot to back that up.  As it happens to be the case, I would have gladly settled if a reasonable amount ($200 ball-parkish) was offered but it wasn't. The $500 was their offer and I found that unacceptable.

I do believe there is room for variations of approaches to successfully fight back.

Dear Matthew
Just to understand you correctly: Do you suggest that if you can get the pictures elsewhere (and you have the proof) to go for the affirmative defense. I think then they have no case even if you got the picture from the internet.
In my case I have the proof that I can buy the photo directly from the photographer (and I bought it afterwards just because to proof I can buy it somewhere else). Why not asking Getty to show their exclusive contract?
In my response I did not say anything about an infringement and did not admit to anything. I just asked for proof since I have got other evidence.
Sorry to insist. Thank you very much for your help
Khan

P.S.

[Jerry Witt (mcfilms)]

First, welcome to the forum Nick. I think it's great to have someone from the other side of the pond that is doing something similar to what's being done at ELI. I just now got caught up on the thread.

I just want to respond to the heart of the issue which involves tweaking #2 on your letter and admitting anything having to do with how and where you obtained this image. Although I agree 100% with Matt that in front of a judge it would be imperative to be honest, I see no advantage to spelling this out for your adversary.

That's an important word. Adversary. These people aren't your buddies. They are not your business associates. In fact they have proven time and time again that they have NO interest in converting you to a customer. The moment they decided to calculate a rather large price tag and wrap it up in a threat of legal action, they became your adversary. Their is absolutely no advantage to be had in trying to generate goodwill with them. Really, from the moment you receive a letter your job is to make things as challenging as possible for them.

Admitting you took the image from whatever source does not do this. In fact it does the opposite of this.

In my opinion you need to run parallel lines of defense in dealing with GI / MF / HAN. You need to make it abundantly clear that you are going to make this as difficult and as time consuming and as painful for them as you possibly can. You have to make it clear that you are willing to take it to the mat if need be. But on the other hand, you need to be in a position that should this go in front of a judge, you can make the case that you tried very hard to make sure they owned the image, that they had the right to threaten you and then, if that were the case, come up with a fair settlement.

Again, there is a time and place for everything. But any admission of culpability or mistake seems like it should be waaaay down the road.

[SoylentGreen]

I have to agree with your post McFilms.

I'm not sure what the productive purpose "admitting guilt" has, or automatically assuming that Getty has some sort of "legal standing" without checking into it.
It's probably faster to just write them a cheque.

S.G.

[Khan]

Dear Matthew
Thank you very much for your answer. I think I understand what you want to say. The human element is often unpredictable and being authentic is essential.
Thank you very much
Khan

[rock]

I disagree with Matthew about admitting guilt if a screenshot is provided by picscout. The date of the infringement is also important. In the Advernet case, all 35 images were lacking the date of infringement, and picscout did not provide that. In the past, Picscout was also SLOPPY about it. (I am sure they will fix this now)

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/challenging-picscout!-challenging-picscout!/

[lucia]

Rock--
I don't think the Advernet case involved any dispute over whether the images were displayed.  I think the Matt's recommendations mesh well with advernet. In that case, the images were displayed. There was no dispute over whether they were displayed. The dispute was over whether the plaintiff had copyright's in place and whether they had exclusive licenses.

I tend to agree with Matt that if the images were displayed, Getty has an image showing they displayed, you need to recognize that in court someone is going to ask you flat out if the images were displayed. If you don't plan to perjure yourself (and risk jail by doing so),  your defense is going to have to be based on the other factors. So it's wiser better to admit the images were displayed and then focus your discussion on the other factors. 

This isn't the same as saying you need to volunteer any information in your initial letters to Getty. But if the image was displayed and you know it was displayed, you'd darn well better plan on a defense that concedes they were displayed.

[rock]

Advernet was also about establishing the date of infringement. The judge challenged Picscout. THE JUDGE CHALLENGED THE WITNESS.
The date of uploading the file from picscout is NOT the date of infringement; if you can not establish the date, it can be more than 3 years, then you are not guilty, this is what the judge established. Picscout were SLOPPY about that.

NEVER LIE, and at the same time do not admit guilt.

[Matthew Chan]

Excuse me, I did not say to "admit guilt". Please do not misquote me. Affirmative defense does not mean "admitting guilt". If that is how people take it after everything I wrote, then it will take a much better man than me to explain the finer distinctions. Might I suggest people do some Google research on the phrase "affirmative defense".

Might I also suggest everyone on this forum read the defendant's answer to the Getty Images vs. Advernet complaint written by none other than our own Oscar Michelen who clearly listed SIX affirmative defenses.

http://www.scribd.com/doc/81920716/Getty-Images-vs-Advernet-Answer

They were so succinct and well-written, I can reprint those here.

1. While the allegation of unauthorized use is denied, any unauthorized use was inadvertent and innocent and did not constitute willful infringement.

2. Some of the plaintiff's claims are barred from the applicable statute of limitation.

3. While the allegation of unauthorized use is denied, any unauthorized use was de minimus and should not result in a damages award.

4. While the allegation of unauthorized use is denied, any unauthorized use occurred prior to any registration of the images so that plaintiff many only seek damages.

5. The images may have been available through means other than plaintiff's website.

6. The plaintiff's claims for relief was barred under the doctrine of laches.

Essentially, the defendant did not deny use of the 35 images on the website in question. What was denied that the use was "unauthorized". I know Oscar is only one lawyer amongst thousands. Some of you might say that Oscar should NOT have even admitted to use at all!  I am very certain that Oscar thought of this but felt that it was NOT the correct course of action. He advised (and the defendant agreed) to admit to use of the images but simultaneously making affirmative defense challenges.

I would like to point out that on page 37 in the Memorandum and Order, even absent the presence of the  defendant and defendant's attorney, the court, in particular cited affirmative defense #2, was "potentially meritorious". It is a specific and positive acknowledgment of one of the affirmative defenses.

So, people can feel free to disagree. I not only draw my own conclusions from this specific case but in my own real-life court experiences that you can still very much "win" with affirmative defenses. I still contend that in many (not all) circumstances and situations NOT using an affirmative defense and simply DENYING everything can ultimately hurt you, your case, and your credibility.

I disagree with Matthew about admitting guilt if a screenshot is provided by picscout. The date of the infringement is also important. In the Advernet case, all 35 images were lacking the date of infringement, and picscout did not provide that. In the past, Picscout was also SLOPPY about it. (I am sure they will fix this now)

[rock]

My appologies, well written, Thank you

[nixlyn1]

Hi Guys

Been away on business and so not had a chance to log in but just had a quick look.

A couple of points;

1, Admitting that you used the images on your site is not the same thing as pleading guilty.

2, Making an open offer to GI subject to them proving they have the right to ask for money is not pleading guilty. In the UK if they do not respond to your open offer it will be relayed in court and can be used against them!

Since I last logged there has been a new development in the UK. A new court division called  the Patents County Court has seeming been agreed. Starting from October 2012 this will streamline the the cases involving copyright infringement and prove a lot less costly for Getty and the others to take people to court. Incidentally, I am not telling you anything that Getty do not know. Some of their UK solicitors are already threatening to use this.

Obviously, people can make up their own minds but it does mean that people who ignore the letter will be at much greater risk.

I understand that many of you do not agree with me about the whole admission of images thing but I think that in some ways it is a question of semantics i.e. They usually have evidence of the images on your site but as we know they have to prove they have the rights etc. The inadvertent use of copyright images is the key in a UK court. In my view and from my experience it is wise not to deny the obvious!

I will post more about this new court soon when I have details.

Before someone jumps in to say Getty will still be frightened of losing and setting precedent my understanding is that due to the low cost nature of the process and the numbers of people who are ignoring the letters this could still be a problem.

In the Uk courts they will still look at the facts of each individual case and a total lack of action will hurt the defence.

This is my opinion!

[Matthew Chan]

This is the reason why I don't dare start talking too much about UK matters. I may have opinions but I freely admit that my opinions outside my stated areas of expertise are UNINFORMED opinions.

Not being tied in or living in the UK, it is very difficult to get a pulse on what is going on there.  The Patents County Court sounds conceptually similar to the idea of a small claims copyright court I have heard kicked around here in the U.S. That can be both good and bad.

I, for one, intend on being a sponge and plan on doing a lot of listening and not make any rash assumptions that the UK system will operate or evolve similarly to U.S. developments.

So keep the insights and reports coming is what I say....

Feel free to start another UK thread, if necessary, to accommodate new UK-related discussions.

Since I last logged there has been a new development in the UK. A new court division called  the Patents County Court has seeming been agreed. Starting from October 2012 this will streamline the the cases involving copyright infringement and prove a lot less costly for Getty and the others to take people to court. Incidentally, I am not telling you anything that Getty do not know. Some of their UK solicitors are already threatening to use this.

I understand that many of you do not agree with me about the whole admission of images thing but I think that in some ways it is a question of semantics i.e. They usually have evidence of the images on your site but as we know they have to prove they have the rights etc. The inadvertent use of copyright images is the key in a UK court. In my view and from my experience it is wise not to deny the obvious!

Before someone jumps in to say Getty will still be frightened of losing and setting precedent my understanding is that due to the low cost nature of the process and the numbers of people who are ignoring the letters this could still be a problem.

In the Uk courts they will still look at the facts of each individual case and a total lack of action will hurt the defence.

[Khan]

I do not know if my information is correct:

It appears that their is a limit of £ 500,-- (excl. Interest etc). If you look at the settlement demand notes most of them will exceed this limit. http://en.wikipedia.org/wiki/Patents_County_Court

I do not know if it makes sense for Getty to go to court for this small amount of money.