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Hello, I operate an adult community website. By community I mean that
its primary function is to allow like minded people to post "profiles"
and also upload images to be attached to these profiles for display.
Recently I received corospondance from a adult video company notifying
me that a number of copyrighted images (about 30) had been uploaded by
users in various places on my website. They requested the imediate
removal of these pictures (which we did within 15 minutes of being
notified), and then told us that they intended to file a federal
copyright suit for the sum of $150,000 dollars for "use" of their
pictures.
Point 1: They came to that figure based on the fact a copyright page
somewhere on their internet site listed the value of a picture at over
3000 dollars. Mind you that this picture wasn't necessarily obtained
from that site.
Point 2: Our site maintains profiles for over 100,000 people,
containing over 400,000 pictures which are updated quite often. There
is no physical way for these pictures to be checked manually. And even
if the human resources did exist, there would be NO way to actually
know that the image is copyrighted or that it belonged to this video
company; as the images are not watermarked and do not carry a
copyright statement on them.
Point 3: While I know this offers little protection, we have always
maintained a disclaimer to users uploading images that they must
either own them or have permission of the owner to upload them.
The corospondance from the video companies lawyer makes use of hot
button words like DCMA, etc... But what I need to know is:
1) Can they assign an arbitrary value to an image on their website,
and expect a judge to award that ammount when the defendant would have
no way of knowing this information.
2) Can they win a case where I was not the entity who posted the
image, and when there was no mark on the image to identify to its
copyrighted state? This would be equivalant to me ripping a photo out
of a magazine, pinning it up in a supermarket and having the
supermarket be sued for copyright infrigment.
They clam they are going to file this case in federal court, I can not
afford legal assistance (aka I'm broke), and I need to know if they
filed weither I would be able to represent my issues to the judge (and
if this could be done via postal mail based corrospondance).
Unfortunitly the only settlement besides the full ammount they are
offering is for me to turn over my website and domain name to them.
Oviously this is their primary intent.
Any advice would be greatly helpful.
David
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Dr Righteous wrote:
Hello, I operate an adult community website. By community I mean that
its primary function is to allow like minded people to post "profiles"
and also upload images to be attached to these profiles for display.
Recently I received corospondance from a adult video company notifying
me that a number of copyrighted images (about 30) had been uploaded by
users in various places on my website. They requested the imediate
removal of these pictures (which we did within 15 minutes of being
notified), and then told us that they intended to file a federal
copyright suit for the sum of $150,000 dollars for "use" of their
pictures.
2) Can they win a case where I was not the entity who posted the
image, and when there was no mark on the image to identify to its
copyrighted state? This would be equivalant to me ripping a photo out
of a magazine, pinning it up in a supermarket and having the
supermarket be sued for copyright infrigment.
DCMA protects you from that, actually, if you removed the
images on receipt of demand.
They clam they are going to file this case in federal court, I can not
afford legal assistance (aka I'm broke), and I need to know if they
filed weither I would be able to represent my issues to the judge (and
if this could be done via postal mail based corrospondance).
You can't stop them from filing. If what you said is the ONLY
justification they have for filing, the suit might be found frivolous,
and you might be able to collect costs and legal fees. Perhaps
you could consult an IP (Intellectual Property) lawyer for an hour
or so to go over your options.
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In article <mn0t00lq0b47o4rgdqtsd9s6c5fbsp6403@4ax.com>,
Dr Righteous <david@artificeassociates.com> wrote:
Hello, I operate an adult community website. By community I mean that
its primary function is to allow like minded people to post "profiles"
and also upload images to be attached to these profiles for display.
Recently I received corospondance from a adult video company notifying
me that a number of copyrighted images (about 30) had been uploaded by
users in various places on my website. They requested the imediate
removal of these pictures (which we did within 15 minutes of being
notified), and then told us that they intended to file a federal
copyright suit for the sum of $150,000 dollars for "use" of their
pictures.
The DMCA should protect you. They can sue the users.
Point 1: They came to that figure based on the fact a copyright page
somewhere on their internet site listed the value of a picture at over
3000 dollars.
Some are worth a lot more, most are worth a lot less.
1) Can they assign an arbitrary value to an image on their website,
and expect a judge to award that ammount when the defendant would have
no way of knowing this information.
They can do both; but their expectation does not control reality.
2) Can they win a case where I was not the entity who posted the
image, and when there was no mark on the image to identify to its
copyrighted state?
Probably not against you; see the DMCA.
Unfortunitly the only settlement besides the full ammount they are
offering is for me to turn over my website and domain name to them.
Oviously this is their primary intent.
Any advice would be greatly helpful.
"Rule 11"
Seth
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On Wed, 21 Jan 2004 08:48:59 -0500, david@artificeassociates.com (Dr
Righteous) wrote:
Hello, I operate an adult community website. By community I mean that
its primary function is to allow like minded people to post "profiles"
and also upload images to be attached to these profiles for display.
Recently I received corospondance from a adult video company notifying
me that a number of copyrighted images (about 30) had been uploaded by
users in various places on my website. They requested the imediate
removal of these pictures (which we did within 15 minutes of being
notified), and then told us that they intended to file a federal
copyright suit for the sum of $150,000 dollars for "use" of their
pictures.
I would hope that you have suitable disclaimers on your site that will
shift responsibility very much into the laps of your users.
Point 1: They came to that figure based on the fact a copyright page
somewhere on their internet site listed the value of a picture at over
3000 dollars. Mind you that this picture wasn't necessarily obtained
from that site.
If they are genuinely copyright then they would not need to have come
directly.
Point 2: Our site maintains profiles for over 100,000 people,
containing over 400,000 pictures which are updated quite often. There
is no physical way for these pictures to be checked manually. And even
if the human resources did exist, there would be NO way to actually
know that the image is copyrighted or that it belonged to this video
company; as the images are not watermarked and do not carry a
copyright statement on them.
Those factors will help your defence. 30 pictures out of 400,000 is a
very small number.
One thing though. What exactly are these images? I can't realistically
see many digital images being worth anything like the amount they
claim.
You mention their's is a video company - are these images snatched
from videos? I would also like to know in exactly what way the images
were used on your site as this may have an effect on the case.
Point 3: While I know this offers little protection, we have always
maintained a disclaimer to users uploading images that they must
either own them or have permission of the owner to upload them.
Ah! While not a total "get out of jail free card" that does improve
your defence a great deal. The fact that you then removed the photos
they claimed were there copyright so quickly is another important
fact.
The corospondance from the video companies lawyer makes use of hot
button words like DCMA, etc... But what I need to know is:
1) Can they assign an arbitrary value to an image on their website,
and expect a judge to award that ammount when the defendant would have
no way of knowing this information.
No. They can seek any amount they like, but the burden of proof, even
if the case was you (which on the details you give I would say is
unlikely) is on them. They would have to prove financial loss.
2) Can they win a case where I was not the entity who posted the
image,
They could, but I believe it is unlikely if your defence is handled
correctly.
and when there was no mark on the image to identify to its
copyrighted state?
A mark is not strictly necessary.
This would be equivalant to me ripping a photo out
of a magazine, pinning it up in a supermarket and having the
supermarket be sued for copyright infrigment.
I'm sure I've read of a very similar case. Certainly here in the UK
there has been a case where a Junior School (7-11 year olds) was
threatened with a lawsuit as a result of copyright images (Disney)
being painted on the walls.
They clam they are going to file this case in federal court, I can not
afford legal assistance (aka I'm broke), and I need to know if they
filed weither I would be able to represent my issues to the judge (and
if this could be done via postal mail based corrospondance).
I will leave that to others with more experience to comment on.
Unfortunitly the only settlement besides the full ammount they are
offering is for me to turn over my website and domain name to them.
Oviously this is their primary intent.
Yes - and you do have to ask yourself whether this has been a set-up
from beginning to end.
The odds that they could find one image, let alone 30, are very small.
I would be looking at your logs and finding out if there is anything
linking the people who posted the images.
Any advice would be greatly helpful.
David
I do hope this will have helped in some way. I also hope you will keep
us informed of developments in the case.
--
Bob.
The facts expressed here belong to everybody, the opinions to me. The
distinction is yours to draw...
..
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On Wed, 21 Jan 2004 08:48:59 -0500, Dr Righteous <david@artificeassociates.com>
wrote:
The corospondance from the video companies lawyer makes use of hot
button words like DCMA, etc... But what I need to know is:
1) Can they assign an arbitrary value to an image on their website,
and expect a judge to award that ammount when the defendant would have
no way of knowing this information.
Probably not. But on the other hand they may be eligible for statutory
damages. Up to $150,000 *per copyrighted work* is available without
any proof of actual damages if they registered their copyright prior to
the infringment.
2) Can they win a case where I was not the entity who posted the
image, and when there was no mark on the image to identify to its
copyrighted state? This would be equivalant to me ripping a photo out
of a magazine, pinning it up in a supermarket and having the
supermarket be sued for copyright infrigment.
Cases can be won where the web site owner is not the poster. Napster
is such an example. I don't know if they can win this one with facts
like your case. You need professional advice.
You might want to look at the DMCA since you don't appear to be familiar
with it. It's possible that you could create a safe haven so that suits
like this wouldn't get out of the starting blocks.
They clam they are going to file this case in federal court, I can not
afford legal assistance (aka I'm broke), and I need to know if they
filed weither I would be able to represent my issues to the judge (and
if this could be done via postal mail based corrospondance).
Copyright infringement cases have to be filed in federal court. It's
not feasible to defend yourself at a trial without being present.
Unfortunitly the only settlement besides the full ammount they are
offering is for me to turn over my website and domain name to them.
Oviously this is their primary intent.
Ouch.
Isaac
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It seems "Seth Breidbart" wrote in misc.legal.moderated:
In article <mn0t00lq0b47o4rgdqtsd9s6c5fbsp6403@4ax.com>,
Dr Righteous <david@artificeassociates.com> wrote:
"Rule 11"
That's not the one about "All persons more than a mile high to leave
the court", is it?
:-)
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com
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It seems "Seth Breidbart" wrote in misc.legal.moderated:
That's not the one about "All persons more than a mile high to leave
the court", is it?
No, it's the one that says you can ask the court for monetary
sanctions, including enough to cover your attorney fees, if you are
required to defend a frivolous lawsuit (or if, as a plaintiff, you are
required to spend effort to overcome a frivolous defense) in Federal
court (and in State courts with an analogous rule). That's why
Original Poster shouldn't worry too much about whether he can be
slapped with groundless suits right and left -- it's a big risk for
the person (and his atty) who misuse the system by raising improper
claims or defenses.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult a lawyer in a private
communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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