Getty Images / Pinsent Masons - Copyright Claim

[bdw]

I have been close to this situation on several forums now since 2006 and on almost every occasion the discussion about the claims becomes fogged by people pointing out the rights and wrongs of copyright and emotively accusing people of theft, etc. Nah, nah, nah, nah, nah na, serves you right, you are a thief!

Can I just point out that receipt of one of these letters is all the education that folk need. They don't need anyone else to tell them what has already been very forcibly pointed out to them. They (the letters) make it very clear that you have infringed copyright and they fully explain the law in this respect so no reinforcement of this is necessary. Let's try to keep on topic.

 

[lawrietemple]

Hi,
I have had two of those letters.
The guy who created our village website moved and I was asked to take over.
The site does not belong to me. I administrate it and other volunteers update it. Who owns it is a moot point.
The offending image was removed as most do.
As my address (not name) is the contact on the web I have got these letters

I am reluctant to reply a because I think as soon as I do and they have my name or phone things will be worse.

I am upset because I recognise clearly that images should be protected. We have a kind of desert island disks on the site and to comply with copyright and fair use I edit them down to 40 secs. make sure each track is evaluated and provide a link to where the whole track can be purchased.

Any advice really welcome

 

[kulture]

As you have had two letters, ignoring them is not an option. You have to reply. That said it is difficult to know what to reply. When you say that the ownership is a moot point, I think the time has come to settle that point.

 

[lawrietemple]

Thanks for getting back.

Reluctant to put my name to this.

Will have to think about it

 

[VeryMark]

I agree with kulture, ignoring the letters is not sensible and, yes, settling who owns the site would now be a good idea.

Do you have a local solicitor in the parish who could advise and might represent you for free?

Might it be an idea to create a (presumably dormant) limited company to hold the website, which would limit your exposure? - company registration through Quick Formations is fast, simple and cheap.

 

[bdw]

I am not a lawyer but I can assure that what follows is fact.

Ignoring these letters is very much an option. The evidence of the last five years or more suggests that hundreds of thousands of these "speculative invoices" have been delivered all over the world. Some people have suggested that it is now into the millions.

During this period there is NO evidence to suggest that ignoring them forces them to take action. In fact during this period there is plenty of circumstantial evidence to suggest that the chances of being taken to court are effectively nil no matter what action you decide to take.

IMO (shared by many others) they are scared to take action because they know that they are very likely to fail. In the UK at least there is evidence to suggest that the courts are not very happy with practices like this in copyright cases. See http://www.guardian.co.uk/technology/blog/2011/feb/04/acs-law-mediacat-close-filesharing


Here more information about similar situations.
http://torrentfreak.com/static/The-Speculative-Invoicing-Handbook.pdf

Making use of a solicitor, or paying a visit to your local Citizens’ Advice Bureau, is very unlikely to damage your case, however unless they are specialists in IP law, or have experience in dealing with these cases they may be of little value.

The bottom line is that it is your decision but in the case of a community website with no flagrancy, no gain and reasonable doubt about who is responsible I would be happy to take any odds the bookies would give me on them taking any further action other than continuing to try to harass you into paying. If they did take you to court I would again be happy to bet on the judge finding against them.

 

[VeryMark]

I agree of course that ignoring legal letters is an option.

Less than 20% of burglars are caught - and in some places it is less than 10% - so they equally would agree that ignoring the police is an option.

I am a lawyer, and I can also tell you for a fact that the two links posted by bdw are an entirely irrelevant red herring - both refer to an entirely different set of facts which have nothing to do with Getty or copying of their images, and the second comes from the USA which makes it even more irrelevant.

In my opinion, it would be sensible to find a local solicitor in the parish who might be prepared to give a little local help for free for the future and to look at how best to protect yourself for the future in general - what if somebody posts something on the parish website which turns out to be a libel for example?

......... but yes, Citizens Advice Bureau are unlikely to be of any help and, no, a local high street solicitor will not be able to give specialist advice on intellectual property law - if you need that.

 

[bdw]

Less than 20% of burglars are caught - and in some places it is less than 10% - so they equally would agree that ignoring the police is an option.

As I say I am not a lawyer but I would say that this is an "entirely irrelevant" analogy. AFAIK burglary is a criminal offence while copyright infringement seldom is. I can also say with confidence that your percentages are wildly wrong. I would say that from what I have read over the last few years the chances of being successfully prosecuted are probably less than 0.001%. I would of course be happy to stand corrected if there is any evidence to suggest that I am wrong?

I am a lawyer, and I can also tell you for a fact that the two links posted by bdw are an entirely irrelevant red herring

I did not say that the links were about Getty. I was crediting anyone who read them with the intelligence to realise this and I did say "practises like this". I still believe the case in the Guardian is a good example of how a UK judge may view the Getty case should they ever have the b@lls to test it in court. I can see a lot of similarities. Do you have any evidence or case history to suggest otherwise?

But let's hear from you as a lawyer and knowing what you know about this. Realistically what are the chances that lawrietemple is likely to be taken to court and to lose his/her case on this?

.

 

[OldWelshGuy]

With the massive change in the law with this regard, I wouold say that stalling for time is in this case at this time the perfect option. AS BDW knows I have never been an advocate of the 'ignore the letters' path, but, with legislation going through along with the news today about speculative invoicing coming to an end, it might well be the best course of action for the time being.

Personally I would buy an aged company and drop the ownership on its doorstep

 

[kulture]

It is an interesting question, who owns the village web site. What you do not want to happen is for Getty to look up the electoral roll and put your name to your address and assume you own it. Also whatever committee that controls the site, and appointed you may also be presumed to own it, or at the very least be responsible. I like the idea of a dormant company owning it. Get Getty's solicitors running around chasing something with no assets

 

[bdw]

I like the idea of a dormant company owning it. Get Getty's solicitors running around chasing something with no assets

That would be great but probably not necessary. They do not really chase anyone around. All they do is send out their harassing letters. Personally I think this is classic example of a case that they would never consider taking to court. I know I keep going on about it but just think what a judge would make of this?

.

 

[marmalade]

With all due respect, the solicitors/lawyers who keep saying Never Ignore The Letters, do have a vested interest in saying that. It must be fairly profitable to charge a couple of hundred to send out a template letter.

 

[Deleted member 59730]

Getty have six years in which to start legal action after the 1st letter. In all that time interest could be building up.

Within six years, but possibly quite soon, it is very likely that a fast track IP court will be introduced. Getty, and others, could then process hundreds of earlier cases through a small claims procedure.

 

[OldWelshGuy]

I agree with Bob and think this is what we will likely see. BUT they will not be able to claim for consequential loss in the small claims court, you can only claim for ACTUAL loss. My argument would be that the cost of an annual licence for the image is £300 I use it for 60 days there fore I am due to pay 60/365 of cost.

Getty etc would be able to claim costs but they would be tiny amounts by comparison to the high court route they have been threatening. And lets face it, we don't need to go to the high court on simple Image use ip cases like this, as they are black and white.

However I know for FACT that a district judge will frown on the way Getty have refused to provide the information requested and refused to follow due process, so many of the cases will get thrown out for this alone.

 

[Deleted member 59730]

I agree with Bob and think this is what we will likely see. BUT they will not be able to claim for consequential loss in the small claims court, you can only claim for ACTUAL loss. My argument would be that the cost of an annual licence for the image is £300 I use it for 60 days there fore I am due to pay 60/365 of cost.

Getty etc would be able to claim costs but they would be tiny amounts by comparison to the high court route they have been threatening. And lets face it, we don't need to go to the high court on simple Image use ip cases like this, as they are black and white.

However I know for FACT that a district judge will frown on the way Getty have refused to provide the information requested and refused to follow due process, so many of the cases will get thrown out for this alone.

AS we don't yet know what 'rules' a new IP court will work under we have no idea what they will do about costs or damages. There is a suggestion that the system will follow that which prevails in some EU country's IP courts. AFAIK some of them have a compulsory Euro 330 charge on top of any award.

 

[bdw]

Within six years, but possibly quite soon, it is very likely that a fast track IP court will be introduced.

They better get a move on then. They started sending out these letters back in 2005.

The photographic community have been have been forecasting all sorts of terrible repercussions for infringers for several years now. In 2009 Getty "finally sued someone and won". At that time Copyright Action said ...

What is significant about this case is that hundreds more may now follow. During 2005-2006 Getty (and Corbis) began invoicing alleged infringing users of their photographs for retrospective licenses. Many hundreds of UK web publishers have since received bills from Getty's UK lawyers, demanding typically £2000-£7000 within 7 days else legal action would be commenced.

What has happened since? Absolutely nothing changed that I am aware of! The case mentioned above got massive publicity on the net and a couple of years later photographers are still gleefully linking to it as though it had real significance.

Here's another forecast from the same source at that time that has also turned out to be wrong.

It seems likely that this was a one-off test case against JA Coles, and having been successful, Getty will now commence proceedings against other non-paying infringers who lack any substantive defence.

A couple of years later this has still not happened and IMO it will all just fade away and die. I could be wrong but I very much doubt that anyone who is receiving these letters has much to worry about.

The past six years have shown that Getty is happy to take what they get from those who are willing to pay for the speculative invoices without questioning them.

 

[VeryMark]

As I say I am not a lawyer but I would say that this is an "entirely irrelevant" analogy. AFAIK burglary is a criminal offence while copyright infringement seldom is. I can also say with confidence that your percentages are wildly wrong. I would say that from what I have read over the last few years the chances of being successfully prosecuted are probably less than 0.001%. I would of course be happy to stand corrected if there is any evidence to suggest that I am wrong?

I did not say that the links were about Getty. I was crediting anyone who read them with the intelligence to realise this and I did say "practises like this". I still believe the case in the Guardian is a good example of how a UK judge may view the Getty case should they ever have the b@lls to test it in court. I can see a lot of similarities. Do you have any evidence or case history to suggest otherwise?

But let's hear from you as a lawyer and knowing what you know about this. Realistically what are the chances that lawrietemple is likely to be taken to court and to lose his/her case on this?

.

It was not an irrelevant analogy, and the percentages I quoted were based on official statistics.

And whether or not I have any evidence or case history doesn't make the MediaCAT case referred to in the Guardian any more or less irrelevant.

Regarding lawrietemple, there are two types of risk.

Firstly, there is the practical risk of whether he/she will be taken to court or not. That I cannot advise on properly without a crystal ball, and evidence of what has happened in the past may not necessarily be good evidence for the future - and hearsay is not hard evidence.

Secondly, there is the legal risk of whether he/she will lose in court. The answer to that may be, yes, as publisher of the image, but to what extent costs and/or damages might be awarded is another matter and depends on the circumstances of the case and what is claimed.

Getty of course would also have to prove their ownership of the copyright, and if lawrietemple can show that he/she took due steps to prevent or halt any infringement that will at least be a mitigating factor.

The other factor is of course that if you get taken to court your own legal costs can outweigh anything else since cases of this kind are expensive in nature.

I advise as best as I can based on the facts and the law, not hearsay or what I have read in the newspapers, and it is never possible to advise fully without being sure of knowing all the facts properly.

 

[VeryMark]

With all due respect, the solicitors/lawyers who keep saying Never Ignore The Letters, do have a vested interest in saying that. It must be fairly profitable to charge a couple of hundred to send out a template letter.

Yes, if I did that, but I don't and I wouldn't, and I wouldn't last long if I did.

Of course I have a vested interest, but so do dentists in toothache lol.

 

[VeryMark]

I agree with Bob and think this is what we will likely see. BUT they will not be able to claim for consequential loss in the small claims court, you can only claim for ACTUAL loss. My argument would be that the cost of an annual licence for the image is £300 I use it for 60 days there fore I am due to pay 60/365 of cost.

Getty etc would be able to claim costs but they would be tiny amounts by comparison to the high court route they have been threatening. And lets face it, we don't need to go to the high court on simple Image use ip cases like this, as they are black and white.

However I know for FACT that a district judge will frown on the way Getty have refused to provide the information requested and refused to follow due process, so many of the cases will get thrown out for this alone.

Actions for copyright infringement cannot be heard in the small claims court, they have to be lodged in the Chancery Division of the High Court (usually its Patents Court), or the Patents County Court.

It is intended that the Patents County Court, to be renamed the Intellectual Property County Court, will become the default forum for future cases under streamlined procedures - further information can be found here.

 

[OldWelshGuy]

That is a different piece of action to that which I was referring. There is another bill going through at the moment that intends preventing this system from working, and it was definitely going to run initally through the small claims (local county court) as first port of call.

Can't be bothered to look for it, don't have the time (might not even be online yet as I had it straight from the horses mouth so to speak)

 

[bdw]

I advise as best as I can based on the facts and the law, not hearsay or what I have read in the newspapers ...

All of my opinions expressed previously on this subject are based on facts that I have learned during my involvement in this (since 2006). I am not a lawyer but I am capable of drawing logical conclusions from the facts available.

I understand that lawyers' advice is based on precedent. In this case there is virtually no precedent of any follow up action by the imaging companies. Based on this and as a lawyer what would you advise?

.

 

[OldWelshGuy]

Oh I forgot to mention The 'change' i spoke of was the change in the way cases are heard. Currently the person bringing the action can demand where it be heard (currently they are going for pretty much the highest court in the land) the 'change' will be to remove this as it is being misused and a district judge is more than capaable of dealing with these simple image infringement cases

 

[VeryMark]

All of my opinions expressed previously on this subject are based on facts that I have learned during my involvement in this (since 2006). I am not a lawyer but I am capable of drawing logical conclusions from the facts available.

I understand that lawyers' advice is based on precedent. In this case there is virtually no precedent of any follow up action by the imaging companies. Based on this and as a lawyer what would you advise?

.

Lawyers' advice is based on judicial precedent and evidence of the facts. A lack of precedent or evidence does not necessarily constitute a precedent or evidence of anything however.

I have commented extensively in previous posts earlier in this thread as to the law, and there is not a great deal I can add.

The law, judicial precedent and the facts show that Getty have the ability to institute legal proceedings and win.

Nevertheless, what Getty choose to do in any particular case is entirely up to them, and each case has to be judged on its individual facts.

None of us are privy, I think, to the specific facts of what actually has happened in each and every case and the available facts therefore seem to me somewhat limited except in certain instances such as that of the legal proceedings taken against J A Coles.

Speculative invoicing in file sharing cases of the kind indulged in by ACS Law is a somewhat different matter and the two should not be confused.

I should add finally that I hold no brief for Getty or any other image rights holder and, indeed, have successfully defended clients in the past against Mattel, Mars, Dolce & Gabbana, Honda, Tommy Hilfiger, Mercedes, and other large companies.

 

[OldWelshGuy]

I am not sure if it is that different. one major point was that the judge mentioned that only the holder can bring action, and also that they have to prove who is responsible.

 

[VeryMark]

Oh I forgot to mention The 'change' i spoke of was the change in the way cases are heard. Currently the person bringing the action can demand where it be heard (currently they are going for pretty much the highest court in the land) the 'change' will be to remove this as it is being misused and a district judge is more than capaable of dealing with these simple image infringement cases

That isn't true, I'm afraid, you can't "demand" where a case is heard, the judicial system allots specific types of cases to specific kinds of courts.

I entirely agree, however, that it would make sense for simple cases to be alloted to simpler courts than sometimes happens at the moment, and businesses can be denied cost-effective justice as a result.

 

[VeryMark]

I am not sure if it is that different. one major point was that the judge mentioned that only the holder can bring action, and also that they have to prove who is responsible.

Generally speaking an exclusive licensee can also bring legal proceedings.

 

[OldWelshGuy]

My understanding is that the copyright holder can choose to have this matter heard at a lower level court. Currently they do not. So by any definition that is demanding where it be heard. My understanding is that the copyright holder can use a local county court and that court can then refer it up to the Chancery court if need be.

Please correct me if I am wrong here, but that is my understanding. Previous to my being corrected a little while ago I believed the same as you , that being all copyright cases had to be heard at a specific place.

 

[VeryMark]

Yes, OWG, you are right to a limited extent, and I apologise if I mislead anyone.

In addition to the High Court, an intellectual property (patent, trade mark, copyright or design right) claim can be brought in a county court where there is a Chancery District Registry or in the Patents County Court.

The reason for this is to make sure that such cases are only brought before judges experienced in such matters, which then of course limits the number of courts in which such cases can be heard.

Chancery Judges sit regularly in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle-upon-Tyne, and occasionally in Preston.

This means that a copyright or other intellectual property (ip) case could for example be brought in the Birmingham District Registry or that of another large city, and some ip cases indeed are.

The factors limiting the number of such cases are that companies are sometimes reluctant to bring cases in courts they are not familiar with and are afraid the result may be more unpredictable, that the number of available courts is limited (if you are in Oxford or Leicester then London is as near), and most of the specialist ip barristers also tend to be in London.

In the past, the Patents County Court has also tended not to be much cheaper or quicker than the High Court, but that is now changing.

But I do not think that companies are automatically demanding that cases be brought in the highest and most expensive courts - large companies tend to be represented by large firms of solicitors based in London, which means that actions tend to be brought in London.

 

[VeryMark]

A very significant change which has just been announced which will help companies facing possible action in these kinds of cases is under Part 36 of the Civil Procedure Rules which will be revised to equalise the imperitive on claimants and defendants to make and accept reasonable offers.

This means that where an offer of money is beaten at trial, by whatever margin, the applicable costs sanctions will apply. An additional sanction equal to 10% of the amount of the claim is also planned to be paid by a defendant that does not accept a claimant's reasonable offer that is not beaten at trial.

 

[bdw]

I hpe you don't mind me saying so but I am not sure that this really matters and it may just confuse those who are following this thread. Long experience has shown that they do not take people to court. They only threaten to do so.

I was on another forum where two or three people actually told Getty's lackeys to take them to court and refused point blank to pay. Even in these circumstances they took no further action.

.

 

[Deleted member 59730]

I can say that there are many who go first to the small claims court but it is the court that pushes the case to a more expensive court, not the claimant.

I have a friend who sued a very big company for breach of copyright whose lawyers are one of the biggest in the world. All done on the web. Hilariously the mega sized lawyers firm had no idea how the small claims court worked and lost by default. Cost them £3,600.

 

[VeryMark]

But presumably the claim was for a debt owed not for copyright infringement or damages?

 

[bdw]

I can say that there are many who go first to the small claims court but it is the court that pushes the case to a more expensive court, not the claimant.

Not in the Getty case, which we are discussing here.

 

[Deleted member 59730]

But presumably the claim was for a debt owed not for copyright infringement or damages?

As you probably know one of the few ways of dealing with small copyright breaches is to send an invoice for a retrospective licence and hope the infringer pays up.* This is what happened in the case I mentioned. In letters and phone calls the big company's lawyers were in no doubt that the issue was breach of copyright.

(* The same tactic employed by Getty)

 

[VeryMark]

Whilst I can understand the temptation to use a speculative invoice for a retrospective licence as being something that can easily be pursued through the small claims court, I have significant doubts that this would in fact stand up as a legal debt if challenged.

I think therefore that we may to some extent be discussing two different things in this thread.

Also, the fact that that a speculative invoice is issued which may not stand up does not then prevent an action for copyright infringement and damages being mounted.

On the other hand, however, an action for copyright infringement and damages cannot be mounted so readily in view of the evidence required and the costs of doing so are significantly greater.

Purely from an economic point of view, therefore - and it is a revenue stream which Getty have to protect, not intangible reputation as in a trade mark or passing off action - it is understandable that Getty are not going to start legal proceedings for copyright infringement every time, if the vast majority are still paying up.

Accordingly, I do not think for one moment that Getty are "scared" or "know that they are going to lose" or that any of the other similar unsupported allegations made are true.

What I do think - and would be prepared to bet on - is that the more certain people encourage anybody infringing to ignore Getty, and the more this is likely to damage Getty's income from image licensing, the nearer this is going to bring the day when somebody else is made an example of, like J A Coles, and suffers accordingly.

 

[bdw]

What I do think - and would be prepared to bet on - is that the more certain people encourage anybody infringing to ignore Getty, and the more this is likely to damage Getty's income from image licensing, the nearer this is going to bring the day when somebody else is made an example of, like J A Coles, and suffers accordingly.

I have to say that I very much doubt this. Apart from those people I mentioned earlier (who publicly challenged Getty to come and get them) I was prominent in a thread against this process for a couple of years in the FSB website. I was also on the Sitepoint forum thread on this. I carried a link to my website (as I do here) and I was clearly identifiable. I publicised this situation as much as I could wherever and whenever I could because I think they are damaging small businesses with this process.

I was also interviewed and quoted in print on this in the Financial Times. I would say that there are possibly another two or three like minded people who potentially "damage" Getty's income in this way. I am also fairly sure that they or their agents monitor threads like this. If Getty was going to make an example then I think they would have went after someone like this by now. What better way to silence us than by winning a judgement against us in court?


.

 

[OldWelshGuy]

I agree with Brian, and I myself advised people that if they had no intention whatsoever of paying they needed to tell Getty/PM to put up or shut up. In as much as they should not contact them in any way whatsoever other than to serve court documents, and that any contact other than that would be seen as illegal harrassment.

They backed off and no docs were filed (yet)

The biggest annoyance in all this was that Getty actually instructed DEBT COLLECTORS when no debt existed.

 

[VeryMark]

I agree, instructing debt collectors is wholly wrong. Equally, though, somebody high profile is not the target I would select.

 

[bdw]

You did refer to "certain people" so I thought you meant someone high profile but I can understand this logic too. Had they come after me I was ready to milk it for every drop.

.

 

[VeryMark]

Yes, well, Brian, I think you're the last person I'd want to take on for that very reason lol.