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Author Topic: DMCA and License  (Read 4511 times)

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« on: May 06, 2009, 09:16 »
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Say I have found a web site using my content in a prohibited way as listed in the license agreement it was downloaded under.  They are being unresponsive in taking it down.  Can I claim they are using the content and infringing my copyright as I did not give them permission to use it in that way, and have the host remove it?  The host I can contact with no problem.

"the complaining party has a good faith belief that use of the material is not authorized by the copyright owner"

http://www.chillingeffects.org/dmca512/faq.cgi#QID440

What do you think?



« Reply #2 on: May 06, 2009, 11:08 »
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They've already sent a cease and desist to the site.  Unfortunately, the company is in the UK, but I believe the host is in the US and more likely to take action when prodded.  I'm just tired of waiting.

« Reply #3 on: May 06, 2009, 11:59 »
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DMCA only applies to US companies.  It's a safety-net for publishers of UGC to give them a stay of execution while they take action on reported copyright infringements.

The host may be your best bet if they don't respond.  A list of USA SPs and their agents:

http://www.copyright.gov/onlinesp/list/index.html

« Reply #4 on: May 06, 2009, 15:13 »
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BTW, my question really was, is it "infringement" if they purchased a license, but are using it against the terms of the license.

Milinz

« Reply #5 on: May 06, 2009, 16:20 »
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BTW, my question really was, is it "infringement" if they purchased a license, but are using it against the terms of the license.

No... It is breaking licence terms... So, it is not copyright infringement... It is more likely they must to pay you compensation for breaking the licence terms!

Unfortunately, you are probably Exclusive on IS... So, now ask them to protect you! Let's see Istock in action...

« Reply #6 on: May 07, 2009, 02:27 »
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BTW, my question really was, is it "infringement" if they purchased a license, but are using it against the terms of the license.


Well if they licensed it, then yes.  If they didn't license it then there's no license infringement, just copyright theft.  Hence the relevancy or otherwise of DMCA.

Send them an invoice:

http://www.justanswer.com/questions/1ty8p-received-letter-getty-images

Google 'Getty Scam' to see how proactive Getty has been in this area.  Unfortunately I'm not sure that their iStockphoto subsidiary acts as a traditional agent in this regard.


« Reply #8 on: May 07, 2009, 18:37 »
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I've gone through this on a daily basis for the last 3 weeks with numerous web sites, hosts, registrars and companies selling products with my images on them.

Easiest way is to pay lots of $$$ for a lawyer. They will get the job done but will you be getting money back? That's a different story.

I found images of mine being sold as stickers at many places. First off, you need to figure out where the heck they got the image from. Most likely (my experience) the "infringer" will not tell you this sweet piece of information. You gotta get it yourself.

If you're exclusive good for you - if not, welcome to hell.

While Shutterstock and the like are very cooperative in such matters (time will pass though) you would have to contact all and I mean ALL the agencies you sell your images on...

As an example Crestock supposedly "does take this seriously" but I have never heard back from them after contacting the correct person at Crestock with the explicit request to inform me whether their investigation is going anywhere or not.

So, given the fact that you might not get 100% facts from your agents (I know it's sad) you will be left in a gray area where you technically and legally couldn't even act! There still remains the doubt that the "infringer" might have acquired a license from that one agency that never got back to you. So what do you do?

I don't have the $$$ for all the cases I have on my plate right now to hire a lawyer. Secondly the requirement when you want to hire a lawyer is having your copyright registered... Otherwise most lawyers will drop you like a hot potato because chances for a claim of damages will drop significantly and so will their commission if they decided to do a contingency.

This really pissed me off.

Now, being on my own (more or less - Shutterstock "investigating" - side note: Anthony does a fantastic job at this seriously) things still keep moving pretty slow. Too slow for me.

Every passing minute I see my image online for free download or on a product I get a rash between my toes.

So, I write a nice email to the webmaster/owner or whoever runs that thing asking for a license. Guess what happens?
You get an email back (if you're lucky...) with them saying (hold on tight):

"Oooooh I didn't know that this image was for sale, I downloaded it off the internet. If I would have known that it was for sale I would have paid for (I'm dying laughing...) or I bought a clipart CD and that image was on there". Needless to say that in most of such cases (of course my stuff is not on a Clipart CD for sale - der) the commercial reproduction is also not covered.

Most of the times they remove the image right there and then. Be sure to make screenshots and save the HTML code of the site before you do all this!!!!!

Now, if it comes down to that they don't present a valid license for the image in question.

1. They have to remove the image
2. You contact the web hosts for copyright infringement/copyright misrepresentation whatever . you like. You explain the web host who you are, link to the image in question at Shutterstock or wherever and make the claim. The web host will contact the owner of the site (usually) and shut them down (temporarily) until the owner either makes a counter-claim or removes the content. In my experience the site will go back online as soon as the content is removed.

Yep, the risk remains that it will happen again.

This thing is extremely frustrating, time consuming and/or expensive if you take a lawyer.

Besides, those "infringers" act like nothing happened after they took the image/s down.

Oftentimes I find a website with my image and also lots of images from other contributors. That's where it starts getting funny. I make the report to the web host. They take the site down. Owner removes image. Site goes back up. I contact another contributor whose copyright has been infringed and have him/her report the site to the web host again. So the process starts all over. Eventually the host will kick that "infringer" and they gotta setup their "shop" all over again. Gives me some satisfaction.

P.S. the term "infringer" could stand for a lot of words I'm not allowed to use here - use your imagination.

« Reply #9 on: May 07, 2009, 19:44 »
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Achilles,

What is the settlement in such cases?  The infractor merely has to buy the image? 

Click,

I think a lawyer can't help here. Would he work in international cases?

What I find furstrating in these cases is that it seems to be we have little to do.  Even if you take a screen shot with the image, what happens? Someone once said that in you go to justice the penalty is proportional to the loss. You loss a sale. The infractor will not be required to pay US$1,000. Of course, this may be different if he is using the image in products or whatever that would have required an EL. A website image? I don't think so. So it's very little risk for the infractor.

« Reply #10 on: May 07, 2009, 19:58 »
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...Click,

I think a lawyer can't help here. Would he work in international cases?

What I find furstrating in these cases is that it seems to be we have little to do.  Even if you take a screen shot with the image, what happens? Someone once said that in you go to justice the penalty is proportional to the loss. You loss a sale. The infractor will not be required to pay US$1,000. Of course, this may be different if he is using the image in products or whatever that would have required an EL. A website image? I don't think so. So it's very little risk for the infractor.

Well the screen shots are just little gimmick in the whole story. Of course you can't make a case solely on a screen shot.

However, if you're quick enough and report them to the web host - AFTER they failed to bring forth proof of a license and WHILE the file is still on the server, then the web host is not up to any funny business anymore. They do take this seriously - some more, some less BUT the site will (most likely) be taken down - even if it is temporarily.

I don't have to mention what an offline web site can do to a business... Those people will think twice before they screw around with other images they just scraped off the net.

I believe you could consider this a risk for the "infringer". At least I do.


 

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