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Copyright and Use of this Website Material*

Home of American Civil War Homepage  2005-2018

www.thomaslegion.net and http://thomaslegioncherokee.tripod.com

This noncommercial personal website is designed for nonprofit educational research only
 
Introduction
 
This page provides copyright information to assist and protect website, blog, Facebook, and Twitter users, and it also discusses my personal website, thomaslegion.net, which is for noncommercial educational research use only.
 
My name is Matt and I created this personal, noncommercial website because I enjoy researching, studying, and writing about the American Civil War, and as a disabled military veteran who requires daily assistance from my caregiver, the subject is therapeutic. To quickly answer many of your questions about use of this website, visit the website sections on how to use the site material in a school report or paper. Click on the social buttons above to share this page if you found it helpful. The biggest compliment that I can receive is a Share, and you’d also be surprised how many people you can help!
 
Have you ever been accused of photo copyright infringement, or willful copyright infringement? Learn how to prepare and defend yourself against any infringement accusation and claim by the rights holder, as well as how to counterclaim with tort claims. Only on this website, for instance, and within minutes, will you be able to identify when, as well as why, the rights holder and the copyright attorney is bluffing. Copyright attorney is merely an informal title for any attorney who has contacted you on behalf of the rights holder, but copyright matters are best discussed with an intellectual property lawyer, known as IP attorney, and you may locate an intellectual property law firm or lawyer by conducting minimum research online. (See also Falsely Accused of Willful Copyright Infringement: Filing Counterclaim and Tort Claims.)

Website Use
 
As the sole owner/webmaster of thomaslegion.net -- my personal website -- it is for noncommercial educational research use only and it conforms to all four fair use factors under Section 107 of the US Copyright Act. In each instance of Fair Use, the amount of reproduced material appearing in thomaslegion.net is considered, under current precedents and prevailing interpretations, "de minimis" under the law. This is not a business, there are no employees, and nothing on this website -- including but not limited to content, photos, maps, text, and code -- has ever been sold. After reading the page, if you have questions or comments about the usage of this website, email americancivilwar [@] yahoo.com

Copyright Help for Website and Blog Owners

I am not an attorney -- but you probably know that by now -- so the assistance offered should not be considered legal advice. Be prudent and always seek an attorney for legal advice and answers to your questions. 
 
Have you ever posted a photo on your website, blog, Facebook or Twitter account? You most likely answered yes, but a single photograph could make you the target of the rights holder. Subsequently, the copyright holder accuses you of infringing on one photo and then retains the services of an intellectual property rights attorney on a contingency basis with 60/40 recovery. The singular objective of the client and attorney is to persuade you to settle out of federal court by compensating the client for maximum damages, meaning as much money that they can get from you, i.e., $20,000 for the photo that you posted on your blog. Refusal to comply with the attorney's catastrophic (unconscionable) monetary settlement demands, usually within 10 days, is met with swift threats of filing a federal lawsuit against you seeking maximum statutory damages of $150,000, plus court courts and attorney's fees. 
 
You should read this section to safeguard yourself from any client filing a photo copyright infringement lawsuit against you. The following information will assist you in knowing if your website or blog is vulnerable, how to respond to any demand letter by using the online tools and technology provided, and common pitfalls to avoid. If any information on this page assists you or a loved one, I hope that you will share it with others.
 
 
Examples of Copyright Misuse as an Affirmative Defense
 

Website
 
 
Nothing from or on this website has or will be sold for any purpose or for any financial gain -- because it is a noncommercial educational research site only. So from its origin, only 4 pages on this website state copyright. At the footer of hundreds of pages it states "Copyright Terms," which directs the student to this page for terms of usage. This noncommercial personal website was and is designed with students in mind, so hopefully you will enjoy your study.

Links and Hyperlinks to Other Websites

This website provides links to external websites because they provide information that may interest guests; links are provided as a convenience only. External links and hyperlinks with other internet  websites are maintained by third parties. Neither this website nor its subdomains, webpages, entities, affiliates in any way control the third party material and the services/products offered through such third party websites. These terms and conditions apply solely to this noncommercial website, and you should always review the terms and conditions of any website that you access through a link from this website.

Stand thy ground against photo copyright attorneys
If Civil War cannons could talk.jpg
In a single day, Antietam soil drank more blood than any other single day battle in US history

Some Material May Be Used
 
This is my noncommercial personal website and it is for noncommercial educational research purposes only, so contact me regarding the application of its materials and content. The Copyright only applies to my work.
 
This website is a blending of various elements: articles and photographs submitted by visitors, a lot of public domain materials, and original material authored or created by the webmaster. My original code, photographs, and written materials (Title is Thomas’ Legion: The 69th North Carolina Regiment) are the rights that I possess, and because this website is a blend of various materials, copyrights may be held by me, another person, or the material may even be public domain, so some material may be used, but contact the webmaster for specifics at americancivilwar@yahoo.com. Examples of copyrighted material from third parties: Civil War maps property of Cartographer Hal Jespersen, located online cwmaps.com/freemaps.html; Civil War maps courtesy Cartographer Mark A. Moore; Civil War Trust, located online civilwar.org.

Fair Use Under Section 107 of the US Copyright Act
 
A noncommercial personal website created and used solely for educational research is the standard for meeting the four fair use factors set forth in Section 107 of the U.S. Copyright Act.
 
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
 
1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
 
 
Claiming fair use by applying the four fair use factors under Section 107 of the US Copyright Act is a strong firewall for the individual who owns a personal website that is used for noncommercial educational research, but it may prove difficult for the website used for business or commercial application.
 
Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn't depend on whether you give credit to the source from which you copied. Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in Section 107 of the Copyright Act.
 
Federal judges have ruled in favor of noncommercial educational and nonprofit educational websites with use of “thumbnail, or low-resolution version of the image, as an acceptable amount under Section 107 of the Copyright Act." The word or indicates alternatives.
 
Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a federal court has ruled that a “thumbnail” or "low-resolution version of an image" is a lesser amount. Such a version of an image might adequately serve educational or research purposes.
 
One may make fair use of a copyrighted work without the copyright holder’s permission, but the determination of whether a use of a copyrighted work is within fair use depends upon making a reasoned and balanced application of the four fair use factors set forth in Section 107 of the U.S. Copyright Act:

1.The purpose and character of the use of copyrighted work
  • Transformative quality - Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?
  • Commercial or noncommercial - Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.
Thomaslegion.net is a personal website solely for noncommercial and educational use, and I have never sold any content that is on this website. My intent is only for educational purposes, specifically to provide an educational reference to the American Civil War. There is no mechanism by which I profit commercially or detract or limit the copyright holder's ability to profit commercially from material published under Fair Use.
 
2.The nature of the copyrighted work
A particular use is more likely to be considered fair when the copied work is nonfiction rather than fiction.
 
The nature of any excerpted copyrighted works appearing on thomaslegion.net under "Fair Use" is solely, and only, relative to history, mainly American Civil War history. Excerpts for noncommercial educational research consists of the following: previously published text, educational photographs to meet the educational objectives.

3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its "heart," may weigh against fair use. But "how much is too much" depends on the purpose of the second use.
 
The amount of quoted or excerpted material used by thomaslegion.net when applying "Fair Use" is minimal, and never approaches a substantial, or an entire amount of the work being quoted or excerpted. Thomaslegion.net does not excerpt the essence or "the heart" of a copyrighted work when publishing under "Fair Use". The "minimal usage" policy is applied to all excerpted photographs, text, or narratives. In each instance of Fair Use, the amount of reproduced material appearing in thomaslegion.net is considered, under current precedents and prevailing interpretations, "de minimis" under the law.

4.The effect of the use upon the potential market for or value of the copyrighted work
This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.
 
Small, low-resolution photographs such as 200x250 pixels on a personal website for educational and noncommercial use should not be considered remotely competitive to the copyright holder's commercial prints with a matte, glossy, lustre, or metallic finish and sold as "high-quality JPEGs" photographs consisting of from "several thousands to tens-of-thousands of pixels" and sold on a  massive inventory of commercial merchandise.
 
While any copying of an entire work usually weighs heavily against fair use, images generate serious controversies because a user nearly always wants the full image, or the full “amount.” Federal judges have ruled in favor of “thumbnail,” or "low-resolution version of the image," as an acceptable “amount."

What is a Copyright Extortion Letter or Internet Photo Infringement Letter?
 
Definition
 
A copyright extortion letter, veiled as a demand letter, is any communication transmitted by a client's attorney with accusations of copyright infringement of photographs along with threats and demands of money against an individual or party; or
 
An attorney on behalf or his/her client, with intent to extort from any person any money, transmits any communication containing any threat because of copyright infringement.
 
The copyright infringement letter contains three common characteristics:
 
1) Accuses, demands, and threats that you cease and desist all usage of copyrighted photos; and
2) Offers a settlement if you send large amounts of money, usually several thousand dollars, to a listed address by a deadline of generally 10 days; and
3) States that if you reject the settlement offer then litigation is highly likely and the outcome is that the client turned plaintiff is awarded maximum statutory damages up to $150,000.
 
If you receive the preceding communication, seek advice from an attorney experienced in Internet and Copyright Law, or Internet Property Law in Internet Trademark and Copyright, or Internet Intellectual Property Law, because you need a strong defense against copyright infringement accusations and claims.

An attorney will advise you on rights claimants
Lest We Forget the Battle of Antietam.jpg
Now calm at Antietam, but may we never forget the bloodiest single day in US history

I have been Accused of Photo Copyright Infringement on my Website! What Should I do?
 
Always consult an attorney for legal advice before making any decision.

 
If you receive what many refer to as the copyright extortion letter (aka demand letter) from an attorney, it is a serious mistake for you to call, write or communicate directly with the client or his/her attorney. If you have already contacted the party and are involved in haggling for a reduced settlement-- don't give them one dime. Because if the client had a strong case, the attorney would have already filed a lawsuit seeking statutory damages instead of all the "spit boxing" over a reduced settlement. Cease communicating with the dog begging for the bone and seek counsel immediately. If you do have photos on your website that may not be yours, then remove them.
 
If your website is a personal website used for noncommercial or nonprofit educational use only, because it meets all four factors of fair use under Section 107 of the US Copyright Act, you have a very strong legal defense. If you are also in receipt of any communication from the attorney or client that contains threats, false accusations, or grossly extorted legal repercussions against you, your attorney should plead copyright misuse as an affirmative defense and subsequently establish venue and file for damages.
 
Print the attorney's demand letter, then contact an attorney who practices in Internet and Copyright Law, or Internet Property Law in Internet Trademark and Copyright, or Internet Intellectual Property Law for advice. Remove the photos if you can't prove that they are yours. Research the copyright registration numbers on the demand letter and try to verify their veracity, but it may prove difficult because photos are often times placed on discs, which may or may not contain the infringed photos. Begin researching public records and verify that the client has retained the named attorney. Search the client's full name through public records, which include court records. The public records may reveal a trend of filing past infringement claims, as well as other pertinent information. Go to the client's websites and search for the photos that you are accused of stealing. You may use Firefox and IE browsers to locate detailed information on each photo. Right click on each photo, scroll to properties, then details. Scroll down to sections containing date taken, date acquired, and copyright, and if you see data it was manually entered, so don't take it as fact.
 
Run your site and the client's website through Whois and Whois (options), Wayback MachineWayback Machine (Archive), Wayback Machine FAQ Archive Today (run each photo.jpg, subdomain, and domain of the client), Snagit, Copyright.gov, Alexa, and Quantcast.
 
Example
A copyright holder accuses a website owner of willful copyright infringement of 6 photos and demands a hefty settlement. The accused consults an attorney and begins due diligence.
Although the rights holder may claim 2004 in the copyright section, the rights holder was found to have initially uploaded the photos to the internet in 2007, and then in 2012 added large copyright watermarks with the year 2004. But oddly, it was established that the rights holder had copyrights with the US Copyright Office in 2004, but he acted intentionally or recklessly (or both) by initially placing the photos on the internet in 2007, and in 2012 by adding large, obtrusive copyright watermarks over the center of each photo with copyright date 2004, and subsequently accusing willful copyright infringement in 2014. 
 
The copyright notices were absent when the accused infringer posted the photos (reducing size; lower resolution, but not interfering with the integrity of each photo) on her noncommercial educational research site in 2008, but the rights holder retained an attorney and initiated copyright infringement bombing on unsuspecting infringers in 2014. In the demand letter the rights holder accuses the site owner of willful copyright infringement (criminal and civil implications) by intentionally altering and removing the copyrights and watermarks from each photo. The demand was $30,000 in 10 business days or be subjected to $150,000 in statutory damages, plus attorney's fees and court costs.
 
The accused sought the advice of an attorney and performed her due diligence. With assistance from experts, she discovered that the rights holder had initially placed the photos, without copyrights or watermarks, on different pages of a third party site in 2007, and she takes screenshots of the pages as evidence. She also takes screenshots of the pages containing the photos as they appeared on her noncommercial educational research site in 2008-- still no watermarks or copyrights. She established as fact that in 2012 the photos had large copyright watermarks on the center of each photo that appeared on different pages of the holder's recently purchased commercial website.
 
Claiming fair use by applying the four fair use factors under Section 107 of the US Copyright Act is a strong firewall for the individual who owns a personal website that is used for noncommercial educational research only, but it may prove difficult for the website used for business or commercial application. You should always consult an attorney for legal advice before making any decision.
 
The attorney that contacted you with the copyright extortion letter, in my opinion, is merely a snake oil salesperson that will toss you a high settlement amount, for example $15,000, knowing that a lesser amount will do just fine. In doing so, the attorney wants you to believe that you are getting a very good deal, and will apply what is known as the option close by offering you the option of monthly installments or allowing your insurance (business or otherwise) to issue a settlement payment. But don't succumb, cease conversation and seek legal advice. Of course the attorney will continue to reiterate that if it proceeds to litigation the statutory damages are going to be much higher, and blah blah blah. The two of you are now engaged in what I refer to as "spit boxing," and the attorney will continue to grind you down until you break and reach a settlement of perhaps $1,500. But you are most likely shafted (you have been scammed) for paying one dime because you didn't seek counsel. 
 
Lockjaw is swiftly injected in the photo copyright infringement attorney who represents the client by sending accusations and threats, veiled as demand letter, to the individual who has no insurance and owns the personal website that is used solely for noncommercial educational research. As a matter of fact, you can visit any law firm on the internet that practices in so-called photo copyright infringement law and you will never find one article boasting of their successful damages and awards received from litigation against the individual who has a noncommercial personal website for educational research only. Actually, they avoid writing about the subject. They avoid the subject like the plague -- and for very good reason.
 
The client and attorney only care about getting the maximum amount of money from you and not one dime less.
 
A seasoned attorney will only represent a copyright holder who has a case that is more likely than not going to generate hefty damages. It is highly unlikely that the attorney (or the copyright holder) is going to waste his or her time pursuing a claim that will almost certainly be counterproductive and result in little if any damages. The litigation could also prove costly for the copyright holder because of attorney's fees as well as the lost time that could have been utilized in his or her profession. The attorney that sent you the demand letter is not going to waste his/her time on a case, on litigation, that will highly unlikely generate a significant award. So in lieu of litigation, the attorney may try to convince you, really scare the hell out of you, that unless you pay the amount, i.e. $15,000, by a certain date, the client will highly likely file a lawsuit against you seeking statutory damages, court costs, attorney's fees, etc., as high as $150,000.
 
If you own a personal website used for noncommercial or nonprofit educational research, according to Section 107, and you receive a demand letter from the client's attorney accusing you of committing copyright infringement by using the client's photographs, take a deep breathe and read the letter carefully and then reread it. Don't freak out and do not contact the client or his/her representation under any circumstances, but seek counsel from an attorney who is experienced in the charges against you. Many attorneys, particularly if you reside in a large city, are experienced in Internet and Copyright Law, or Internet Property Law in Internet Trademark and Copyright, or Internet Intellectual Property Law, and will even offer you a free initial consultation. See also What You Need to Know About the Photo Copyright Infringement Attorney.
 
Photograph Copyright Infringement

Always consult an attorney for legal advice before making any decision.
 
I Have Been Accused of Photo Copyright Infringement, so How do I Defend Against the Copyright Holder?
 
Don't copyright and chances are you wouldn't be asking the question, but you are most likely reading this because you have already been accused of copyright infringement. If you are initially contacted by an attorney who has accused you of infringing on his/her client's copyright because of photographs that are located on your website, ask yourself, where did I get those photos from? Pinterest, flickr, instagram, tumblr, email, or I don't recall? If the photographs are not yours, then perhaps you should remove them immediately. Although you removed the photographs from the website, it doesn't relieve you of copyright infringement, and although you assigned proper attribution to the photographs, even linking to their respective pages of origin, it doesn't mitigate copyright infringement, and although you were ignorant of infringement, it doesn't assuage you as an infringer, and although you call or write the rights holder's attorney, he/she will grant no appeasement unless you click your heals thrice, bow, pay homage, and offer grand tribute as penance. Claiming fair use by applying all four factors of fair use under Section 107 of the US Copyright Act is a strong firewall for the individual who owns a personal website that is used for noncommercial educational research, but it may prove difficult for the website used for business or commercial application. You should always consult an attorney for legal advice before making any decision.
 
But if your website is a noncommercial personal website for educational research only and adheres to all four factors of fair use under Section 107 of the US Copyright Act, you can now exhale a sigh because you just transitioned from being stranded outdoors at Toadsuck, Arkansas, without an umbrella while in a toad strangling thunderstorm to a splendid sunny day of relaxation while soaking up the rays on the smooth sands of the beautiful shores of Malibu Beach with its slight breeze mellowing your mood as you sip your favorite beverage with an allotment of beauty at every turn.
 
Federal courts have exclusive jurisdiction over copyright infringement claims, so if you are accused of copyright infringement you should contact an attorney for legal advice immediately. I am neither an attorney nor of state of mind to advise anyone, other than to seek an attorney experienced in the field. Do not be intimidated inasmuch as the rights holder's attorney struck first with letters filled with accusations, legal precedents and jargon, because anyone who has served or fought while in the military understands that a good defense can engage a good offense that is threefold its strength. See also What You Need to Know About the Photo Copyright Infringement Attorney.
 
Application of the four fair use factors set forth in Section 107 of the U.S. Copyright Act is one defense. There are, however, civil and criminal elements to copyright infringement, so if you are accused of willful copyright infringement it is a serious charge.
 
Example
Apply fair use under Section 107 of the US Copyright Act.
 
You have been contacted by an attorney representing a client who has accused you of copyright infringement of a photograph that is on your website. The photograph is on your personal website that is for noncommercial educational research, but as the infringer you will need to prove that you have conformed to the four factors of fair use under Section 107 of the US Copyright Act, i.e. photograph appears on your personal, noncommercial website for educational research only, the photograph is of low-resolution, not sold, has no effect of the use upon the potential market of the copyright holder. Small, low-resolution photographs such as 200x250 pixels on a personal website for educational and noncommercial use should not be considered remotely competitive to the copyright holder's commercial prints with a matte, glossy, lustre, or metallic finish and advertised and sold as "high-quality JPEGs" photographs consisting of from "several thousands to tens-of-thousands of pixels" and sold on a massive inventory of commercial merchandise.
 
Example
Apply fair use according to Section 107 of the US Copyright Act, or plead Copyright Misuse as Affirmative Defense.
 
If it proceeds to litigation, the plaintiff may or may not prove to be the copyright holder of some or any of the photographs on your noncommercial personal website, and if you are innocent of the following then don't be intimidated if an attorney initially transmits accusations against you for committing "willful copyright infringement" by removing large copyright watermarks from on or near the center of the photographs, and demands that your pay his/her client $25,000 within 10 days or you will likely face statutory damages of up to $150,000, because this is your signal to seek an experienced attorney and to avoid making any poor decisions. Remember, the attorney who sent you the letter is a professional in the field, so don't make any decisions without your attorney's advice. But on the other hand, your website, particularly if it is a noncommercial personal website, may be protected under "Fair Use" by the four fair use factors under Section 107 of the US Copyright Act. You will also have access to facts (an experienced attorney really comes to your defense here) that disprove the plaintiff's accusation of "willful copyright infringement", and plead copyright misuse as an affirmative defense because facts permit.
 
Although willful copyright infringement is a serious charge, it isn't easy to prove, and requires that a copyright owner show that the infringer intentionally or recklessly constituted infringement or recklessly disregarded the possibility of infringement.
 
Note that the principal objective of the copyright holder and his/her attorney is to squeeze you for as much money as possible -- that is how the bills are paid -- and although unconscionable and reprehensible to imagine, the copyright holder and his/her attorney will more likely than not demand that you give them large portions of your social security disability and even veteran's compensation. Because this is not let's make a deal -- and the attorney that contacted you is well-versed in accusations, allegations, and rebuttals -- let your attorney defend you. See also Falsely Accused of "Willful Copyright Infringement" : The Broken Neck and Tort Claims.

If you are obviously a person with disabilities (missing limbs for example), your attorney may inquire about your health immediately with very direct questions, so don't be alarmed. If you are disabled, but perhaps it is not obvious to your attorney, you may, it is solely your decision, introduce the nature of your present health. An experienced attorney will proceed accordingly. If any form of communication from the client or his/her attorney has caused you grave physical or emotional distress (such as suicide attempts and admissions to any mental healthcare facilities), willingness to divulge the facts is your decision. You may wish to contact your clinical psychologist and/or psychiatrist for guidance.
 
Whether or not the rights holder files a lawsuit in federal court against you is now irrelevant, but if litigation occurs and it is affirmed that the copyright holder committed copyright misuse, or falsely accused you, then your attorney should consider all damages that you suffered. However, if you have already received communication from the client's attorney and suffer severe emotional distress, your attorney may advise you to file an intentional tort claim for damages suffered by the outrageous conduct, intentionally or recklessly, that caused you severe emotional distress. See also I Received the Photograph Copyright Extortion Letter, Help!
 
Disproving Copyright Infringement of Photographs

Always consult an attorney for legal advice before making any decision.
 
How can I Disprove Copyright Infringement of Photographs?
 
Claiming fair use by applying the four fair use factors under Section 107 of the US Copyright Act is a strong firewall for the individual who owns a personal website that is used for noncommercial educational research, but it may prove difficult for the website used for business or commercial application. You should always consult an attorney for legal advice before making any decision.
 
Fair use is decided by federal courts on a case-by-case basis after balancing the four factors listed in Section 107 of the US Copyright Act. Claims of copyright infringement are settled in federal court between the alleged infringer, now known as the defendant, and the copyright holder, the plaintiff. While many are familiar with fair use, the defense should plead copyright misuse as an affirmative defense whenever facts permit. See also I Received the Photograph Copyright Extortion Letter, Help!
 
Example
Apply fair use according to Section 107 of the US Copyright Act.
 
You have been contacted by an attorney representing a client who has accused you of copyright infringement of a photograph that is on your website. The website is your personal website that is for noncommercial educational research, but as the infringer you will need to prove that you have conformed to the four factors of fair use of the US Copyright Act: photograph appears on your personal, noncommercial website for educational research only, the photograph is of low-resolution, not sold, has no effect of the use upon the potential market of the copyright holder.
Small, low-resolution photographs such as 200x250 pixels on a personal website for educational and noncommercial use should not be considered remotely competitive to the copyright holder's commercial prints with a matte, glossy, lustre, or metallic finish and advertised and sold as "high-quality JPEGs" photographs consisting of from "several thousands to tens-of-thousands of pixels" and sold on a massive inventory of commercial merchandise. See also What You Need to Know About the Photo Copyright Infringement Attorney.

Educational research sites are protected sites
Antietam Battlefield.jpg
Antietam Battlefield is hallowed ground

Yes, Virginia, There is a Photo Copyright Lotto
 
You have the right to remain silent, which means keep thy mouth shut and consult with an attorney.
 
Why do Copyright Holders and Attorneys Prey on Individuals with Accusations of Photo Copyright Infringement?
 
They don't prey on individuals because the deep pockets are elsewhere. While attorneys are professionals (photo infringement = $$$$$) and they regularly send demand letters accusing individuals of photo copyright infringement, they prefer to send each letter to the business represented by an insurance company that will write a sweet settlement check in a nanosecond. Why do we have car insurance? In case we get in a wreck. Business has insurance for the same reason. An individual, take John Doe for example, who owns a blog and his hobby is blogging about jackalopes. Does Doe have insurance? He rents an apartment and has a car, so it is highly unlikely that he is insured against copyright infringement.
 
Individuals get caught in the fray, the wake of the photo copyright attorney, by committing the identical mistake that many citizens commit when arrested -- they talk. It has been stated often that if you are arrested, always exercise your right to remain silent. That means shut up, retain counsel, and continue to remain silent.
 
For example, the infringer, without seeking the advice from an attorney, receives and reads the photo copyright infringement letter with its accusations, threats, mixed with legal jargon and federal court scare tactics, and then initiates dialogue with the client's attorney hoping to make things right. That is a grave mistake. At this point apologies are issued only to be received with that is fine, but you are still liable for past infringements... ignorance is no excuse... you infringed on one photo on your website, but whether one or one hundred you are still an infringer. The dialogue continues only to wear you down emotionally, but it is designed to do that. Eventually the alternative, such as the lawsuit that will likely be filed against you for substantial statutory damages, including attorney's fees and court costs, is reiterated to you unless you agree to a settlement now. Like impulse buying, the pressure is on, what are you going to do?
 
Attorney's only take on, meaning enter into litigation, cases that they believe present low risk and high return. Otherwise, they continue spit boxing with you because you responded to the attorney's communication hoping that an apology or reduced settlement would be satisfactory. And that was the purpose of the demand letter, and you fell for it. The client and attorney initially thought that you were a small business owner, because they ran your website through whois, alexa, and quantcast, but they assumed incorrectly. The attorney, however, now knows that you are a renter and have no insurance to satisfy the settlement, so the two of you continue haggling with offers and counteroffers exchanged. Alas, you both agree on the amount of $2,000, which is to be paid out in 20 monthly installments. Great deal, 'eh? Nope. Just because the settlement letter demanded $15,000, it was intended to make you feel like you got a bargain at two grand. For an hour of spit boxing, attorney rakes in $800 and the client a cozy $1,200.
 
Remember, if statutory damages were highly likely then why on earth is the attorney discussing a reduced settlement, paltry too, with options of monthly installments?
 
Facts indicate that the plaintiff who files and wins his first photograph copyright infringement case, has a 90% probability of striking his next victim of photo infringement within 24 months. If you are ever accused of photo copyright infringement, contact an attorney immediately, and perform your due diligence on the client-- because you may be amazed at what shows up in federal and state court records. Public records can easily be obtained without charge, and the records allow you keen insight into the individual who has plans to make you his next victim. The motivation is money, the motivation is greed, and greed eventually causes mistakes to be made.
 
The split is generally 60/40 on the photo copyright infringement case, with the client raking in the larger percentage, and, in lieu of lengthy and costly litigation, businesses generally allow their insurance companies to issue settlement checks to the client's attorney. The settlement amount may be agreed upon quickly and it is usually a high figure, particularly factoring in the time spent on the few form letters that were exchanged. The settlement check enter the pockets of the client and attorney without litigation. No litigation means more time for both the attorney and client to generate numerous photo copyright infringement letters to more businesses.
 
The questions are rather basic and common sense. Does an attorney really want to spend all that time haggling with an individual who is blogging about cows and horses, and has no insurance by the way, or do you aggressively pursue real pay dirt, which is the business with deep pockets and insurance with the quick payout? It's simplicity. In sales some business models refer to it as 841, meaning 8 leads generate 4 appointments, and 4 appointments will close 1 sweetheart deal. Numbers, plain and simple.
 
Business has a bullseye on its back-- it is an easy target. Why threaten any business with the likelihood of litigation in federal court for statutory damages? Just think about which generates the most money: the photo copyright infringement attorney negotiating five insurance settlements; or the plaintiff and defendant engaged in lengthy communication and perhaps litigation where nothing is a sure thing? 
 
Business is typically a commercial entity with the goal of generating profits. Hmmm, lots of money in the arena. Business usually carries insurance (business insurance, duh) that will protect it, including its employees, from liabilities and damages such as libel, slander, copyright infringement, and defamation. The insatiable money lusting client and attorney will always include that in the settlement letter, because the attorney, believing that you own a business, will ask you to contact your business insurance for settlement. Plain and simple, it is easy and it fast money.
 
Businesses don't make money while they are in litigation, but neither do attorneys. Businesses don't want to risk the exposure of their clients or the risk of higher damages in federal court, so they opt for the settlement. Photo copyright attorneys know it, too, so by a business settling out of court, the client and attorney get easy fast cash and then move on to the next target.
 
Overwhelm the business owner with accusations and odds highly favor that something will stick, something will resonate. Clients and attorneys who send copyright infringement demand letters to businesses understand that it is extremely difficult to track the trail of every photo, so if one account is compromised, is it systemic? Then there is damage control, and every client account and photograph must be reviewed, and measures need to be implemented to avoid future copyright infringement. Attorneys are aware of the temporary chaos inflicted into the business model, and it increases the odds of a quick insurance settlement. Using it to their advantage with a settlement deadline date, the attorney has forced the business to settle, thus avoiding costly litigation while allowing management to review and verify its inventory of existing photographs, and to implement measures to prevent any future infringement.
 
Similar to Abbott and Costello: Who's on first, What's on second, I Don't Know is on third. That is exactly why photo copyright infringement attorneys enjoy sending the demand letters to businesses. It is similar: who had that photo? How many other accounts have copyrighted photos on them? Who sent us the photos? Who is responsible for quality control? Where are the discs? What day is it? The business is expected to be consumed internally with diversions of chaos, and the attorney understands that. Counsel enjoys the diversion because it favors the client. The client is updated daily and patiently waits for a settlement check to be deposited in the account stated in the demand letter.
 
In the following example the copyright holder is alerted on a domain that has his photos on it, known as copyright infringement. But infringement can only be proven in court, unless the infringer admits to the act. 
 
Upon examination of the website that has infringed on the photos, it is revealed that the site was built by an amateur. It is also a business, has employees, and is therefore an excellent candidate for a large payout. A business website that was built by an amateur, but wait, it gets much better. The site, after further inspection, is being maintained on an obsolete site builder that no longer receives updates. Instead of migrating to newer safer technology, the owner opted to conduct business on a dinosaur. Too good to be true, is the thought. Additional investigation of the website corroborates the client's belief that it is indeed the predictable candidate hosting some of my copyrighted photographs. A site builder that no longer exists, no longer receives updates, but it is hosting a business? Since the website is vulnerable as it hosts thousands of photos, this is cakewalk, no, it is the photo infringement site of the year. Besides, there is no way that the disorganized Neanderthal can account for all the photos. Yes, Virginia, there is a photo copyright lotto.
 
Resembling a bank from the 1800s, and reminiscent of a scene from Butch Cassidy and the Sundance Kid, the client and attorney agree on a full-scale assault of epic proportion with photo copyright infringement accusations and demands. The client, surpassing prior damage demands, presses infringement damages to the zenith. And after the attorney tweaks and anoints it, the letter is transmitted to the target.
 
Believing that the archaic business, alias target, is less than status-quo and that it will succumb to the path of least resistance by forwarding the demand letter to its insurer, high fives are exchanged between client and attorney believing that another rushed, negotiated settlement is nigh. The copyright holder, turned professional client, also assumes that the disorganized business and its website has an employee retention crisis. Perhaps a disgruntled employee made my damages sweeter; nonetheless, it is Miller time after another day as usual. While the demand settlement deadline nears, the client contacts his attorney for the standard update on the amount deposited in the account from the Neanderthal. No settlement check is the news. But the copyright holder thinks that the infringer has a rather discombobulated business model after all, so he takes a chill pill and continues to wait.
 
During the ten days leading to the deadline to pay the demand of $50,000 to a specific address or (else) take your chance in federal court facing statutory damages of at least $150,000, plus attorney's fees and court costs, the website owner, stunned, prepared her defense.
 
 
In the demand letter the attorney had accused her by name, and also as owner of the business website, of willful copyright infringement (very serious accusation) by intentionally altering and removing the client's copyright marks and then placing the few photographs on her business website, aka Neanderthal. But included in the demand letter the client committed some colossal blunders: he forwarded to the accused each of the copyrighted photographs with their respective large, obtrusive watermarks on the center of each photograph, and also sent screenshots of each of the (so-called) infringer's pages that contained the client's photographs, but absent the large watermarks.
 
But technology is a two-edged sword, because the accused had possession of facts indicating exactly how the photographs appeared, how they looked, on the dates that both parties uploaded their photographs and when the watermarked photos initially appeared on the internet. The accused accessed court and other public records, discovering past copyright infringement lawsuits filed by the client. Now there were more questions than answers. So public records as well as the client's professional websites revealed many facts: education; employment; computer expert (PhDs) in fields of website and cyber security (etc); professional photographer (published); creator of photography software, enhanced security applications, and watermark software program. See also I Received the Photograph Copyright Extortion Letter, Help!
 
The preceding example, even when infringement occurred, would subject the copyright holder to substantial risk during litigation in a US district court, which is the only court that may decide the case and fair use under Section 107 of the US Copyright Act. Counsel for the client should advise against litigation for obvious reasons. If it proceeds, counsel for the defense should immediately plead copyright misuse as affirmative defense (and others), and also seek discovery of all communications by the copyright holder (plaintiff) relating to the copyright and license agreements to non-parties. The court could decide during discovery that based on unreasonable conduct of the copyright owner, including abusive or improper conduct, it bars enforcement of the copyright, even when the defendant is not a victim of the misuse. So the outcome could be rather unpleasant, as well as costly, for the plaintiff.

Falsely Accused of "Willful Copyright Infringement": The Broken Neck and Tort Claims
 
Always consult an attorney for legal advice before making any decision.
 
Disproving Copyright Infringement and How to Counterclaim with Tort Claims.
 
"...[I]t is established that the rights holder had copyrights with the US Copyright Office in 2004, but according to the timeline of events and considering the professional expertise of the rights holder in the fields of computer security, photography, photography software and copyright protection software programs, the rights holder attempted to defraud Mr. John Doe 'intentionally' in 2014."
 
 
The tort of intentional infliction of emotional distress has four elements: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. Note that (1)  the word or permits an alternative. Cornell University Law School.
 
Copyright infringement is a civil offense under United States Code Title 17 Chapter 5, but USC Title 17 Chapter 5 506 makes "willful copyright infringement" a criminal offense. Guidelines for sentencing the infringer include imprisonment from 1 to 10 years, which is to be served in a federal petitionary. Title 18 Part I Chapter 113 2319.
 
In a case where the copyright owner sustains the burden of proving, 17 U.S. Code 504 (c) (2), and the court finds that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under Section 107, US Copyright Act.
 
Example
John Doe owns a noncommercial, personal educational research only website and receives a copyright infringement demand and settlement letter from an attorney representing a client who has accused Mr. Doe of "clearly committing willful copyright infringement by altering and removing the copyright watermarks from 6 photographs, claiming his own copyright of the 6 photographs, and falsifying copyright management information." But the attorney allows the guilty infringer, Doe, to make things right if he agrees to the following:
 
"Our client is willing to settle claims against you immediately if you send certified funds in the amount of $30,000 payable to XXXXXXX within ten (10) days of your receipt of this letter." The letter continues by stating that "the offer does not reflect the damages that our client 'can and will seek' in a court proceeding, including attorney's fees, and the maximum available damages under the law of $150,000."
 
After Doe read the letter he is overwhelmed by the outrageous claims and in an attempt to commit suicide he runs through his 3rd floor apartment and jumps, crashing through the two glass windows, and falls to terra firma thus breaking his neck and paralyzing him for life.
 
Does Doe have basis for any claim against the client? Does he need to prove that he is innocent of willful copyright infringement to make any well-founded claim? The answer is yes and no. But in Doe's example of having received a letter accusing him of willful copyright infringement, the accusation(s) will become crucial to any tort claim and damages
 
Intentional infliction of emotional distress
The most frequently used definition for intentional infliction of emotional distress (IIED) is "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for that emotional distress and for any bodily harm that results from it." In other words, if a defendant intentionally does something truly awful to a plaintiff, the plaintiff can sue for IIED and recover damages simply for his or her emotional pain and suffering. If the severe emotional distress also makes the plaintiff ill or causes some other physical problem, the plaintiff can recover damages for that harm as well. ALLLAW.COM.
 
The plaintiff in an intentional infliction of emotional distress must prove that the defendant intended to commit the act that led to the plaintiff’s harm, but does not need to prove that the defendant specifically intended to harm the plaintiff: what he or she must prove is that the harm was certain or substantially certain to result from an act that the defendant intentionally committed. ID.
 
The conduct complained of must be intentional or reckless'; second, 'the conduct must be so outrageous that it is not tolerated by civilized society'; and third, 'the conduct complained of must result in serious mental injury. ID.
 
Because of the greater level of wrongdoing involved, intentional torts are generally punished more severely than other civil wrongs, and the same acts are frequently grounds for a criminal prosecution. For someone who successfully sues and wins an intentional tort case, broad damage awards, including punitive damages, are available. ID.
 
John Doe's family has retained two law firms: one specializing in Internet Property Law in Internet Trademark and Copyright, and the other specializing in Personal Injury and Intentional Tort.
 
During discovery it is established that the rights holder is an accomplished professional and expert in the fields of computers and photography: PhDs., credentials, licenses, certifications, professional affiliations and associations, employment, publications, qualifications, experience, acknowledgements, creator of photography software, creator of enhanced security applications and creator of photograph watermark software program.
 
It is established that the copyright holder is an expert in the fields of computers and photography, but has he/she used professional expertise intentionally or recklessly in an attempt to defraud Doe? Did the rights holder make false claims, or exaggerated or misleading accusations?
 
It is a federal offense to mislead or defraud an infringer by: unfairly threatening infringement penalties that exaggerate or misstate the law; or adds copyright marks, such as large watermarks, on photographs after the infringer's use; or falsely accuses defendant of "willful copyright infringement"; or utilizes any devices to add copyright protection systems subsequent to infringer's use; or when there is lack of originality; or when copyright misuse bars enforcement of the copyright; or when the copyright holder sends a misleading statement(s) about infringement penalties; or the basis of the claimed copyright is questionable conduct.
 
While counsel is preparing for litigation, Doe's family was performing its own due diligence and placing the following information in a binder for the law firms:
 
Print the rights holder and attorney's demand letter(s) and the pages of Doe's website indicating the photos. Make copies of text messages and voice mails. Make copies of the attorney's website with contact information. Research the copyright registration numbers on the demand letter and try to verify their veracity, but it may prove difficult because photos are often times placed on discs, which may or may not contain the infringed photos. Begin researching public records and verify that the client has retained the named attorney. Search the client's full name through public records, including federal and state court records. The public records may reveal a trend of filing past infringement claims and their outcomes, as well as other pertinent information. Go to the client's website(s) and search for the photos that Doe is accused of stealing. You may use Firefox and IE browsers to locate detailed information on each photo. Right click on each photo, scroll to properties, then details. Scroll down to sections containing date taken, date acquired, and copyright, and if you see data it was manually entered, so don't take it as fact.
 
To establish a timeline of facts for each alleged infringement act, run and print the following pertinent information from your own website and the rights holder's site: Each photo.jpg, photo.gif, etc., on each page, each subdomain, each website, each third party site, including commercial sites, and principal domain of the rights holder through Whois and Whois (options), Wayback MachineWayback Machine (Archive), Wayback Machine FAQ Archive Today, Snagit, Copyright.gov, Alexa, and Quantcast.
 
Doe's family, with assistance from experts, established the fact that John Doe placed each of the stated stolen photos on his personal website in 2007. They printed the facts for each page and photo. While the family discovered that the rights holder claimed 2004 as the copyright date by manually entering the data in the copyright section of each photo, it is also discovered that the rights holder initially uploaded the photos to the internet in 2007, but in 2012 added large copyright watermarks to each photo with the year 2004. In 2014, moreover, the rights holder filed charges against Doe stating that he intentionally removed and altered the copyright and respective large watermark for each stolen photo, and falsified copyright management information.
 
But oddly, it is established that the rights holder had copyrights with the US Copyright Office in 2004, but according to the timeline of events and considering the professional expertise of the rights holder in the fields of computer security, photography, photography software and copyright protection software programs, the rights holder attempted to defraud Mr. John Doe "intentionally" in 2014.
 
The Doe family also established the fact that when each photo on Doe's website was right clicked, he had not entered or altered any properties containing date taken, date acquired, and copyright. That accusation by the client was also false. The copyright notices were absent when Doe posted the photos (reducing size; lower resolution, but not interfering with the integrity of each photo) on his noncommercial educational research site in 2007, but the rights holder had retained an attorney who initiated copyright infringement bombing on unsuspecting infringers in 2014. In the demand letter the rights holder accused Doe, the site owner, of willful copyright infringement (criminal and civil implications) by intentionally altering and removing the copyrights and watermarks from each photo, falsifying copyright management information, and claiming the photos with his own (Doe) copyright marks. The family took snapshots of all the information and placed it in the binder.
 
The client had demanded $30,000 in 10 business days or face $150,000 in statutory damages, plus attorney's fees and court costs. The family of the accused had sought counsel and performed their due diligence well. Next, the accused infringer files the tort claim against the rights holder.
 
So, has the rights holder turned defendant committed conduct that goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized community? Yes.
 
Has the defendant committed intentional infliction of emotional distress?  Review the criteria for IIED: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. Note that the word or permits an alternative.
 
Yes, the defendant is liable, and because he used his professional and expert knowledge in both fields intentionally and recklessly in an attempt to defraud John Doe, broad damages are awarded, including substantial punitive damages. And to avoid being remiss: the defendant now faced criminal prosecution.
 
If you or a loved one are ever falsely accused of willful copyright infringement resulting in intentional infliction of emotional distress, contact an experienced law firm for advice.

What is Copyright Misuse as an Affirmative Defense?

Copyright Misuse as an Affirmative Defense
 
The copyright misuse doctrine is an equitable defense against a copyright infringement claim, based on the abusive or improper conduct of the copyright owner in enforcing the copyright. The defense should plead copyright misuse as affirmative defense and also seek discovery of all communications by the copyright holder (plaintiff) relating to the copyright and license agreements to non-parties; copyright misuse bars enforcement of the copyright, even when the defendant is not a victim of the misuse.
 
Copyright misuse is an equitable defense against copyright infringement in the United States based on the unreasonable conduct of the copyright owner, thus allowing copyright infringers to avoid infringement liability if the copyright holder has engaged in abusive or improper conduct in exploiting or enforcing the copyright. Copyright misuse is comparable to, and draws from precedents under, the older doctrine of patent misuse, which dates back to the early years of the 20th century and derives from the more general equity doctrine of "unclean hands", which bars a party from obtaining equitable relief (such as an injunction) against another when the party has acted improperly (though not necessarily illegally).
 
"Copyright misuse” is an affirmative defense, which must be pled and proven by an accused infringer. The copyright misuse doctrine bars a plaintiff’s recovery for copyright infringement if that copyright is used unlawfully. Alcatel USA, Inc., 166 F.3d at 792. In the Fifth Circuit, copyright misuse was a valid defense against infringement claims. DSC Communications Corporation v. DGI Technologies, Inc., 81 F.3d 597, 601(5th Cir.1996). 
 
Copyright misuse is not a defense recognized in the provisions of the federal Copyright Act, but is instead purely founded in federal case law, beginning with a 1990 case in the Fourth Circuit and onward. Similar to patent misuse, the defense arises out of a copyright holder’s attempts, whether successful or not, to unfairly claim rights broader than those granted by the copyright itself.
 
The affirmative defense of “copyright misuse” has recently been clarified, broadly recognized, and fairly well established. A successful defense of misuse of copyright bars a culpable plaintiff from prevailing on an action for infringement of the misused copyright. “Copyright misuse” is an affirmative defense, which must be pled and proven by an accused infringer.
 
“An affirmative defense is subject to the same pleading requirements as is the complaint.” Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). Thus, an affirmative defense need only recite a short and plain statement of the claim showing that the pleader is entitled to relief.  FED. R. CIV. P. 8(a)(2). It must be pled with enough specificity to give the plaintiff “fair notice” of the defense being advanced. Woodfield, 193 F.3d at 362.  In some instances the mere naming of the defense will suffice. Id.
 
Unclean Hands as an Affirmative Defense
 
Unclean Hands is an Affirmative Defense. A well-proven unclean hands defense “will bar enforcement of a valid copyright when a plaintiff commits wrongdoing ‘of serious proportions.’” Saxon v. Blann, 968 F.2d 676, 680 (8th Cir. 1992). The defense is available only where the plaintiff’s misconduct is directly related to the merits of the controversy between the parties. Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980). Additionally, an unclean hands defense can prevent the award of equitable relief. Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772, 794 (5th Cir. 1999). As an affirmative defense, unclean hands can absolve the defendant of liability from both the legal claims of copyright and trademark infringement and the equitable claims for injunctive relief.

Defense against photo copyright attorneys
Sunken Road at Battle of Fredericksburg.jpg
The Struggle for Sunken Road at Fredericksburg, Virginia

How do I know if the Client and the Photo Copyright Attorney are Bluffing?
 
Always consult an attorney for legal advice before making any decision.

If you have received more than one settlement or demand letter from the rights holder's attorney it is an obvious sign of BLUFFING.
 
In the following scenario the confidant attorney representing the rights holder has mailed letters on three occasions, sent 4 emails, and attempted to establish contact by telephone leaving a demand notice on voicemail. Yes, you read correctly: voicemail has now relegated the individual with a J.D. (sacked with $250,000 in student debt) to the position of another annoying as hell bill collector.
 
The initial certified letter states that the (alleged) infringer is guilty of multiple rights violations, and adds a swift settlement demand of $30,000 to be paid in 10 business days or be liable for $150,000 in statutory damages plus attorney's fees in Federal court. The initial settlement letter is quick to threaten that a Federal lawsuit is to follow, but subsequent demand letters and voice mails are absent such rhetoric. Subsequent demand letters generally lack deadlines and for obvious reason. Since the initial 10 business days have already passed without any action, why would anyone believe in a second deadline? The follow-up letters sent by the attorney are filled with nicely worded paragraphs stating how you are guilty of copyright infringement, but need to contact the attorney immediately to discuss a mutually agreed upon solution, which is another way of saying let's make a deal, or perhaps a poor attempt to "copy" the style used by debt collectors who always seem to call at dinner time or on your birthday.
 
But since the rights holder has indicated clearly that the amount of monetary damages need only be decided, but continues to send settlement offers, it should be obvious to concerned parties that said guilty allegations are false and baseless, or the rights holder would have already filed in Federal court instead of making several demands for settlement. Continued communication from the attorney or rights holder should prompt the alleged infringer to consult an attorney for advice, because numerous letters and other means of communication may result in a lawsuit filed against the rights holder.

Examples of Copyright Misuse
 
Always consult an attorney for legal advice before making any decision.

Example
Plead Copyright Misuse as Affirmative Defense, or apply fair use according to Section 107 of the US Copyright Act.
 
In the following example, the copyright holder, the plaintiff, added large copyright marks, known as watermarks, on or near the center of all the photographs at a date after the defendant had already used the photographs on his/her noncommercial personal website, which is for educational research only. The plaintiff's attorney sent communications accusing the defendant of willful copyright infringement and demanded a set settlement amount. The defendant plead "Copyright Misuse" as an affirmative defense and proved that the plaintiff had in fact placed his copyright marks on the exact photographs subsequent to alleged infringer's use.
 
There is no willful infringement, because the copyright holder committed Copyright Misuse it “will bar enforcement of a valid copyright when a plaintiff commits wrongdoing ‘of serious proportions.’” Saxon v. Blann, 968 F.2d 676, 680 (8th Cir. 1992). The defense is available only where the plaintiff’s misconduct is directly related to the merits of the controversy between the parties. Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980). Additionally, similar to unclean hands defense, it can prevent the award of equitable relief. Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772, 794 (5th Cir. 1999). As an affirmative defense, it can absolve the defendant of liability from both the legal claims of copyright and trademark infringement and the equitable claims for injunctive relief.
 
Your attorney should seek maximum damages against the client during redress. If the copyright holder is proven to be a professional and expert in the fields of computers and photography -- with PhDs., credentials, licenses, certifications, professional affiliations and/or associations, employment, publications, qualifications, experience, acknowledgements, etc. -- it should be introduced during litigation.
 
When did the defendant allegedly put each stated photograph on said website?
From which websites, the urls, did the defendant allegedly take each photograph?
When did the plaintiff place the large copyright mark, aka watermark, on each stated photograph?
When did the plaintiff place each stated photograph with its respective large copyright mark on the internet?
With or without the copyright mark, when did the plaintiff initially place each stated photograph on the internet?
When did the plaintiff initiate technological copyright protection systems on each stated photograph?
When did the plaintiff put the large copyright mark on or near center of each said photograph that his/her attorney transmitted to the defendant with the accusation of willful copyright infringement by intentionally altering and removing the copyright mark from each photograph?
 
Whereas the dates may be established for each stated photograph placed on the website of the fair user, so may the dates be established that the copyright holder subsequently placed each copyright mark on or near center of each stated photograph, so may the dates be established that the copyright holder uploaded each stated photograph with its respective copyright mark to said websites, so may the dates be established that the copyright holder applied technological copyright protection systems to each photograph. See also Copyright Misuse.
 
The preceding example, even when infringement occurred, would subject the copyright holder to substantial risk during litigation in a US district court, which is the only court that may decide the case and fair use under Section 107 of the US Copyright Act. Counsel for the client should advise against litigation for obvious reasons. If it proceeds, counsel for the defense should immediately plead copyright misuse as affirmative defense (and others), and also seek discovery of all communications by the copyright holder (plaintiff) relating to the copyright and license agreements to non-parties. The court could decide during discovery that based on unreasonable conduct of the copyright owner, including abusive or improper conduct, it bars enforcement of the copyright, even when the defendant is not a victim of the misuse. So the outcome could be rather unpleasant, as well as costly, for the plaintiff.
 
Example
The defense should plead Copyright Misuse as affirmative defense whenever facts permit.
 
There is more than one way to beat the copyright infringement lawsuit. In the previous examples we discussed fair use under Section 107 as well as disproving willful copyright infringement. If willful copyright was dismissed because the plaintiff, the copyright holder, was found to have added the copyright marks on the photographs (along with copyright protection systems) after your use of the photographs on your website, then your attorney should affirm copyright misuse as your defense and seek redress.
 
In the example the copyright holder who, among several accusations, communicated accusations to the defendant by claiming willful copyright infringement of photographs. During discovery it is established that the copyright holder, the plaintiff, is a professional and expert in the fields of computers and photography -- with PhDs., credentials, licenses, certifications, professional affiliations and associations, employment, publications, qualifications, experience, acknowledgements, etc. -- it should be introduced during litigation and future proceedings, and the copyright holder may be held to a higher standard.
 
The copyright holder is an expert in the field and is utilizing his/her professional expertise for advantage prior to and during the copyright infringement lawsuit. The defense pleads copyright misuse as an affirmative defense and facts are established that the defense has communicated, claimed, and stated false, exaggerated or misleading accusations to the infringer. The defense had successfully pled copyright misuse as an affirmative defense with facts permitting. While seeking redress, counsel should consider the copyright holder's expert knowledge, consider all damages, and establish jurisdiction.
 
Example
Defense should plead Copyright Misuse as an affirmative defense when facts permit, including but not limited to:
 
Attempts to mislead or defraud an infringer by unfairly threatening infringement penalties that exaggerate or misstate the law; or adds copyright marks, such as large watermarks, on photographs after the infringer's use; or falsely accuses defendant of "willful copyright infringement"; or utilizes any devices to add copyright protection systems subsequent to infringer's use; or when there is lack of originality; or when copyright misuse bars enforcement of the copyright; or when the copyright holder sends a misleading statement(s) about infringement penalties; or the basis of the claimed copyright is questionable conduct. While seeking redress, counsel should consider the copyright holder's expert knowledge, consider all damages, and establish jurisdiction.
 
The preceding scenario, even when infringement occurred, would subject the copyright holder to substantial risk during litigation in a US district court, which is the only court that may decide the case and fair use under Section 107 of the US Copyright Act. Counsel for the client should advise against litigation for obvious reasons. If it proceeds, counsel for the defense should immediately plead copyright misuse as affirmative defense (and others), and also seek discovery of all communications by the copyright holder (plaintiff) relating to the copyright and license agreements to non-parties. The court could decide during discovery that based on unreasonable conduct of the copyright owner, including abusive or improper conduct, it bars enforcement of the copyright, even when the defendant is not a victim of the misuse. So the outcome could be rather unpleasant, as well as costly, for the plaintiff.
 
Defense may initially consider fair use under Section 107 of the US Copyright Act, but when facts permit plead copyright misuse as an affirmative defense. But in the preceding examples, defense should consider all damages while establishing jurisdiction.
 
Seek an attorney experienced in Internet and Copyright Law, or Internet Property Law in Internet Trademark and Copyright, or Internet Intellectual Property Law, because you need a strong defense against copyright accusations and claims.

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