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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.
Use in a Report, Paper, or School Project
Proper citation will depend upon what your teacher requires.
Citation will likely be applied in a footnote or bibliography. There
are many types of citation format such as University of Chicago
style or MLA style, and you should be able to write a citation from the following information: The website title is Thomas
Legion, located at www.thomaslegion.net, written by Matt Parker, was first
published to the internet on August 27, 2005, and accessed on (insert the date that you accessed the website here).
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 |
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| 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
The distinction between what is fair use and what is infringement in a particular case will not always be
clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without
permission. Fair use is subjective and may only be decided in federal court by
a judge. Because subjective judgments involve personal morals, belief
of good or bad, sense of right or wrong, it could factor into determining fair use in the infringement claim. Does usage
capture the essence or "the heart" of a copyrighted work when publishing under "Fair Use, or what if the copyrighted
material involves questionable conduct by the copyright holder, these are just a few of many questions that are discussed in this
section.
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
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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?
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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 |
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| 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.
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.
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.
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
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 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.
Her website is not a business and there are neither employees nor insurance to confront the onslaught. The
website owner is the webmaster -- the chief cook and bottle washer -- and her template was Section 107 of the US
Copyright Act, because the objective was to create and maintain a noncommercial educational site according to fair use only.
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."
"Conduct that goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable
in a civilized community will make a defendant liable for intentional infliction of emotional distress." ALLLAW.COM.
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 Machine, Wayback 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 |
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| 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.
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
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.
Credits:
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