Re: [WikiEN-l] More fair use image overreaching - WikiEN-l

David Gerard

4 Mar 4 Mar

2:12 a.m.

New subject: More fair use image overreaching

On 03/03/2008, WJhonson(a)aol.com <WJhonson(a)aol.com> wrote:

By this I assume BC means a "cease and desist". I believe this is de facto false. While it is true a lawyer could file a suit for anything, any case being brought, without having made any preliminary action to correct the issue, would be, imho, thrown out of court. The first thing a judge looks at is, "have you attempted to correct this out of court" ? That is did you make any attempt to settle this without wasting the court's time ? Which is why documenting what you did is so important to winning your case. If you did nothing, like for example, not even informing the offending party that there was a correctable offense, then your case won't win. That's my opinion.

Indeed. In civil court battles, your level of civility does gain you points. That Wikimedia takes a proactive approach to ferreting out possible copyright violations - and BetacommandBot is a perfect example of how we take proactive care with this stuff - and always tries to fix problems first would in fact get us a long way in the event of a real fight. So far we've yet to have a real fight. Cross fingers ... - d.

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Ray Saintonge

5:29 a.m.

New subject: More fair use image overreaching

geni wrote:

...

On 03/03/2008, WJhonson(a)aol.com <WJhonson(a)aol.com> wrote:

Just to address the "lawyers are not required to send a 'takedown' notice" By this I assume BC means a "cease and desist". I believe this is de facto false. While it is true a lawyer could file a suit for anything, any case being brought, without having made any preliminary action to correct the issue, would be, imho, thrown out of court. The first thing a judge looks at is, "have you attempted to correct this out of court" ? That is did you make any attempt to settle this without wasting the court's time ?

Unfortunately they can demand money as part of their attempt to settle out of court. A few hundred dollars is not unusual (see people moaning about picscout). A few hundred per pics so say about a million for 2K images. Of course that is rather less than you risk ending up paying if you take is to court.

This presupposes that stupidity is a herd phenomenon. If the demand for a settlement is not made in a proper way they can be charged with extortion. Using your figures, one needs to assume that 2,000 cases will be launched at virtually the same time. Otherwise, really losing a small handful of cases would have led to behaviour modification that would have forestalled the others. Ten cases would strrike me as already beyond the limits of reality. 10 x $500 = $5,000 at most! We don't even want to lose that many, but we have to consider the possibility in the course of analyzing risks. If the costs of managing the risk are going to be far in excess of the estimated risk, the risk is easily worth taking. Ec

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Ray Saintonge

1:13 p.m.

New subject: More fair use image overreaching

geni wrote:

...

On 03/03/2008, Ray Saintonge <saintonge(a)telus.net> wrote:

geni wrote:

On 03/03/2008, WJhonson(a)aol.com <WJhonson(a)aol.com> wrote:

Just to address the "lawyers are not required to send a 'takedown' notice" By this I assume BC means a "cease and desist". I believe this is de facto false. While it is true a lawyer could file a suit for anything, any case being brought, without having made any preliminary action to correct the issue, would be, imho, thrown out of court. The first thing a judge looks at is, "have you attempted to correct this out of court" ? That is did you make any attempt to settle this without wasting the court's time ?

Unfortunately they can demand money as part of their attempt to settle out of court. A few hundred dollars is not unusual (see people moaning about picscout). A few hundred per pics so say about a million for 2K images. Of course that is rather less than you risk ending up paying if you take is to court.

This presupposes that stupidity is a herd phenomenon. If the demand for a settlement is not made in a proper way they can be charged with extortion. Using your figures, one needs to assume that 2,000 cases will be launched at virtually the same time. Otherwise, really losing a small handful of cases would have led to behaviour modification that would have forestalled the others. Ten cases would strrike me as already beyond the limits of reality. 10 x $500 = $5,000 at most! We don't even want to lose that many, but we have to consider the possibility in the course of analyzing risks. If the costs of managing the risk are going to be far in excess of the estimated risk, the risk is easily worth taking.

Unfortunately the conglomeration of the media is such that it is quite easy to end up in a situation where you hold over 1000 images belonging to one company. Thus ten cases could trivially be 5K images.

Ah! But then, given our usual practice of prompt response to complaints we could argue that there was no excuse for them to wait until there were 1000 images, which were perhaps uploaded over an extended period of time. Surely a rights owner with so many images must have a means of detecting copyvios more efficiently, unless he were trying to sandbag us by letting the violations accumulate. That kind of behaviour would not impress a judge. Album or book covers are likely categories where we would have large numbers of images. Does it not seem strange that given the number of album coves illustrated on the net there is a complete absence of cases about album covers from an industry that is so famously litigious about copying its music? Maybe there's an unspoken industry standard. Ec

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geni

5 Mar 5 Mar

2:14 a.m.

New subject: More fair use image overreaching

On 04/03/2008, Ray Saintonge <saintonge(a)telus.net> wrote:

...

Ah! But then, given our usual practice of prompt response to complaints we could argue that there was no excuse for them to wait until there were 1000 images, which were perhaps uploaded over an extended period of time. Surely a rights owner with so many images must have a means of detecting copyvios more efficiently, unless he were trying to sandbag us by letting the violations accumulate. That kind of behaviour would not impress a judge.

At the moment they would probably have to employ picscout and that would be expensive. Screenshots are even more problematical

...

Album or book covers are likely categories where we would have large numbers of images. Does it not seem strange that given the number of album coves illustrated on the net there is a complete absence of cases about album covers from an industry that is so famously litigious about copying its music? Maybe there's an unspoken industry standard.

No the reason is that most of the sites with significant numbers of album covers on are things like iTunes which music companies are hardly going to object to (well no more so than normal anyway) or took down the images rather than take things to court (CDCovers.cc): http://www.afterdawn.com/news/archive/3608.cfm -- geni

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geni

4:10 a.m.

New subject: More fair use image overreaching

On 04/03/2008, Ray Saintonge <saintonge(a)telus.net> wrote:

...

It seems as though they were doing more than just hosting images of album covers. Ec

Not run across any evidence that they were and judging by comments by various people at the time it seem unlikely that they were doing anything else. "audio covers" simply means covers of all forms of sound media rather than say simply 8-tracks or records. -- geni

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George Herbert

4 Mar 4 Mar

5:36 a.m.

New subject: More fair use image overreaching

On Mon, Mar 3, 2008 at 10:26 AM, geni <geniice(a)gmail.com> wrote:

...

On 03/03/2008, WJhonson(a)aol.com <WJhonson(a)aol.com> wrote:

Just to address the "lawyers are not required to send a 'takedown'

notice"

By this I assume BC means a "cease and desist". I believe this is de

facto

false. While it is true a lawyer could file a suit for anything, any

case

being brought, without having made any preliminary action to correct

the issue,

would be, imho, thrown out of court. The first thing a judge looks at is, "have you attempted to correct

this out

of court" ? That is did you make any attempt to settle this without

wasting

the court's time ?

Unfortunately they can demand money as part of their attempt to settle out of court. A few hundred dollars is not unusual (see people moaning about picscout). A few hundred per pics so say about a million for 2K images. Of course that is rather less than you risk ending up paying if you take is to court.

Under the DMCA, the WMF is plausibly a service provider, as we don't create the content, and as such our liability for damages prior to notification is zero. An attorney could ask us for anything: "Take down this and that images which are owned by my client. And we want a Pony." They aren't legally entitled to the Pony, no matter how nicely they ask for it. For the WMF, damages would start after a legally compliant takedown or equivalent was received; given that, in any case with an apparently legal takedown notice we take it down, the damages are going to be nil. -- -george william herbert george.herbert(a)gmail.com

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