Vermont business owner says she was hit by ‘copyright troll’

Vermont Woods Studios owner Peggy Farabaugh stands outside the more than 200-year-old home that will host her expanding furniture business. Photo by Mike Faher/Brattleboro Reformer

Vermont Woods Studios owner Peggy Farabaugh stands outside the more than 200-year-old home that will host her expanding furniture business. Photo by Mike Faher/Brattleboro Reformer

Editor’s note: This article is by Bob Audette of the Brattleboro Reformer, in which it was first published June 16, 2014.

BRATTLEBORO — A business owner who has successfully relied on her website to sell fine furniture made in Vermont is finding out the Internet also has a dark side.

“Saturday, (May 24) the Windham County Sheriff Came to my house and served me a copyright infringement lawsuit,” wrote Peggy Farabaugh on vermontfurnitureblog.com. She said she was being sued because a photograph that was used to illustrate the sale of a dining set to a customer in Hawaii, and that she thought was available for reuse through a site that offers free downloads, was copyrighted by a Hawaiian photographer.

“But it was invisibly tagged,” wrote Farabaugh, who told the Reformer that she had been advised by her attorney not to speak with the media. However, said Farabaugh, the Reformer was free to use any material on her blog post.

“On May 5, 2012, I received a letter from Carolyn Wright and Cindy Hsu at PhotoAttorney.com demanding $9,500 for use of the photo,” wrote Farabaugh, who, with her husband, Ken, owns Vermont Woods Studios. “If I refused to pay up within 10 days, they said VKT might sue me for $150,000.”

By utilizing a Google search with the terms VKT and “copyright infringement,” the Reformer was able to determine VKT is Vincent K. Tylor, who has filed a number of such lawsuits over the past few years.

“I immediately took the photo down and called VKT to explain,” wrote Farabaugh. “He refused to talk to me, insisting that all correspondence go through PhotoAttorney.com. I called and emailed PhotoAttorney.com several times trying to reach a fair settlement. We negotiated for months and eventually they went away.”

Vermont Woods Studios in Vernon works with Vermont craftspeople to market and sell their furniture online and at Stonehurst, a gallery and showroom in Vernon.

On April 25, Farabaugh received a letter from Woolf Gafni & Fowler, in Los Angeles, representing Tylor and demanding $12,000 by May 5. According to the letter, Tylor had been offered between $150 and $300 by Vermont Woods, however Tylor’s licensing rates are five to 10 times that amount. If the $12,000 is not paid, claims the letter, Tylor “may elect to obtain statutory damages of up to $30,000 for each infringement or up to $150,000 for each willful infringement.”

“Vermont Woods Studios has presented no real defenses to their copyright infringement precluding such an award,” noted the letter.

Following receipt of the letter, Farabaugh contacted Adam Gafni.

“I … discussed the facts and explained that we are a small company that cannot afford a $12,000 fee nor did I think it appropriate,” she wrote on her blog. “I asked him to drop the lawsuit. He told me to make him an offer to settle and I said I’d been advised not to settle. At that point, he accused me of extortion, said ‘see you in court — have a nice day’ and hung up the phone. VKT filed a $150,000 lawsuit shortly thereafter.”

According to Mitch Stoltz, a staff attorney with Electronic Frontier Foundation, Farabaugh did what many people do, and what EFF recommends you never do — talk to a plaintiff’s attorney.

“They will try to trap you into revealing information that can be used against you in a court of law.”

Matthew Chan, who set up ExtortionLetterInfo.com, was not surprised when he learned of Farabaugh’s initial reaction.

“Most people aren’t copyright savvy, don’t know how to defend themselves and don’t know how the psychology of these scams works,” said Chan. “They rely on scare tactics. That’s why the scam often works.”

Chan, who lives in Columbus, Georgia, set up his website in 2008 after he was received what he calls “an extortion letter” from Getty Images for copyright infringement. But different from Farabaugh’s case, Chan was never sued and he never settled.

“I started ELI for myself, not for other people. As my case wore on, more and more victims came forth. I decided to keep the website running for these cases.”

Shortly after he set up the website, he was joined by Oscar Michelin, an attorney who serves as legal adviser and provides legal guidance and legal education related to ELI’s mission.

Chan said he is very familiar with Vincent K. Tylor, who puts up images on free wallpaper sites that people can use for desktop savers. But if that image is used for any commercial purposes whatsoever, he said, then Tylor swoops in with a lawsuit.

“This insures that he has a steady stream of accidental infringements,” Chan said.

Copyright trolls are banking on when someone files a lawsuit, most people will pay it off, he said, but it’s important that the target of a copyright infringement suit not panic.

“Just because someone infringes, doesn’t make it criminal and just because there has been an infringement doesn’t mean there was a significant amount of damages,” he said. “Some of these infringements are probably worth $50 or $100.”

Stoltz recommends that anyone who receives a letter alleging copyright infringement should contact an attorney.

“Many of them do this work pro bono or for a reduced fee.”

However, not everyone hastens to contact an attorney when they are served with copyright infringement paperwork, Stoltz said.

“Some people choose to ignore it and wait until they are contacted by the troll or sued. Sometimes the trolls just go away. It’s a bit risky, but trolls don’t always have the resources to pursue everyone.”

Stoltz said that just in the past three years, more than 200,000 people have been targeted by copyright trolls. He said if a website doesn’t openly assert that a picture is free for use, you should consider it copyrighted and not use it for your own purposes.

A copyright doesn’t have to be registered to be legally binding, he said. But if it is, the law calls for damages that can be awarded by a judge or jury between $750 and $150,000 per work without the plaintiff having to prove any kind of harm.

“It’s a bullying tactic. Juries don’t tend to award $150,000, but because the amount is so high, they can use it as a scare tactic.”

Stoltz said Congress is considering ways to rein in copyright trolls, but the legislation is not as advanced as proposed legislation to deal with patent trolls.

“And judges have banned various abusive practices of the copyright trolling business model,” said Stoltz.

In the end of May, the federal appeals court in Washington, D.C., ruled copyright holders may not abuse the legal process to obtain the identities of thousands of Internet users. In this case, AF Holdings was seeking the identities of more than 1,000 Internet users who it claims illegally downloaded pornographic videos.

The court ruled that it is unfair to sue thousands of people at once in a court far from home based on nothing more than an allegation, according to EFF.

The EFF urges people who are being sued to contact their senators, representatives and attorney general and ask for their help.

In her blog post, Farabaugh wrote that it appears Tylor’s lawsuit will only be settled one way.

“Unfortunately, I guess we’re going to court — the last thing on earth any small business can afford to do,” she wrote.

Chan said it may not get that far, but Vermont Woods Studios needs to be patient.

“They’re going to have to play chicken with him,” he said.

Bob Audette can be reached at [email protected], or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.

Comments

  1. Judith Levine :

    Yes, this is the story of an honest mistake & an abuse of the copyright law, but it’s important to tell a balanced story. The “information wants to be free” people have made it impossible for the makers of intellectual property to earn a living. Writers, musicians, & photographers actually work to make what they make & deserve to be paid for it. Web publications take advantage of this “freedom” idea to ask contributors for content w/o paying them. It’s destroyed entire industries & livelihoods.

    • Karl Riemer :

      Thanks for adding this. Much online content IS free, in the sense that no compensation for dissemination is expected, but discerning which is that and which is not can be difficult without both a sharp eye and a willingness to see, not least because its status is sometimes deliberately obfuscated, as appears to be the case in this case. Once again we’re reminded that, as heady as the internet revolution seems, its expansion of possibilities appeals to all the same characters we remember from real life. Seemingly limitless connectivity and information availability doesn’t automatically inspire scruples or ethics in users; in fact, anonymity and physical distance emboldens those with a dearth of either. People who’d rather not work for a living can sometimes be surprisingly diligent and industrious, not to mention clever. That said, some diligent and industrious people who try hard to work for a living but find it impossible in the age of the internet without using the internet, discover that unscrupulousness is not the exclusive province of career criminals. Many people, maybe most people, seduced by the ease of doing so, take anything not nailed down if its online. Virtual misappropriation doesn’t FEEL like shoplifting.

  2. Pete Novick :

    Here’s a link to a useful explanation of the Fair Use Doctrine which appears on the US Copyright Office website:

    http://www.copyright.gov/fls/fl102.html

    Quoting from the website above, US law “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”

    As my dad told me growing up, you can’t fight a fire with fire, but you must fight a lawyer with a lawyer (of your own).

  3. Ken McPherson :

    I wonder if Peggy Farabaugh would mind if I stopped by and, say, took pictures of the furniture she is selling so that I could mass-produce duplicates. Or if she would call the police if I walked off with a piece because I mistakenly thought that furniture on display was being offered for free, as we often see on roadsides in Vermont? I would wager that she would be quick to call the police if we were to use her property by pitching a tent on the front lawn – yet she seems to feel free to use the property – physical or intellectual – of others without permission or compensation.

    IBM can be relentless is pursuing unauthorized use (or alleged use) of their intellectual property. Are they patent trolls – or strong protectors of their intellectual property, part of which they are currently apparently selling for $billions?

    I wonder if Vermont Digger would pursue legal action if I were to reproduce all of their content and sell ads on a competing website? Perhaps we could see a response from Digger?????

    As authors and documentary film producers, we have taken great pains to record every image we used and to insure that we compensated the owner if requested. This is standard practice among responsible creators of original productions.

    We also would be ready to send threatening letters to people who would purloin our intellectual property or use images that we have created without our permission or without compensation if we requested it.

    Furthermore, Getty Images is a totally respected image vendor. They have undertaken to bring together in one place a wide variety of images, including a portfolio of somewhat esoteric contents. If you look closely, you will see that network news shows frequently use, credit, and compensate Getty for images used onscreen. Getty Images is not a patent troll – just a company like many others who are trying to get reasonable compensation for the property they own

    However, the simple reality is that many people, including many in the social media world, are unaware when images are owned and not available for reuse without permission. Perhaps EFF and others could help by creating a campaign to help social media content creators understand their own responsibilities. Perhaps Digger could prominently display their guidelines with respect to these issues.

    (By the way, I have been impressed with Digger’s strict adherence to the fundamental – and in some cases more than fundamental – rules of attribution and fair use. Why not help your readers understand what those rules mean?)

    • Kelsey Eaton :

      Peggy’s case is not with Getty images. You must have misread the article. This case is involving a private photographer, Vincent K Tylor. A simple google search of his name reveals lack of credibility.

      • Martin McNeil :

        … and a simply Google search shows that you’re employed by Ms. Farabaugh, hence you blindly leaping to her defence.

        Did they not teach you about copyright law vis-à-vis the internet as part of your coursework for your qualification from Full Sail University? Probably not, being that it was an online course…

        • Kelsey Eaton :

          Yes, I do work for Peggy. I am not “blindly” leaping to her defense, but when a photo is published in a manner that makes it seem as though it is an open source photo, it is completely understandable why someone would use it. Yes, I understand copyright law but that doesn’t excuse your irrelevant comment(s).

          Sure, if you came into the showroom and picked up a piece of furniture “thinking it was free” like what we find on the side of the road, there would be a problem. But what if you actually found the furniture on the side of the road?

          Which is the point of my defense. If its found on the side of the road, and the artist seemingly put it there or doesn’t pick it up when he notices it, is it anyone else’s fault for eventually finding it?

          The case gets much broader when you take in the reputation of the photographer, the countless other suits he’s filed against businesses, and lack of protection over his photos and where they end up in the first place.

          • Martin McNeil :

            The “reputation of the photographer” appears to be a one-sided affair, as most opinions that seem to be bandied about online come from two groups of people

            a) Those whom have faced direct legal actions from the photographer

            b) Those whom have faced copyright claims from other parties

            In my experience, people only bleat and moan when they’re caught doing something they shouldn’t do… and your employer is no different in this regard.

            Like I said in an earlier post: Peggy Farabaugh has fallen foul of her own ignorance of the law. It *does not matter* how many times the photographer has sued other entities for infringement – he has *every right* to do so.

            If your employer feels aggrieved about the photograph she used supposedly being “free” for the taking, she’ll get to argue her case in court… though don’t be at all surprised if the photographer is also able to show that they’ve made every attempt possible to have unauthorised uses of their work scrubbed from the internet… which would naturally include legal actions where necessary.

            So now your employer finds herself going to court, which she claims is “the last thing on earth any small business can afford to do”

            I guess that she now knows that she wasn’t being ‘scammed’ when the photographer’s attorney first made contact and, with that in mind, she’ll likely find out the hard way that his offer to amicably settle the matter out-of-court was actually her best day.

  4. Patrick Monroe :

    This just proves the old adage that 99% of lawyers give the others a bad name

  5. Martin McNeil :

    Ms. Farabaugh has fallen foul of her own ignorance;

    By taking a short-cut in terms of lifting an image from the internet to use for her own purposes – which, by her own admission, was commercial in nature (her use was to aid in the sale of goods to a customer) – she’s rightly being pursued for copyright infringement.

    Up until a few years ago, finding out that someone had used one of your photographs online without permission was close to impossible – or at least very expensive, as there were paid for services you could subscribe to which would track down your shots.

    Now, in the space of a few mouse clicks, services such as TinEye and even Google’s own Search by Image give creators the ability to track down errant uses.

    You could attempt to debate the morality of the actions of both the plaintiff and defendant all day long but, when reduced to the letter of the law, it’s really quite simple:

    Ms. Farabaugh broke the law as it is currently codified in 17 USC – and the photographer is enforcing their rights according to those laws that are on the books.

    Whether she knew that she was breaking the law or not doesn’t come into play… ignorance of what is legal or not has rarely, if ever, constituted a valid line of defence.

    In the event that Ms. Farabaugh loses (which, if the information in the article is factual, is likely) and winds up having to pay more than the $9,500 settlement offer that the artist originally tabled, then it will be her own ignorance and hubris that causes her to go out of business.

  6. lucia :

    Martin McNeal,
    Indeed it is easy to discover that one’s images are being used on various site. Consequently, it ought to be easy for Vincent K Taylor to discover that this particular images is being used at 4share.com a heavily visited site which encourages people to ‘download’ the high resolution versions of the image. It appears 4share.com has been making that image available for over 4 years ( since 2010-06-04).

    It ought to be easy for VKT to send a DMCA to 4share.com (who discusses their registered agent here: http://www.4shared.com/dmca.jsp and to also send one to GoDaddy.com who discusses their DMCA policy here: http://support.godaddy.com/help/article/7827/what-are-dmca-claims Of course, I don’t know if VKT has or has not sent DMCA’s to either 4share.com or Godaddy.com But if he has not, then I suspect a judge will question VKT’s business models. On the one hand: VKT is not required to close off, but on the other hand, a judge has quite a bit of discretion in judging whether an infringement is ‘deminimum’, or ‘innocent/inadvertent’ and is permitted to grant very low awards. I suspect that copyright owners who don’t send DMCA’s to places like 4share.com or GoDaddy might be seen as meriting lower awards– possibly as low as $200.

    I suspect a judge would also be interested in knowing that in terms of nuts-and-bolts, avenues for obtaining high quality- high resolution images without visible watermarks for free or almost free appear to have been created by VKT himself. (At least they appear to be offered on pages that suggest VKT uploaded them.) I discussed some of the sites where images appear and are credited to Vincent K. Taylor here: http://www.extortionletterinfo.com/forum/getty-images-letter-forum/free-baitpapers/25 . VKT seems to have created other pages including http://photo.net/photodb/photo?photo_id=1416690 .

    While his uploading to these sites is certainly permissible, I think it’s safe to suggest that anyone who knows how the ‘internet works’ would be aware that these high quality images with no watermarks are easily downloaded and later uploaded by to sites like “4share.com”. Certainly, a photographer who has previously threatened suits over similar photos that have appeared all over the web must now be aware of how this works.

    In this regard, if a photographer who uploaded these sorts of high quality images to a site like “photo.net” and later failed to send DMCA’s to a site run by a US owned company like 4share.com, that photographer might find little sympathy with some judges who might be very inclined to grant low awards. Of course I don’t know whether VKT uploaded to photo.net (the person representing himself as VKT might be an impersonator) nor do I know if he has failed to send a DMCA to either GoDaddy or 4share.com (maybe he has but was unable to get the photo taken down).

    We do know he has filed a suit against this Vermont furniture store– as is his right. But I suspect during discovery the defendant’s attorney will delve into questions regarding VKT’s actions with respect to filing DMCA against places like 4share.com or uploading to places like photo.net . Based on what is learned during discovery, it’s possible VKT may drop the suit as he might realize that the defendant has access to information that would sway a judge to grant the lowest possible award. Such an award would be insufficient to cover VKT’s legal costs resulting in a Pyrrhic victory for VKT.

    If that happens, I would suggest that VKT probably would deserve what he got.

    • Martin McNeil :

      It’s interesting that you mention 4shared.com, because I had no prior knowledge of them and looked up their details – and they’re *not* US owned as you state.

      Although the domain name was registered via GoDaddy.com, the site actually is owned by a company located in the British Virgin Islands; furthermore, their servier IP also points to the site being physically hosted there too, making them quite exempt from having to adhere to the DMCA

      With that said, they do indeed have a copyright agent and list both an email address and California based mailing address for their agent, which is an oddity considering their geographical location.

      Using Google’s Street View feature, it appears that the address resolves to a small residential building, which records seem to point to being the private residence of the attorney who is named as the agent for 4shared.com

      This makes me *suspect* that the DMCA details on 4shared.com are a front and sham – that they exist for nothing other than appearances only. Certainly there would be absolutely no ramifications for 4shared.com if they chose to *ignore* a DMCA notification, as they’re beyond US jurisdiction.

      Coming to your issue with photo.net – it’s quite clear that the photographer is using that site to showcase some of his personal work, which is perfectly legal. The page that you linked to clearly identifies him as the author and there is a very straightforward statement on the main galley page which reads “All photos are copyright the photographer, and may not be used without written permission.”

      So, let’s suppose for one moment that the photographer did send a DMCA notice to 4shared.com – which was ignored. What then? International litigation of IP matters is *extremely* costly, and even more so in jurisdictions that aren’t party to copyright conventions such as Berne or WIPO – and the British Virgin Islands isn’t a member of either of those.

      So we come to one of the biggest problems that creative artists face in the internet age – their works being appropriated and shared by entities beyond the reach of the law for all but those with the deepest of pockets.

      Where does that leave them? Campaigning for stronger, enforceable global copyrights, being pro-active in educating people to *not* infringe… and taking action against those they can where the case has merit to do so.

      • lucia liljegren (@lucialiljegren) :

        Martin McNeil

        Although the domain name was registered via GoDaddy.com, the site actually is owned by a company located in the British Virgin Islands;

        I am aware their server is located in the British Virgin Islands and the registrant is listed as being in the Virgin Islands. However, this does not necessarily mean the company is located in the British Virgin Islands. It may or may not be located there. I live in Illinois and for a while hosted my blog in Canada. All that meant was that my blog was subject to both US and Canadian copyright laws. Currently, I have a domain hosted at Dreamhost. If you view the registrant information, you will see it is kept private

        http://whois.domaintools.com/rankexploits.com

        It is not uncommon for the server host to provide their name as the contact for purposes of privacy. So this information sometimes tells you very little. (The hosting company is then required to keep track of other details so they can be supplied under appropriate circumstances.)

        In anycase, their pages are full of details indicating they will comply with US DMCA, and their 4shared.com web page states

        The Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to the terms will be filed only in the state and federal courts located in Santa Clara County, California and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the terms.

        See http://www.4shared.com/terms.jsp

        So, I’m not convinced you’ve found evidence to indicate 4shared.com actually operates in the British Virgin Islands. They may, or the may not.

        The fact is: I don’t think a judge would look favorably on a photographer who made no attempt to remove his materials from this site which– even if it might not be American owned states it will comply with American DMCA and submit to judgements in American courts, while going after small potatoes.

        Certainly there would be absolutely no ramifications for 4shared.com if they chose to *ignore* a DMCA notification, as they’re beyond US jurisdiction.

        I don’t think it has no ramifications. I think VKT tried but failed to get materials taken down, the judge will look more favorably on him. If he made no attempt, the judge will look less favorably. This question is one that an attorney would investigate during discovery.

        which is an oddity considering their geographical location.

        If they are an American company that happens to host on a off-shore server, they would remain subject to US law. I would suggest there may be no “oddity”, but rather, you are interpreting the location of the server as the location of the company. There is no particulare reason why the two ought to be the same. I would be rather surprised a company would bother to create a “sham” DMCA takedown page as I can see no advantage to the company in so doing.

        it’s quite clear that the photographer is using that site to showcase some of his personal work, which is perfectly legal.

        Of course it’s legal. But it also means he is creating a mechanism for high resolution images to be posted by third parties on sites that advertise them as free. While it is legal for him to do this, a judge might not look less sympathetically on someone who does do it– as opposed to a photographer who restricts uploads to images that contain visible watermarks (i.e. blemishes of some sort) or who uploads only small versions of his images.

        On the one hand, I sympathize with photographers. They need to show material to market it in some way.

        But on the other hand, copyright law does have a provision whereby an infringer who has no reason to think material was copyrighted and his used was unlicensed will be fined only $200. If a photographer behaves in a way where his own behavior interacting with “the intertubes” as it actually operates results in very high quality images getting posted on sites that represent the images as “free” to users or give fake licenses to users– or some such, a judge may very well believe the user “had no reason to think” his use was unlicensed. In the case of VKT, it’s possible to see that he does make available very high resolution images which have propagated to many ‘free’ sites, and moreover, he knows they have propagated to these places. Yet, while aware the images have propagated to these “free” sites, it at least appears he continues to host very high quality versions of his images in places where those who run the ‘free sites’ can continue to obtain images and thereby create more and more and more venues where unsuspecting people might downloads and use the images.

        I don’t think a judge is going to award VKT nothing. But I think it’s fairly likely the judge will award him $200 and no attorney’s fees. Should that occur, I’ll think VKT got what he deserved.

        • lucia liljegren (@lucialiljegren) :

          By the way, google permits people who request takedowns to report the even to google. They also indicate what actions was taken (i.e. none, pending, or material removed.)

          The transparency report for 4shared.com suggests they do remove material when a takedown request is submitted:
          https://www.google.com/transparencyreport/removals/copyright/domains/4shared.com/

          • lucia liljegren (@lucialiljegren) :

            I misunderstood that page. It’s people asking Google to remove from their search.

        • Vernon King :

          Wow – great example of Extortion Letter Info Conspiracy Theory Speculation – the facts are irrelevant – it’s what we think that matters

          ” Most photographers have an entitlement mentality. ” – a direct quote from the guy who runs the blog

          Here’s more – very entertaining stuff :

          http://www.extortionletterinfo.com/forum/getty-images-letter-forum/vincent-k-tylor-public-statement-on-desktop-wallpaperscreensaver-websites/msg18194/#msg18194

        • Kevin Sutherland :

          Ms. Liljegren –

          What a judge may or may not do is an interesting way to phrase an answer. Here is exactly what a judge did do.

          From the Peterlla v. MGM May 2014 – “It is not incumbent on copyright owners to challenge every actionable infringement; there is nothing untoward about waiting to see whether a violation undercuts the value of the copyrighted work, has no effect, or even complements the work.” – From the Hon. Justice Ruth Bader – Ginsberg writing for the majority and upholding Petrellas right to go forward with a lawsuit overturning two lower courts dismissal of the suit including the 9th circuit.

          • lucia liljegren :

            Kevin Sutherland,
            I’m familiar with the fact pattern in that case and it’s distinctly different from the current one. But good try.

  7. Kevin Sutherland :

    Ms. Eaton –

    Your employer seems to be very familiar with the internet, so her inability to search, “how to avoid copyright infringement,” escapes me.

    A quick search with that term yields 8,620,000 results in .31 seconds. It would seem that before searching for an image she would search that first, instead of searching for an image to use commercially and avoid paying a usage fee to a photographer, who by the way is a small business as well.

    You make an assertion that Mr. Taylor has done nothing to remove his images from free sites, what proof other than innuendo can you provide. Also any free wall paper site that I have ever visited has very specific language about the images only being for your PERSONAL use no COMMERCIAL use or DISSEMENATION is allowed. Does that language reside on any of the sites that you say Mr. Taylors images reside on?

    Just because a person files lawsuits to protect their property does not make that person a, “troll”, if that were the case every major corporation in the U.S would be a, “troll”, look up the dockets of the federal court system. If anything his case is strengthened by the fact that he defends his property, it will also show the court that he takes the infringement of his work seriously.

    Your boss has made a public spectacle of herself and her self inflicted troubles in an attempt to persuade the court of public opinion in her quest, if I may make a suggestion her efforts should be focused on LISENTING to her attorney, and this is just a guess on my part but I am willing to bet he is counseling her to settle.

    She has placed in the public record that she willing took the image, (violation USC 17 501a) she placed the image on a copyright protected website , (violation USC 1201a), dissemination of copyright protected material (violation USC 17 501a) and probably a couple of others, all of that will be evidence presented at trial. Her attorney will need to be licensed in CA since that is where the case is filed, she should read the 9th circuit decision regarding willful infringement and product and having to go to where the plaintiff has a business or resides or does business.

    Before this is over she will have spent more than the amount offered to settle back in 2012.

    Oh, by the way when she was asked to remove the image and she stated that she did why were they able to find it still archived on her site 2 years later?

  8. I appreciate respectful debate on this topic. There are many facets to consider on both sides of the story.
    http://zernerlaw.wordpress.com/2012/05/24/you-infringed-my-copyright-you-owe-me-150000-um-not-so-fast/

    • Kevin Sutherland :

      Ms. Farabaugh –

      You are very correct that there are many facets to consider but all that have been presented in your defense are sorely lacking in the face of the law, now we are all only relying on what has been provided by both sides here but from what your side has presented it is coming up short.

      While the link is interesting it only points out that the court MAY award up to $150,000.00. That is always the case when a copyright is registered timely, the most recent case to have that occur in was Morel v. Getty/AFP. It does not guarantee that it is what will be awarded, in fact most do not reach that level but many are well above the “$200.00″ numbers previously pointed out.

      When attorneys point that out the $150,000.00 it is for two reasons, one to get your attention and two they are required to point out the maximum of the case because if they do not they then have their hands tied and the opposing consul will use it against them.

      In your case your supporters have made arguments that have ranged from Mr. Tylor seeded the images, (I still have not seen any evidence of that). There is only innuendo that has been presented. The terms of service of the one site presented very clearly points to the fact that they purchased a right to use that image in the manner that they did. Therefore he did not seed the image to that site. As well as a public statement made prior to your use that he did not seed his images, (you will have to roll the dice and do discovery to find out if that is true, but every step you take down that road further poisons the ability to settle). the other accusation is he did not send out DMCA notices, again no evidence, and it is not required by law unless the site has a Registered Safe Harbor with the copyright office.

      If you wish to try this case in the court of public opinion please feel free to trot out your evidence. You have publicly stated that you used the image to sell your product, now let me ask you this question, your website is copyright protected would you take umbrage if I used what was contained in it to sell my product? I am guessing you will say “no”, but to be honest I would not believe you.

      You have negotiated with two different attorneys at this point and neither are or were willing to back off and you are receiving consul from at least one person who is an admitted infringer, my grandmother was fond of the phrase, “misery loves company”, she was a very wise woman and I believe if she were alive today she would tell you look very closely at the source of the information that you are receiving. (By the way she was a pioneer in her day, a licensed pilot by the time she was twenty five, in the early twenties, had her own successful business in the ’30’s that thrived up until the time she died in the 80’s).

      I understand that you believe that you did no wrong, or at least that you think and have been lead to believe that, or at the least it was a minimal infringement. Your biggest problem is are you willing to roll the dice? you have people on both sides tugging one way or the other but each has a dog in the hunt. Your decision is simple can you afford to win the battle and lose the case? If you lose you MAY be required to pay his attorney their reasonable fees, since you actually did take the image the chance of you getting the other side to pay your fees is astronomical, (you still broke the law, courts very rarely if ever award someone for doing that), everyone is focusing on the $150,000.00 as the number but can you afford, say $30,000.00 plus attorneys fees? Can you afford $15,000.00 plus attorneys fees? remember you are paying his as well as yours.

      The simple fact is you took the image and you used it in a commercial manner the chances of $200.00 minimum as the award are pretty small, (lucia aside), she has yet to be in a case like this, I am completing my 6th this year.

      This is from a judges ruling on a case this year for two images –
      Based on the analysis below, we recommend a statutory damages award in the amount of $80,000.00 and attorneys’ fees in the amount of $8,187.50, for a total award of $88,187.50.

      From the judges explanation of the ruling in the above case – Id. at (c) (2) . Under these provisions, the court has broad discretion to direct compensation without a precise showing of the injured party’s losses or the wrongdoer’s profits. See, ~, Merchant Media LLC v. H.S.M. International., 2006 WL 3479022, at *4 (S.D.N.Y Nov. 30, 2006) (“[A]n award of statutory damages will not depend upon a rigorous showing by a plaintiff of the extent of the defendant’s profits. Nonetheless, courts have broad discretion in determining the size of an award, and may require plaintiffs to offer evidence that sheds light on the facts pertinent to such an award.”) In determining the amount of statutory damages, the court must assess a variety of factors. The blameworthiness of the defendant, including both the willfulness of the infringement and the degree to which the defendant cooperates in discovery during the infringement action, may justify an increase in the amount of such damages. See 17 U.S.C. § 504 (c) (2); see also,
      Coach Inc. v. O’Brien, 2012 WL 1255276, at *4 (S.D.N.Y. Apr. 13, 2012). Other considerations include the goals of compensation and deterrence. Manno v. Tennessee Production Center, Inc., 657 F. Supp.2d 425, 429 (S.D.N.Y. 2009).
      Additional factors the court should take into account include the defendant’s profits and
      expenses saved, the plaintiff’s losses, the value of the copyright, and the prospective
      deterrent effect of the statutory award. Bryant v. Media Right Productions, Inc.,
      603 F.3d 135, 144 (2d Cir. 2010) . This case was completed earlier this year, January was when the ruling was received,

      I can provide much, much more but please note the Judge’s use of the term “deterrent effect”, no one on the other side will ever tell you that, and I only give you this so that you will take it to your attorney and have him review it. Do not take my word for anything, you will be told that and more, but I ask you this, what do I have to gain? If you settle it will be kept quite, (probably on your attorneys insistence), the only way we will know what happens is if you try the case.

      It would be a shame for you to lose not only your livelihood but that of the artists you support because other people whom have no skin in the game want to use your case and plight for their own gain. When the dust settles will they be there to help you pick up the pieces? I doubt it. I am not saying that you should not fight if you truly believe you did no wrong, but you have already stated that you took the image and you believe the artist should be paid, (fairly), but it is not up to you to decide fairly, (remember the time to bargain or negotiate was at the time you used the image not later in hindsight), and I fear that what the court sees as fairly will be a burden that you are not prepared to accept.

  9. lucia liljegren :

    Kevin Sutherland
    understand that you believe that you did no wrong, or at least that you think and have been lead to believe that, or at the least it was a minimal infringement. Your biggest problem is are you willing to roll the dice?

    Interesting question. You’ll be interested to read the news at

    http://www.extortionletterinfo.com/forum/getty-images-letter-forum/info-on-woolf-gafni-and-fowler-llp/msg18215/#msg18215

    Where Ms. Farra write

    “So I just got a notice that the VKT lawsuit filed against me by Adam Gafni of Woolf, Gafni and Fowler has been dismissed.”

    • Kevin Sutherland :

      Ms. Liljegren –

      Thank you for the link, it was, shall we say interesting. As you and one other gentleman stated the big question is whether or not is with or without prejudice.

      There are multiple sections to Rule 41(a)(1) instead of wikipedia just Google, Federal Rule 41 you will get much more information.

      In response to your post there, and you should really post it here instead of trying to hijack a thread. Are you prepared to repost all my answers to your group or do you wish to keep using only snippets of posts to further your cause?

      You stated – ” who intended to ‘evidence’ to suggest judges do not hand out $200 statutory minimum awards actually posted a case where the judge did do precisely that! The case is Bright v. Media Right, which had two defendants, ‘Media Right’ and Orchard.”

      What I actually posted was a Judge, the Hon. Judge Lewis Kaplan, in another case using a section from the referenced case for his decision where he awarded $88,187.50.

      Here is something that might help you instead of spreading false information,

      Legal citations are often confusing because they differ from references used in other types of research. Here I will attempt to put them into plain English.

      Case citations are a legal way of referencing another case which may, or may not, be relevant to the case at hand.
      A case citation will have a volume number, a reporter and a page number. The volume number is the official “book” number for the published opinions. The title tells you which set of books. You would think the logical order would be the title, volume number and then the page but that is not the order they use.
      Case Example
      Bryant v. Media Right Productions, 603 F.3d 135,144 (2nd Cir. 2010)
      In the citation, names are underlined or in italics and are followed by a comma and a lower case “v.” replaces “versus”
      • 603
      Reporter volume number followed by a comma
      • F.3d
      Reporter title (abbreviated ) followed by a comma
      • 135, 144
      The first page of the case in that volume [note: a second page number denotes the page on which the exact quote can be located. In this case, 135, 144 would mean the case begins on page 135 and the quote was on page 144.]
      • 2nd Cir. 2010
      The court and the year of decision is enclosed in parentheses and followed with a period.

      Case Citation Titles
      The title US or S. Ct. will denote the US Supreme Court.

      F.1d or F.2d or F.3d denotes Courts of Appeals for the various circuits. They are all lumped together in these volumes based upon the date of the decision.
      F. Supp. 1d or F. Supp. 2d or F. Supp. 3d denotes a published circuit court decision (as opposed to a Court of Appeals decision). Note the difference between F.2d (Court of Appeals) and F. Supp. 2d (Circuit Court).
      353 Mass. 385 (1967) denotes a Massachusetts court. This example is the Supreme Judicial Court of Massachusetts. 17 S.W.3d 721 (2000) denotes the Court of Appeals of Texas, Austin. It will also be cited as 17 S.W.3d 721 (TX 2000) – Hope this helps.

      So unless you went to the book that contained that case went to the referenced pages and took the direct quote from that location, (which you clearly did not post), your description of what was contained in the ruling that I posted is entirely incorrect and misleading, (were you doing that intentionally).

      As to your incorrect assumption regarding copyright and patent, first two of the cases the Hon. Judge Kaplan used in his ruling were patent related, and one was copyright and if you feel that you know more than the Judge himself please feel free to educate us all, I am sure the defendants in the case that was referenced would love to appeal/have their case tossed on Judicial error, although it is a little late for that.

      As to Mr. Lorimers statement, ” how these guys talk a huge game, use extreme scare tactics, and even try to “reason” with people.” What scare tactics? all I have posted are FACTS, the case is real the facts in the case are real and not twisted or edited to fit any agenda. It would be to easy to discredit the argument if that were the case, Ms. Farabaughs attorneys would easily spot the deception . As I stated in my last response to Ms. Farabaugh, “I am not saying that you should not fight if you truly believe you did no wrong,” and I stand by that statement. None of you in your referenced thread have pointed out any of the negatives that could happen, all of you have encouraged her to fight and in one response she was encouraged to “play chicken” advice that I would say is very self serving and does not contain all the negative possibilities that could occur.

      Now with two of you asking she still has not answered the simple question whether it is with or without prejudice and she would know that at the same time she received notice that the case was dismissed. If it was dismissed without prejudice the case is still ripe, (look it up), and it happens more than you think, new facts or evidence pop up and need to be investigated before the case can be amended, attorney client issues, attorney conflict the list goes on. If it was dismissed with prejudice I would think that she would be here doing cat flips, as that means she is off the hook and the plaintiff has decided to drop the case.

      Ms. Lilegren you also stated this, “Yes. His argument was exceptionally bad. But by the time I read it, the case was dropped. I thought it best to merely report that.” At this time we do not know if the case has been dropped or not, dismissed does not mean dropped it is a common misconception. I believe I have covered this elsewhere but in case I didn’t, dismissed has two components “with” or “without prejudice”, “without” means the case can still be refilled “with” means it is over.

      You also stated, “That said: I googled (sic) to find the cases he mentioned in sufficient detail to find. They were trademark cases (and so irrelevant) and the copyright case was an example of a judge awarding $200– the absolute minimum permissible if there was indeed an infringement”.

      Now, to be redundant the cases referenced in the case I provided were used by the Hon. Judge Kaplan, not me, and you only looked up the case not the referenced quote the Judge was relying on, (so your “not relevant” is meaningless), so please do not twist the facts to fit what you want people to believe. You also stated, “This case oferred (sic) up by Sutherland is a classic in showing the risk to plaintiffs who try to extract extortionate amounts (e.g. $1,000,000) for injuries that if they exist at all are minor (here, $600). It is such a good example for the ELI side, that it’s going to need a post of it’s own!” First make sure that you properly reference all the facts and all of my quotes from the Judge, not what you want it to be, and just be aware that if you do what you say you want to do that you are entirely incorrect, the case I offered up was a case for two images with a “willful” finding where the plaintiff was awarded $88,187.50, please READ what I posted not what you want to see.

      Just to make it a little more clear here is a little more from Judge Kaplan on the same case – “Statutory damages awarded by courts in this district under 17 U. S. C. § 504 (c) (1) for willful infringement of copyrights protecting photographs generally range between $10,000.00 and $25,000.00 per infringed work. See, Burch v. Nyarko, 2007 WL 2191615, at *3 (S.D.N.Y. July 31, 2007), adopted, 06 Civ. 7022 (LAP) (GWG) Dkt. No. 14.”

      So in closing please feel free to use the actual case not your imagined idea of what it is and try to provide a little balance in your advice to people whom may lose everything, instead of providing false hope.

      Oh, bye the way, please answer this since you are very educated on the law, what is the “legal” meaning of the word “willful”?

  10. lucia liljegren :

    Kevin Sutherland,

    In response to your post there, and you should really post it here instead of trying to hijack a thread.
    If I understand you correctly, you are suggesting I was hijacking a thread at the ELI forum. I would point out that you are not the moderator of that forum. Matt Chan is. When he decrees my post on his site off-topic, I’ll comply. But I don’t recognize you as having any right to moderate my behavior there at that forum.

    I would suggest however, that ELI would be the appropriate forum to discuss material posted at ELI.

    As for your defense of what you wrote here:

    I’m sure you are convinced your writing is crystal clear and enlightened, but when you write “What I actually posted was a Judge, the Hon. Judge Lewis Kaplan, in another case using a section from the referenced case for his decision where he awarded $88,187.50.”
    that is a mistatement. In fact, if you use your browser search tool, you will discover that you did not previously mention any Judge Kaplan.

    Perhaps you mean that somehow we were to guess the case you were referring to by your obscure
    “This is from a judges ruling on a case this year for two images …” Notwithstanding your recent little self-indulgent lecture of citations methods for court cases, you failed to describe the case you were discussing using any citation other than “a case”. Those of us without psychic powers were unlikely to figure out what case you meant and left to try assume you were discussing a case you actually cited.

    I noted that your stream of conscious meanderings included this
    … deterrent effect of the statutory award. Bryant v. Media Right Productions, Inc., 603 F.3d 135, 144 (2d Cir. 2010) .
    Which seems to suggest you are under the impression that Bryant v. Media Right productions supported your claim that awards of $200 for copyright infringements did not occur. In fact, this case does the contrary: it shows that judges do award $200.

    The ruling in ” BRYANT v. MEDIA RIGHT PRODUCTIONS, INC.
    603 F.3d 135 (2d Cir. 2010)” it can be found here at this link.
    https://casetext.com/case/bryant-v-media-right-productions-inc#.U7XfR6hRdgI

    My discussion at ELI was supported by these quotes:
    Second, the Court found that Orchard had proven that its infringement was innocent, and thus ordered Orchard to pay only minimal statutory damages of $200 per Album, for a total of $400. Id. at *8-9.
    Note: this is precisely the $200 award you claim is unlikely.

    It is, of course, true the the 2nd circuits ruling also states
    When determining the amount of statutory damages to award for copyright infringement, courts consider: (1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties. See N.A.S. Impor. Corp. v. Chenson Enter., Inc., 968 F.2d 250, 252-53 (2d Cir. 1992).

    But in this case, the court considered all these factors, and with respect to Orchard, assessed the statutory minimum: $200 per infringement. There were two infringements, so that amounted to $400. And yes, that includes the amount the judge considered warranted to “deter” the infringer and 3rd parties.

    The other co-defendant in this case Media Right was fined $2000.
    The total award to the defendant was $2400.

    This award was upheld by Kimba Wood, ruling for the 2nd circuit.

    As for the copyright holder: They got less from the judge than offerred during settlement negotiations
    Here, Appellees’ defenses were not objectively unreasonable. Indeed, Appellees prevailed on several important issues. Appellees also were reasonable in trying to resolve the case short of trial: Appellees made an Offer of Judgment in the amount of $3000, which Appellants rejected, in favor of continuing to demand over $1 million in damages, notwithstanding the evidence that Appellees had received less than $600 in revenues from infringing sales.

    That’s right: Had the copyright holder settled, they would have gotten $3000 rather than $2400.

    I think this case — which you did cite in your previous comment (even if you intended only to quote )– does in fact show that judges do make $200 awards for copyright infringements. The point of your previous comment appeared to be showing that such awards were unlikely. I think you failed to support your point. (At least that’s what the claim I understood you to be making when you wrote

    “The simple fact is you took the image and you used it in a commercial manner the chances of $200.00 minimum as the award are pretty small, (lucia aside), she has yet to be in a case like this, I am completing my 6th this year. “

    As for this other case which you think relevant have cited to the extent of referring to it as “a case” and have now revealed was ruled on by a judge kaplan…. perhaps you could provide sufficient information for people to find the case? And perhaps you could do me the favor of discussing this at ELI where I check in rather more regularly than here?

  11. Kevin Sutherland :

    On a much lighter side.

    To all veterans who have given their all and to those still serving a great big THANK YOU for ensuring that we still can celebrate the founding of this country. For sacrificing of time, family and body for all of us.

    To VTdigger to providing this forum, also a great big thank you.

    Happy 4th everyone.

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