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.

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27 Comments on "Vermont business owner says she was hit by ‘copyright troll’"

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Judith Levine
1 year 10 months ago

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
1 year 10 months ago

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;… Read more »

Pete Novick
1 year 10 months ago

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… Read more »

Ken McPherson
1 year 10 months ago

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… Read more »

Kelsey Eaton
1 year 10 months ago

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
1 year 10 months ago

… 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
1 year 10 months ago

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… Read more »

Martin McNeil
1 year 10 months ago

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… Read more »

Patrick Monroe
1 year 10 months ago

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

Martin McNeil
1 year 10 months ago

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… Read more »

1 year 10 months ago

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… Read more »

Martin McNeil
1 year 10 months ago

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… Read more »

lucia liljegren (@lucialiljegren)
1 year 10 months ago

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,… Read more »

lucia liljegren (@lucialiljegren)
1 year 10 months ago

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)
1 year 10 months ago

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

Vernon King
1 year 10 months ago

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
1 year 10 months ago

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… Read more »

lucia liljegren
1 year 10 months ago

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

Kevin Sutherland
1 year 10 months ago

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… Read more »

1 year 10 months ago

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
1 year 10 months ago

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.… Read more »

Vernon King
1 year 10 months ago

” 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. ”

Very Good Advice -( and very informative post btw ) a quick search for Matthew Chan and Oscar Michelin referenced in this article turns up some very interesting information. I would be concerned about having my name or reputation associated with these individuals

http://pdnpulse.pdnonline.com/2013/03/stalked-for-protecting-copyright-author-gets-protective-order.html

http://www.jdsupra.com/legalnews/stalking-permanent-protective-order-agai-06827/

lucia liljegren
1 year 9 months ago

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
1 year 9 months ago

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?… Read more »

lucia liljegren
1 year 9 months ago

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.… Read more »

Kevin Sutherland
1 year 9 months ago

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.

Leif Skoogfors
10 months 12 days ago

What amazes me is the hate exhibited by folks who, when caught having appropriated a work, lash out at the people who created the photographs.

As an aside, on every page of Google image Search (GIS) is used, “This image may be subject to copyright” is displayed.

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