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  1. #551
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    We're sliding back into a discussion with the photographers folks. Try to avoid taking the bait and let's keep on topic by only providing information that can help our cases.

    It is worth noting that several of our critics have clearly only joined this forum for the purposes of getting into this discussion. We have to ask ourselves why and also how and why they found their way into this thread in the first place?

    Dont bite.

  2. #552
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    Unless you have written (or recorded verbal) permission from the owner on the image, or it was taken a *very* long time ago - You cannot use them legally.

    not entirely accurate. Basically although copyright exists when the image is first created it can and often be lost/changed. There are countless millions of images on the net which fall within the public domain - in other words they are free and available to the public to use and publish as they wish.
    You have to understand why the Law demands registration/copyright symbols or some way of indentifying that the image is currently copyrighted. It is because without that requirement any bozo could stick an image on the net with a big declaration saying this is an image i took, its copyright free and anyone can use it. 4 years later he returns with the same image and a copyright notice demanding £2,000 for the license for that image. 8 out of every 10 Defendants cannot find or refer to the original 'free' declaration because he has removed all trace of it from the ineternet. Its a simple and effective scam which is why the Law demands some form of copyright identification - although under the system you advocate the innocent housewife should be treated as a theif and forced to hand over $10,000 to the bozo.
    So long as you can prove that you had no reason to believe the particular image did have a copyright out of the millions of copyright free images on the internet then you have a defence to a claim for damages. s.97

    Even if people fail to convince a copyright tribunal that they were innocent you then have to look at case-law such as Norowzian v Arks (No.1), where photography copyright can only be infringed by photographic copying from the film. i.e. by photographic means
    Images have been transferred from a database (getty) to a third party and then on to the defendants using the internet i.e. they were transferred as bitmap files. The copy being created from bitmap pixels not from photographic means. As i have said before, the distinction between a block of bitmap pixels from a 'film' image is important.

  3. #553
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    Sorry Booler to be drawn into the troll photographers threads however some of them make good pratice for the type of rubbish that will be thrown at you by gettys lawyers in the extremely unlikely event they ever take someone to the copyright tribunal:-

    Shocked photo went at lengths to reprint a copy of a licence from SXU.

    What he ommitted was the first paragraph of that license:-

    You may use the Image

    In digital format on websites, multimedia presentations, broadcast film and video, cell phones.
    In printed promotional materials, magazines, newspapers, books, brochures, flyers, CD/DVD covers, etc.


    Incidentally Booler i think the issue of county court procedures may only be an academic one if Corbis pursue their claim through the 'Copyright Tribunal' which i believe is the correct forum for a claim under the 1988 Act.
    For guidance on that tribunal see http://www.opsi.gov.uk/si/si1989/Uks...9_en_2.htm#end

  4. #554
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    I am not sure whether or not the Copyright Tribunal applies in this case. What I am sure of is that it is not a simple matter trying to take individuals (like us) to court on this. I would contend that this is probably why I can find no record of any such successful prosecution although I have spent a lot of time searching for this. If it had happened I am sure that (with its implications) it would have been a high profile story on the Internet and quite easy to find.

    The case of Corbis versus Templatemonster is one thing but trying to prosecute individuals under the copyright act opens a real can of worms. The act would appear to make it illegal to surf the net. Here's what it says about infringement of copyright by copying.

    17.—(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

    (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
    This includes storing the work in any medium by electronic means . (my emphasis)
    If you visit a website with a copyrighted work you download it from the website host and store it in the cache of your PC. Isn't this storing it by electronic means? If so isn't this also an infringement?

  5. #555
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    It is worth noting that several of our critics have clearly only joined this forum for the purposes of getting into this discussion. We have to ask ourselves why and also how and why they found their way into this thread in the first place?
    Dont bite.


    I clocked this thread weeks ago when researching Picscout. at the time I was too busy to get involved. A couple of weeks back I linked to it in a (closed and limited) photographers forum when someone raised a question about Picscout (as part of a larger repsonse). Subsequent to this it has it has been linked to by someone else on an extremely popular open forum. Personally I'm not posting here to wind you all up. I'm posting because you are making mistakes in your understanding of the issue - I think it's good for both Web designers and photographers for Web designers to be in possession of the facts...

    Danny, I don't have time to respond to every point who made in youir recent posts so I'm just dealing with the most recent...

    Unless you have written (or recorded verbal) permission from the owner on the image, or it was taken a *very* long time ago - You cannot use them legally.

    not entirely accurate. Basically although copyright exists when the image is first created it can and often be lost/changed.


    Yes copyright can be changed and that's why I used the 'owner' rather than creator. Copyright can not be 'lost' at all. It can be transferred, it can expire, or it can be dedicated to the public domain by its owner ... See '3. Dedicated Works' at http://fairuse.stanford.edu/Copyrigh...er8/8-a.html#3 for more info.

    There are countless millions of images on the net which fall within the public domain - in other words they are free and available to the public to use and publish as they wish.

    "Countless millions" may (or may not) be true but I would put money on that for every single image that if free from copyright on the net there are at least a thousand that are fully copyrighted. That said, who's resposibilty do you think it is to ensure an image used on a commercial Website without explicit permission from its owner is copyright free?

    You have to understand why the Law demands registration/copyright symbols or some way of indentifying that the image is currently copyrighted.

    This is false too. Did you glean this 'fact' from the Website I linked to (the private enterprise copyright registration company). Fact is at http://www.patent.gov.uk/copy.htm - See particularly the section, 'Automatic Protection'.

    It is because without that requirement any bozo could stick an image on the net with a big declaration saying this is an image i took, its copyright free and anyone can use it. 4 years later he returns with the same image and a copyright notice demanding £2,000 for the license for that image. 8 out of every 10 Defendants cannot find or refer to the original 'free' declaration because he has removed all trace of it from the ineternet. Its a simple and effective scam which is why the Law demands some form of copyright identification - although under the system you advocate the innocent housewife should be treated as a theif and forced to hand over $10,000 to the bozo.

    False (again). The law does not demand "some form of copyright identification", it demands proof of copyright ownership. In Getty's case the photographers will have supplied slides (years ago), scans of of slides (more recently), or TIFF's rendered from digital raw captures (most recently). In all cases there is an original (slide or raw file) to prove copyright ownership. There is very often signed model release and/or property release documents too.
    It is encumbent upon the the user of copyrighted material to to have a copy of the license - A printout or screen grab in the case of your "innocent housewife".
    Are Getty demanding $10,000 from a housewife? Why would a housewife put Getty photo's on her Website, which would typically exist to display snaps of her kids and holidays?

    So long as you can prove that you had no reason to believe the particular image did have a copyright out of the millions of copyright free images on the internet then you have a defence to a claim for damages. s.97

    Yes, prove this and you're A-OK.

    Even if people fail to convince a copyright tribunal that they were innocent you then have to look at case-law such as Norowzian v Arks (No.1), where photography copyright can only be infringed by photographic copying from the film. i.e. by photographic means

    Norowzian v Arks (No.1) bears no relation to the issue of this thread. The 'film' referred to in that case means the short film, not the celluloid.
    For the most relevant and up-to-date law concerning copyright of digitalised material read 'The Copyright and Related Rights Regulations 2003' which is an amendment of 'The Copyright, Designs and Patents Act 1988' (the current UK copyright act) ... http://www.opsi.gov.uk/si/si2003/20032498.htm & http://www.opsi.gov.uk/acts/acts1988...n_3.htm#mdiv17

    Images have been transferred from a database (getty) to a third party and then on to the defendants using the internet i.e. they were transferred as bitmap files. The copy being created from bitmap pixels not from photographic means. As i have said before, the distinction between a block of bitmap pixels from a 'film' image is important.

    Again, 'film' in Norowzian v Arks did not refer to the celluloid. The distinction between a block of pitmap pixels and a 'film' image is non-existent: From 'The Copyright, Designs and Patents Act 1988'...
    ""photograph" means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;"
    Note how the law distinguishes 'film' (moving image) from 'photograph' (still), thereby making Norowzian v Arks irrelevent.
    Relevent to this thread from 'The Copyright, Designs and Patents Act 1988' is...
    17.—(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
    " (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
    This includes storing the work in any medium by electronic means."

    And browser cache is covered by 'The Copyright and Related Rights Regulations 2003'...

    " 28A Making of temporary copies
    1A. The rights conferred by Part 2 are not infringed by the making of a temporary copy of a recording of a performance which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -
    (a) a transmission of the recording in a network between third parties by an intermediary; or
    (b) a lawful use of the recording;
    and which has no independent economic significance.".

  6. #556
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    Simon take a look at this blog

    http://images-public-free.blogspot.com/

    I posted it today and already my stats show at least 10 users have downloaded some of the images.

    In 26 weeks time time I could remove that blog. By then (assuming 100 downloads per week) a conservative estimate would be 2600 users.

    In 3 years time I re-instate the blog but this time declaring that the image cost is £2000 each. I could use my tracking software to locate some of the 2600 sites using it. I send them all demands for £5,000.
    Some will have kept a screenshot of the original blog, maybe some would have checked out my credentials however I can guarantee that at least 2000 poor suckers will have no proof of where or how they got those images particulary after a time span of 3 years.


    Now do you see the scam!!!!!!!!!!

    What’s better is according to your interpretation of the law all I need do is prove ownership of the images. Easy I have witnesses, records of when, where, what camera, witnesses etc. etc

    That is why we have the defence of s.97 so as to stop easy scams like this.

  7. #557
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    jesus i've just realised that if i lose against getty then i stand to make £10,000,000 out of my blog. (ok this forum thread could go against me so i will create a web-site instead 'mysite.Images.com' I could publish hundreds of reasonably good images and then in 3 years time cut a deal with an Isreali hacker to fish out 'infringers')

    mmmm damn and curse that s.97:-)

  8. #558
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    Great blog Danny. Only trouble is you will probably find that Getty have mysteriously acquired those images in 3 years time although its nice to see you have a concealed id on each image - your not the only code freak here:-)

    There are Millions of public domain images on the net not to mention millions upon millions of images produced from countries which are not signed up to international copyright treaties. (and they represent two thirds of the worlds population)

    Leaving aside www.sxc.hu/ or http://flickr.com/ or http://pdphoto.org/ or http://www.openphoto.net/ or http://www.ourmedia.org/images or http://karenswhimsy.com/public-domain-images/ Looking for 2 seconds on the net i found this web-site offerring thousands of image free pics:-

    http://freestockphotos.com/

    (Pleased to note that one of gettys more intelligent supporters at last acknowledges there is a difference between film/videos and images.)

    So with millions upon millions of FREE images on the net which are within the public domain how will a tribunal ever reach the verdict that you should have 'reason to believe' an unmarked image was copyrighted?!!!!
    Movies, MP3's, sound recordings etc all make it pretty clear who the author is - e.g. you can hear their (or their actors/singers) voices for christs sake! - whereas images do Not (unless they are of elvis etc - which none of ours are).

    Finally to the troll 'infringed' - remember that video you bought 4 years ago well now the shop-keepers at your door - hes accusing you of stealing it from his shop - still got the receipt??
    sally

  9. #559
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    Danny, Section 97 is not there to legislate against the scam you describe. There are specific laws to cover that.

    A UK precedent illustrating Section 97 in action is Microsoft v Plato Technology: See page 6 of http://www.tifac.org.in/do/pfc/pub/octbul.pdf

    In particular,

    "the court held that it should be incumbent on the honest trader to check that the products he buys are genuine"

    Which is one of the points I've been trying to explain to you. The court in this case recognised that the defendant had not wilfully infringed copyright, even so they found them guilty of copyright infringement. The court ordered a "narrow relief" amongst other remedies.

    Getty are asking for $1000 (approx. £525) per infringement. In an earlier post I explained how this might be easily be considered 'narrow relief' in a UK court of law in light of their standard price structure...

    Licence details

    Use: Web - Corporate or Promotional Site
    Size: Medium - Up to 300x250 pixels
    Placement: Home page
    Start date: 1 Jan 2007
    End date: 1 Jan 2008
    Territory: United Kingdom
    Industry: Fashion / Textiles
    Exclusivity: No Exclusivity

    Contact us for exclusivity

    Price: £ 1,015.00 GBP

  10. #560
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    Quote Originally Posted by danny20 View Post
    Simon take a look at this blog

    http://images-public-free.blogspot.com/

    I posted it today and already my stats show at least 10 users have downloaded some of the images.
    Danny, please remove the image of the drummer or make a as clear as day that this image cannot legally be used for commercial purposes (unless you have a signed model release), otherwise people using that image commercially could end up being sued.

  11. #561
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    In that case the defendant put forward the argument that MicroS' was only entitled to damages for 45 copies and consequently the damages were limited to 45 copies because of the innocent infringement.

    In any event where does the case cite s.97? Therein lies the problem –there is no UK case law that specifically deals with s.97 or least none that I could find.

    Getty are asking for $1000 (approx. £525) per infringement. In an earlier post I explained how this might be easily be considered extortionate relief' in a UK court of law in light of their standard price structure for countries outside the UK

    Licence details

    Use: Web - Corporate or Promotional Site
    Size: Medium - Up to 300x250 pixels
    Placement: Home page
    Start date: 1 Jan 2007
    End date: 1 Jan 2008
    Territory: China
    Industry: Fashion / Textiles
    Exclusivity: No Exclusivity

    Contact us for exclusivity

    Price: £ 15 GBP

    In my case and possibly everyone else on this forum, the web-sites are not merely accessible in the UK alone – they are accessible from anywhere in the world. In accordance with the other UK authorities on this issue the courts have to look at the global picture rather than confine it to the UK price structure. V&S Vin & Sprit Aktiebolag AB v Absolut Beach Pty Limited The worst outcome will be a tribunal will meet the actual market value as somewhere between the Uk price of £525 and the Chinese price of £15. At best they will consider the UK competition laws and completely ignore the Uk price as it is clearly places Uk business at an unfair competitive position in a GLOBAL market.
    All this assumes they ignore s.97 which if they do will leave the door open for anyone to run a scam such as the one suggested by my blog.

    BTW The drummer is a personal friend in a country not party to international copyright agreements (now there is one for the lawyers) however I take your point – sending everyone a copy of a signed model release is too much hassle. One of the points of the blog was to emphasize just how easy it is for innocent people to be sued and i have added that statement to the blog. (or will do in the next 10 minutes)

  12. #562
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    thanks Sally for all those links to free, public images.

    Simon i now have a signed model release so i have left the image as it is but appreciate your advice. I'll feed you with a ringside commentary of the ground-breaking GettyImages -v - danny20 (should it ever happen.)

  13. #563
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    Just wondering why the problem of the Picscout scan is being ignored in favour of this copyright issue?

    Picscout's bot is spoofing the user-agent making it a 'bad robot' and therefore preventing website owners from using the robot exclusion standard. What are the legalities of them ignoring the rules you set for access to your property? Is that hacking? Is that theft? Are they financially responsible for accessing your property in such a way?

    I know there are photographers here trying to defend their trade, but there are issues here other than just copyright, and those copyright discussions shouldn't overshadow them. These issues affect every website owner on the internet that is unknowingly being scanned by Picscout (and paying for the privilege).

  14. #564
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    Also please try to remember that while we are all intelligent people, we are not trial lawyers, so let's try to keep the legalese (not to mention our emotions/beliefs) in check, ok?

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    hi Dan,
    the problem is that the legalese is at the core of the issue. Few on this forum can afford copyright lawyers and therefore any form of legal input would help.

    Take for example this piece of UK legilastion http://www.opsi.gov.uk/si/si1989/Uksi_19891293_en_1.htm

    How many people realsise that Copyright does not subsist-
    (a) in a literary, dramatic, musical or artistic work ... if it was first published-
    (i) before 1st June 1957 (commencement of Copyright Act 1956[2] ), or
    (ii) before 1st August 1989 (commencement of Part I of the Act) and at the material time (as defined in section 154(4)(b) of the Act) the author was not a relevant person;
    Some of Gettys images were taken in the US by a US photographer (not a relevant person) before 1989, which explains why Getty are so reluctant to provide evidence of the date the image was shot.


    As regards Picscout yes it is hacking and yes it is a criminal offence. Query how do you prove it?

  16. #566
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    (Actually, I was trying to diffuse the situation and get people to realize that they need to calm down and look at things differently before this thread gets locked.)

  17. #567
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    Just been looking into my mad ramblings from last night. The Computer Misuse Act of 1990, says: "A person is guilty of an offence if: ... b) the access he intends to secure is unauthorised..." [Source]

    Does Picscout actually provide advice on what should be entered into a robots.txt file to prevent them accessing websites?

    If not, couldn't you just add the name 'picscout' to your robots.txt and if you get an invoice in the future then does that mean they've committed a criminal offence? Could also use server logs to back that up.

  18. #568
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    Quote Originally Posted by Dan Schulz View Post
    I've read them and will likely implement those sorts of blocking (appreciate you pointing it out), but in my opinion that's only a short term fix. I am more interested in somehow making Picscout act responsibly.

    If they were playing by the rules then all people would have to do is block their user-agent when they notice excess bandwidth usage. If people start reporting them and their clients to the police's computer crime unit, then that will be a blunt wakeup call to force them to behave in a responsible manner.

  20. #570
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    Send PicScout an invoice for the bandwidth usage then.

  21. #571
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    Quote Originally Posted by Dan Schulz View Post
    Send PicScout an invoice for the bandwidth usage then.
    Don't have the proof since the logs are long gone, and to be honest I avoid that sort of thing unless I really have to - due to overheads. I just enjoy running my website, and begrudgingly declare it as a business to cover the running costs (hence the reason I get annoyed about them leeching without repercussions)... think I'll leave this thread and hope the situation fixes itself.

  22. #572
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    the Computer Misuse Act 1990 is a criminal offence. Surely the only way it would help us against gettys claims would be if Picscout were actually prosecuted and found guilty. Then if Gettys evidence was founded on Picscouts findings that evidence could possibly be ruled out as inadmissable as it was obtained by criminal means.
    To prosecute Picscout it would take more than just one us wandering into the local police station - any ideas?

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    BTW does anyone have copies of getty images license fees from 3 or 4 years ago as i'm told their prices then were less than a third of what they charge now (for the same photograph).

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    Picscout are using a bot which gains unauthorized access to your server.(particularly if you have stated is forbidden on your site either in the Robots.txt, meta-tags or even in the text on a page) However Getty are producing screenshots of your pages from a normal browser but as has been said before anyone could PS a screenshot. So Getty need to corroborate that screenshot by presumably bringing Picscout into the case- maybe its at that point you can start counterclaiming for bandwidth costs and unauthorized access.

    BTW Simon take a look at s4 of the 1988 Act which states that a photograph is an 'artistic work'. Then look at s1 which defines copyright as subsisting in ORIGINAL .. artistic works.
    Originality and creativity is essential for copyright. Since every photograph is a copy of the image it represents in a sense it can never be an original e.g. a tourists point and click pic of blackpool tower is not original. Some photographs perhaps can be considered original if they are artistic using lighting, unusual angles and carefully arranged subject matters.
    Originality of a photograph is of crucial importance as it is the level of originality that will govern whether a photograph is protected by copyright. A photograph that is unoriginal and does not attract copyright may be copied with impunity. This is why I considered the few crappy images of baby clothes not to have copyright and why I intend to rely on s.97. maybe this point could help those on the forum who have images such as shopping carts, simple graphics or images that you would expect a million tourists to take each week.
    sally

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    Sally that’s a interesting point about originality but I don't think it helps many as the majority of the images getty are claiming for I assume will have some artistic merit.

    As for s.97 it only concerns belief that copyright subsisted in the work. In the 1992 case of LA Gear Inc v Hi-Tec Sports plc the court of appeal said that the test to apply was an objective one - that is whether the reasonable man, having the defendant’s knowledge of the facts, would have believed that the copy was an infringing copy.

    Based on case law I found I think s.97 will only apply where you have good grounds to believe:-
    1. image is out of copyright because of its age
    2. image is not of a character in which copyright can subsist (the point you made about originality)
    3. The image is of obscure foreign origin
    4. Image falls into the public domain

    The case law I have read suggests that s.97 will NOT be a defence where:-

    1.a person suspects copyright exists but makes a mistake as to the owner of the copyright. Tate v. Thomas (1921)
    2. That he held an honest but erroneous view of the law (Pytram Ltd v. Models)
    3. He made no inquiry whatever as to the source from which the work was derived (Kirk v. Fleming (1929))

    I think the only reasonable way forward with a s.97 defence is to show you thought it was in the public domain e.g. you have a cover disc which states it is in the public domain.

    What intensely annoys me is that I am sure when I looked at Getty’s site 3-4 years ago, firstly it said the images were royalty free which to me implies it was in the public domain and secondly when it did refer to a license, the cost of that license was about £70 for the same image they now say is £700. It’s a scam as illustrated by my blog.

    Finally there are other defences which few have mentioned:-

    1. Fair Use
    2. Incidental inclusion
    3. Debarred by acquiescence or delay
    4. Precluded by the EC treaty
    5. Exhaustion of rights
    6. Image maker not a qualifying person to be entitled to UK copyright
    7. Image created in a country that signed the universal copyright convention (UCC) where images without the c symbol are not protected.

    Not to mention all the other points raised on this forum about tax issues, Company law, illegal acquisition of evidence, malicious threats, disability discrimination, false accounting etc etc.


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