As the trademark owner, they would have the right to demand that you take it down, typically through a DMCA takedown request sent to your webhost.
Legal IM Questions -Round 4
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As the trademark owner, they would have the right to demand that you take it down, typically through a DMCA takedown request sent to your webhost.
In a photography club I am in we run around the city and take random pictures. Some of these pictures have people in them. I would like to make a website where we can all post the pictures we've taken. But I am wondering, is it ok to post these pictures online when we have not asked for consent from the various people who are in them?
You do run some risk, but its minimal, especially if you aren't using them commercially (e.g. to try to make a profit). If the people in the pics aren't individually recognizable, such as blurry faces in a downtown crowd in Times Square for example, you aren't going to have any issues. If people are clearly recognizable individuals AND they have an issue with it, then you should certainly respect their wishes and take them down, you are risking some privacy invasion legal issues if you don't, but I would consider the whole thing relatively low-risk in general.
Assuming that you aren't "profiting" off the looks/images of these people (for example, taking a full-on close up pic of an attractive woman, than putting her on your website to sell dating leads or something) you usually have pretty low risk, so long as you do take down any pics if a person requests it. Ideally, if you have pictures of just a single recognizable individual, you should ask them to sign-off for that usage, but otherwise groups of people in a public setting don't cause a lot of problems for the photographers.
So basically we can all put up the pictures and then all we need to do is comply if someone asks for a photo to be taken down? Great.
You did note a gray line with photos having specific people in them though.
This would all be non-commercial and just for the fun of the group, but some of the pictures will have just a single person in them. Maybe some that are
just a picture of someone with a funny look on their face. Now we might also have like a voting for photo of the week. So one of these pictures of a
specific person could be picked as the photo of the week and be featured on the site for that. Would this be ok? Would I just need to take it down when
asked? Or are they able to sue for damages or something else even when I take it down if asked?
Basically, can I still get in trouble even if I take pictures down right when asked?
Thanks for your help.
Can you shed some light on what's happening with Righthaven... whereby they buy a trademark for some piece of content on your website, then sue you without DMCA? You're a non profit you say? They sue you anyway.
This is obviously filled with holes from a prosecution standpoint, but they are strong arming people into settlements. I have no doubt in court, this could easily be dismissed, but the aggravation and out of pocket to do so would probably warrant a counter suit... that whole ordeal would be just plain annoying.
As someone with news aggregators and such, I'd like to know your opinion on this specifically.
The latest, and something to give you a quick overview in case you're unfamiliar- Salt Lake Tribune Aligns With Copyright Troll Righthaven « One Utah
Thank You
Resources:
Welcome to Righthaven Lawsuits
Righthaven Victims
https://www.eff.org/deeplinks/2010/08/eff-seeks-righthaven-defendants
stop the LVRJ/RIGHTHAVEN witch hunt! | Facebook
Righthaven stories at Techdirt.
This is obviously filled with holes from a prosecution standpoint, but they are strong arming people into settlements. I have no doubt in court, this could easily be dismissed, but the aggravation and out of pocket to do so would probably warrant a counter suit... that whole ordeal would be just plain annoying.
As someone with news aggregators and such, I'd like to know your opinion on this specifically.
The latest, and something to give you a quick overview in case you're unfamiliar- Salt Lake Tribune Aligns With Copyright Troll Righthaven « One Utah
Thank You
Resources:
Welcome to Righthaven Lawsuits
Righthaven Victims
https://www.eff.org/deeplinks/2010/08/eff-seeks-righthaven-defendants
stop the LVRJ/RIGHTHAVEN witch hunt! | Facebook
Righthaven stories at Techdirt.
It's no different than what the RIAA was doing in the late 90's, going after people who downloaded music on napster, grokster, etc. 99.9% of the time they will fire off these demand letters trying to strong arm people into a settlement. Why? Because of the way the law reads. Copyright law does two things: 1) protects original and creative expression; and 2) allows the copyright holder to prohibit others from using his/her work without their permission. This is why simply linking to the original article isn't going to save you from a claim for copyright infringment.
What Righthaven is doing, no matter how preposterous it looks, is actually fairly in line with modern copyright law. The argument they make, just like anyone arguing infringment, is the dilution of the original work. If your website posts this particular picture or news article and it ranks higher than the original source then they would have a strong presumption of dilution. Nonetheless, there are arguments for fair use (educational purposes, criticism, etc.) but Fair use is a DEFENSE to a claim, not a right. In other words, you'd have to litigate your fair use defense in order to use it. Thus, it becomes expensive to litigate over whether your blog post that lifts some content from a news site is fair use, when in truth your MFA may not be worth fighting for....thats at least what Righthaven is hoping for.
Thanks for your response.
What had me concerned was seeing these cases where people are being sued without DMCA notices that run autoblogs/news aggregators. I don't wanna wake up one day and be forced into litigation or settle when I'd happily remove something (even give up the site) if notified... just not worth the aggravation.
You are aware that the DMCA only helps you if you've registered an agent with the copyright office?
I'm aware, but I'm not an attorney and don't know the ins and outs of this that's why I was asking. (never had too many legal problems, an zero related to copyright so it was seeming a bit foreign)
thanks
hUH?!? The DMCA doesn't require that you have a registered agent. I think you're confused with the fact that in order for an ISP to fall under the safe harbor provisions of the DMCA that they are supposed to have a registered agent. But there is no requirement that the copyright holder have a registered agent, let alone the copyright registered with the US Copyright office.
RightHaven isn't even going after the ISP's, they're going after the infringers themselves. DMCA is about getting the infringing content taken down from the site immediately, whereas what Righthaven is doing is akin to the patent trolling from the late 90's.
No, I'm not talking about the copyright holder, I'm talking about the website owner.
For example, if someone was to post on this forum some copyright material, then sue Jon for it, he would not have any limitation of liability under the DMCA unless he has a registered agent. If the companies RightHaven was going after had a registered agent then they would be protected (granted they didn't intentionally post the copyright material themselves of course). Simple.
Sec 512 of the DMCA does absolve the OSP (i.e. website owner) of liability for copyright infringement automatically if they meet the req'ts (including a registered agent with the copyright office) under the Safe Harbor provisions. But, even if they didn't meet all of those (i.e. no registered agent, and most website owners don't have one), that doesn't mean there is no limitation of liability, it just means its not automatic protection necessarily.
The registered agent provision is there to provide a known "person/address" to send copyright infringment notices to, so an OSP can't say they never got them, or a complainer can't say they sued the OSP because they had no choice; couldn't find a way to make them know about the infringement nicely. Sooooo, in the above example of Jon/Wickedfire:
Jon may or may not have a registered agent for Wickedfire.com with the copyright office ( I don't feel like checking the official Register right now) Let's say for sake of argument, he doesn't. He could still be protected from liability if he met all the other reqs because the host of the site (in this case, Softlayer) does have a registered agent, and thus could be contacted directly, would be able to remove infringing content, etc etc. Another example is Wordpress.com. Thousands of WP blogs out there have potentially infringing content, but none of them need to have a registered agent, because the parent company of Wordpress, Automattic, serves as the registered agent for ALL blogs hosted on their WP platform, since they are in a position to be contacted, and potentially take down infringing content. As long as there is some registered contact person somewhere in a position to remove the content (even if they aren't the ones who actually do it), the Safe Harbor provisions are typically considered met, even if the actual website owner never registered themselves.
The DMCA is, IMO, a fairly poorly written reg, with lots of loopholes, but the underlying goal of it makes sense: to provide a means by which stolen copyrighted material can be removed without having to file a lawsuit every time some blogger copypastes a few sentences somebody else wrote.
Very interesting! I never knew there was some level of layering in the DMCA. I read it as Softlayer wouldn't be liable, but the website owner would still be, rather than Softlayer indirectly acting as the registered agent on behalf of all their clients.
Your example of wordpress from a technical standpoint is very different in my view. Wordpress owns the blog if they host it as it's part of their domain, therefore wordpress would be 'the forum owner' and the blog poster would simply be a user. The relationship between hosting provider to client, and website owner to user seem very different.
Correct me if I'm wrong here, but if an affiliate wants to do something like run autoblogs, and there is a chance of being sued for it, but they have no interest in appointing a registered agent, they should make sure their hosting provided is registered?
The emphasis is on "could", its one of the weaknesses of the DMCA language, but if the stated goal of having the agent is for there to be a locatable "person" with some authority over a site to remove content (as a webhost could), then I've seen firsthand that this can be accepted as an appropriate "agent" to stay within the protections of Safe Harbor, even if that agent isn't the one who will do anything about it. It doesn't mean Softlayer would be liable, just that the fact they have an agent may serve to protect Jon if a complainer (-cough Righthaven-cough) tried to use the lack of an agent as a "gotcha" to go straight to a lawsuit for damages.
When I send copyright takedown notices on behalf of clients, 99% of the time I "skip" the actual site where its at (usually by the time I'm hired, they've already tried playing nice with the site owner) and go straight upstairs to the root webhost. A Godaddy or Softlayer doesn't care what the site owner's theory is, they just 1) know the rules, and 2) don't want to get included in a lawsuit, and thus usually just take down the page/site at the source, much easier that way.
You are correct. The layering is the key here to falling under the safe harbor provision. Nonetheless, if you're the one hosting the blog, and someone else posts something that is infringing more likely than not they'll send a letter to you and the ISP that is hosting your blog.
Hey Aaron,
A lot of fake url names out there lately, like fqxnews or cnn5.com. I've actually had some issues with this before, but usually cease and desist, but i know some companies go all out with a civil case on the owners of the cnn5.com domains. They'll usually subpeona your private domain registration, and then procede to bully you to come to a court in the middle of nowhere, or you have to pay, kinda like RIAA.
My questions are,
1. What do you do when they subpeona your private domain registration?
2. If they do get your information what do you do next.
3. If you default, can they make you pay?
4. What do they really want? Do they want to scare people into not using there name? They want a cease and exist? or they want money?
5. is registering a name like fqxnews even playing "gray" or is this just a bad idea?
Look forward to your response.
V3NE
A lot of fake url names out there lately, like fqxnews or cnn5.com. I've actually had some issues with this before, but usually cease and desist, but i know some companies go all out with a civil case on the owners of the cnn5.com domains. They'll usually subpeona your private domain registration, and then procede to bully you to come to a court in the middle of nowhere, or you have to pay, kinda like RIAA.
My questions are,
1. What do you do when they subpeona your private domain registration?
2. If they do get your information what do you do next.
3. If you default, can they make you pay?
4. What do they really want? Do they want to scare people into not using there name? They want a cease and exist? or they want money?
5. is registering a name like fqxnews even playing "gray" or is this just a bad idea?
Look forward to your response.
V3NE
First, just wanted to say thanks mont and aaronklaw for answering all these question. Excuse me for my dumb questions, I just want to make sure I understand.
So is righthaven going after people site's that don't have a registered agent? Their hosting company doesn't even have one? If this is true, to prevent from going to court should people just get a registered agent so that RightHaven can just tell you to take the content down instead of settling out of court or going to court? Or it's just not that easy? Hopefully that made sense.
Also, what if they contact you and want to settle out of court or go to court. What if you don't respond to them and you have a court date but just don't go. I've never been in a situation like this so I'm curious how this goes down. What if you live in a different state other then Nevada (I believe that's where they are from) and don't show up? Will there just be a warrant out for your arrest just in Nevada or what happens? I'm curious how this would hurt someone if they didn't show up since it's in a different state.
Righthaven doesn't care if you have a registered agent or not, they're out for blood. All the DMCA does is provide safe harbor to the "host" of the content. If you're the one posting the infringing content then the DMCA doesn't even matter, its a matter of straight copyright infringment. If its someone posting infringing content on another site they go after that individual user. As far as what they can do, they'll file a lawsuit and if you don't show up they'll get a default judgment...which is what they'll hope for since you won't have a right (unless there are exigent circumstances) to challenge the judgment. Under the full faith and credit clause of article IV of the US constitution they can enforce that judgment in any state. So what they will do is domesticate the judgment in your state, record it, and then have a lien against any real property you own...or they can freeze your bank account (Joy!). Also if they have a judgment they can go to your service provider to have the content removed or have your site taken down.
I rarely ever recommend "ignoring" a letter or complaint, as most of the time it just makes matters worse.