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Sometimes though, the sites can just be confusing. I remember going to a site and downloading a few, as advertised, "free" pictures before realizing that at the bottom of the page there was a box to use credits to download the pictures.
In May a photo thief posted my photography on the Photobucket website, and though they did remove it upon receipt of my copyright notice, they re-posted it immediately after the infringer submitted a counter-claim. Photobucket's policy states that they "may" re-instate a photo, making it appear as though the decision is arbitrary.
Reposting a photo that a counter-claimant says was removed by "mistake" may be the norm. But, here's the kicker. The infringer already had posted on his Photobucket page that he had not taken the photograph. In fact, he posted that he never would have taken such a "horrible, ugly photo." He posted those on his page, directly above my photograph.
Not only did this person steal my work, he also was admitting it. He was libeling my work, and infringing it, in plain view of the Photobucket "copyright agent". The bogus claim never should have been allowed.
There's more. On the day the infringer uploaded my photograph to Photobucket, he posted an invitation to other users to email him the name of the true photographer. He knew beyond doubt the photograph was mine, and he knew my name - my first name. I believe he hoped some unsuspecting and helpful person would provide him with my last name. This infringer has been stalking me on the Internet for eight months.
I asked Photobucket's copyright agent, in emails and in faxed letters (the site offer no phone support), to go to the violator's page, where he could see solid proof the counter-claim was a fraud, but I assume that either the agent chose to not read it, or he simply didn't care.
The upshot was, after two months of seeing my photograph, which happens to be a commercial shot, denigrated on the Photobucket website, with no action taken against the infringer whatsoever, the infringer removed my photograph. The libel is still on his page.
NSB: Unfortunately, there is a major problem with that. First is that the actual infringement comes from the copying of the image and making another one available online. It doesn't matter if it's to a few friends. Second, most social networking sites are also available to the public at large. Your page might only be seen by a few friends, but it is available all over the world. Simply put, the size of the audience of a Web page does not change whether or not it is infringing.
RS: I'm glad that you liked the article, as I said, it's going to be an ongoing series, the next one is already up as of this writing!
Will: Unfortunately, the fact that a photo is for sale actually makes the potential infringement worse by raising the actual damages that can be claimed. One has to be careful about those things. If a site doesn't clearly explain its license, you could argue that you were an "innocent infringer" but that does not necessarily offer much protection. It's up to the person using the image to find out what the license is, obtain permission and use it appropriately (or determine the likelihood of fair use). It's a permission culture when dealing with copyright and if you don't have it, then you could be held at least partially accountable for the infringement.
Bright: As I said above, Myspace pages and whatnot are available world-wide and do appear in Google/Yahoo results. They might be intended for only friends, but non-private pages can be viewed by anyone and can negatively impact copyright holders, especially if the work is plagiarized, as is often the case with my work.
Kate: Actually, as strange as it is, that's how the DMCA is supposed to work. Yes, Photobucket says "May" and I"m sure there is some flexibility in their decision, but the law necessitates the putback of the work. They did the right now.
However, in doing all of that, the thief has opened themselves up to a world of hurt. First, the could be guilty of criminal perjury. Second, they could be liable for up to $100,000 damages and attorney fees. Third, they could be held liable for, well, libel. Fourth and finally, they have made a copyright claim against themselves very easy by providing their full name and information.
My advice would be to speak with an attorney and go after the plagiarist, not PB. They were only doing what the law required them to do. Could they have kept the infringing work down? Yes. But then they might have been held liable for chilling the speech of the infringer.
These companies live to avoid legal risk and they aren't going to take a bullet for anyone. My advice would be to fire some at the plagiarist and watch everyone else jump out of the way.
After receiving his counter-claim, the copyright agent at Photobucket could have gone to the infringers page (I made this request in several emails and faxes), and there, he would have seen proof of infringement. Directly above my photograph, instead of posting a title, the infringer had typed: "Did you do this? Email me." He posted the words on the day he uploaded my photo to the site, and the words remained there, after I faxed my copyright notice. When Photobucket removed my photo - but before they re-posted it - the infringer typed this on his page: Maybe now the freak will go away. Those are guilt words. All the agent had to do was to look at the page.
What makes this particular violation so odious is the sham of the counter claim. Here, you didn't have some ordinary sneak trying to get away with infringing a photographers copyright. What you had was an arrogant person flashing a neon sign around his own admission of infringement!
Egregious, too, is the fact that for three months this infringer has been soliciting users on Photobucket to email him personal information about myself. How appalling is that? Photobucket promotes itself as a photo storage site, a place for adults, and teens, to upload pictures for friends, family and the general public, if they like. It is not supposed to be a stalker's message board.
Why did Photobucket allow his bogus counter claim? Why are they allowing anyone, for that matter, to post libel about a photographer's work? To smear a photographer's blood, sweat and tears with libelous comments such as: "horrible, ugly photo" and freak amateur? Why are they allowing stalkers to solicit personal information about others? Why have they not banned this person? Believe me, I have asked Photobucket these questions, but they choose not to answer. For now, I assume Photobucket was too lazy to look at the infringer's page, or they were, and are now, completely indifferent to the situation - neither of which is a viable excuse under the tenets of the DMCA.
The infringer, not Photobucket, removed my photography. After two months. However, the libel about me remains on his page. According to Photobucket's guidelines, and TOS, the site was meant for users to post pictures, not to denigrate pictures belonging to others. By not pulling his libel, Photobucket is in blatant violation of their Terms of Service. Furthermore, they are aware that the infringer's page is public, and also, I make my living in photography. I have been worried for months that the libel will be seen by my commercial clients. Have I mentioned that the infringer also posted on Photobucket a defaced version of my photograph?
From my own recent experience (I suspect there may be other victims who havent spoken up), Photobucket did not comply with the DMCA, and their own TOS. I urge everyone, especially commercial photographers, to stay away from there.
As for the infringer's Free Speech, no one on a photo sharing website, or anywhere else on the Internet, has a right to libel another person's livelihood. That's why websites have a TOS. It is unfortunate that many of them, including Photobucket, won't enforce their own Terms of Service.
Why did Photobucket allow the bogus counter-claim?
Because they had to. The law requires putback after 10-14 days after a counter-notice is received if they do not receive an injunction regarding said putback. Even the fact that the infringer admitted the work was not his does not necessarily prove that it was infringement, at least as far as Photobucket is concerned. Counter-notices are regularly filed for fair use cases and fair use can, in some instances, involve the entire work, especially when dealing with images.
Photobucket was in no position to make judgments about whether or not this use was an infringement, even if they were, could not do much under the law. Section 512(g) covers this pretty thoroughly, their hands were tied by the law once they received counter-notice and did not receive a court order.
Why are they allowing anyone to post libel?
Because under Communications Decency Act they have no obligation to act on such claims. Courts have generally found that hosts are completely immune from libelous statements they have no control over.
Why are they allowing stalkers to solicit personal information?
I admit I don't know the laws in this area, but this is something you might want to report to their abuse team specifically. It is not a copyright issue, but there may be other abuse violations here. See their terms of service section 5e for more information.
All in all, Photobucket followed the letter of the DMCA pretty closely from what I'm hearing. Is it fair to you? No. But that's because you're dealing with a judgment-proof defendant that can't be sought after in court. The DMCA was not designed for these types of conflicts nor really should it be.
My advice is to take these stalking and libel issues to the Photobucket abuse team (libel is also disallowed under 5e) and put it in their hands. Don't go through their copyright team, contact their abuse team here:
http://photobucket.com/contact
Those issues, to me, are much more serious and few hosts will tolerate them.
As far as the question marks go, did you perchance type your original post first into Microsoft Word or a similar program and then paste it over? The reason is that most advanced word processors use curved apostrophes and quote marks. They can understand them fine, but Web forms can only understand straight ones like these (' &").
Since the form doesn't understand the character, it gets replaced by jibberish. You can generally overcome this by first converting your file to plain text and opening in Notepad/Textpad before copying it.
Hope that helps! Please let me know what I can do, I am here to help, believe me.
Their stony silence indicated to me that they have little, or no, regard for the DMCA, and their own TOS. What they did was wrong. Their actions, or lack of action, does not fall under the fair use exclusion.
"Fair use" is a legal "defense" to copyright. It was created to allow use of copyright material for purposes such as commentary, parody, news reporting, and education, without permission of the copyright holder. A typical instance would be a brief quotation from a book as part of a book review. Uses allowed by "Fair Use" are normally a small portion of a work and include an author credit and attribution. Fair uses are generally for non-profit purposes.
Most fair use situations involve text. It is difficult to imagine any situation involving the Internet where someone copying a photo could claim the fair use defense. In typical infringement activities, such as unauthorized posting to Usenet, stocking websites from Usenet trolling, illegally posting a photograph on a photo storage website, or simply copying to a blog- the fair use doctrine does not apply. Because the pirate is taking 100% of the work, and is not acknowledging the artist, he is hurting the work's market value, and is competing directly with the creator or licensed user of the work. This is foul play, not fair use.
A photo pirate should not think about the fair use doctrine. As for Photobucket, you said in your comment that "even the fact that the infringer admitted the work was not his does not necessarily prove that it was infringement, at least as far as Photobucket is concerned." Well, I suppose Photobucket could claim ignorance of the law until the cows come home. But the fact is, they are in the photo posting business and therefore should have a pretty clear idea of what constitutes fair use, and what doesn't. Surely, they, or their lawyer, knows that the purpose of any photo storage website is entertainment. Sites like theirs do not instruct, nor are they intended to be used for critiquing artwork. They are not literary journals, magazines or newspapers. The fair exclusion does not apply to Photobucket.
Nor does it apply to infringers who upload photos on their website.
A common myth used by infringers is: "If I am not making money off the photos, I am not violating copyright." Infringement is not excused if someone is doing it for some reason other than profit, such as malice or the collectivist notion that an individual's creative work "is free for all to use." These are the typical excuses of people who steal the work of artists. The court may fine such people more, or treat them more harshly, if they have a profit motive. But they can still get punished - badly.
Violating copyright is illegal whether it is done for money, competitive advantage, or malice. In my case, it was malice.
I stenuously disagree that once the infringer of my photograph submitted a counter claim to Photobucket, their "hands were tied." Such an argument could apply if an infringer claims copyright, but this infringer went out of his way to state - on his Photobucket page - that the photograph he posted was not his, that he would "never take such a horrible, ugly photo." Why do you think Photobucket never admitted to me that they looked at his page? I believe they didn't want to admit they had seen the proof of his infringement. They had a bogus counter-claim on their hands, and either didn't know how to fix that, or they simply didn't care.
Here's the bottom line. A stalker uploaded my work to Photobucket without my consent, and then denigrated it. A lawyer would laugh at a defense of "fair use", and the judge would have no sense of humor where thieft is concerned.
As for your comment about the Common Decency Act, as pursuant to libel, I have a swift reply. Why do certain websites bother to have a TOS, if they have no intention of upholding it? It would appear they give authentic-sounding lip service to the TOS, because it lulls users into a false sense of security and protection. I have researched the Common Decency Act. While it's sadly true that it dovetails with the wild-wild-west mentality so prevalent on the Internet today, it does not give people license to denigrate the livelihood of others, or damage their professional reputations.
I reported everything to the "abuse team" at Photobucket. Several times. They couldn't have cared less.
Unfortunately, until people let shady websites know that a wanton disregard for the rights of the majority will not be tolerated, and until users hold websites accountable to their own Terms of Service, the posting of libel, and other filth, by sickos will continue. Copyright infringement also will continue, and flourish, as long as violators think they can get away with it.
It is the responsibility of every website to abide by the DMCA.
All in all, Photobucket followed the letter of the DMCA pretty closely from what I’m hearing. Is it fair to you? No. But that’s because you’re dealing with a judgment-proof defendant that can’t be sought after in court. The DMCA was not designed for these types of conflicts nor really should it be.
and it certainly wasn't designed for that type of conflict. i don't believe it was designed to keep people from using images on their websites for purposes of conversation rather than business either. i'm assuming you're familiar with lawrence lessig's work on copyright law, and i'm simply curious about why you seem to be championing uses it doesn't seem suited for. in short, plagiarism is not exactly the same as copyright violation.
the dmca is clearly not serving much of a purpose if companies follow it to the letter by removing work that is contested, but not in any way that makes sense. it seems to be useful when dealing with large, moneyed entities like corporations, but worse than useless when dealing with high school students and deadbeats.
I'm sorry about that, consider it an old habit from both marriage and running this site, I answer every question directed at me. It's an annoying habit.
I can't answer all of your points, as you seem to have made up your mind, but I do want to note at least a few points of contention.
First, your comment about fair use being mainly about text is outright false. There have been many cases involving fair use and images, Kelly v. Arriba and Perfect 10 v. Google just to name a few. Do they apply to your case? Most likely not, but it proves that fair use is possible with images, even when using a whole image. Both of those centered around thumbnails for search engines, others have centered around use of images for commentary and review. Photobucket is in no position to debate the issue of whether or not their use was fair.
Second, you have to realize that the DMCA is a very rigid system. There is little room for flexibility here. You might not want to believe that their hands were tied after receiving counternotice, but consider that Wendy Setzler, quite legitimately, got a clip from the Super Bowl put back in her YouTube account after a counter notice. The use was indeed fair, though the NFL submitted another DMCA notice.
If you listen to my latest podcast, you'll hear a similar DMCA/fair use battle is brewing up over a jingle from a law firm, this one less likely to be fair use.
I'm not saying this use was fair, I don't believe that it was, but the host is not in a position to make that judgment. If you wish, I will gladly put you in touch with any of my attorney friends and have them look at your case and see if there are options I don't,
As far as why do hosts have TOS that they don't enforce, I've wondered that myself and spoken out against it. However, much of it seems to deal with that TOS are written to CYA. Most hosts will only remove what they are legally obligated to remove, even though they have to take a stand against a much broader array of things to shield themselves from other forms of laibility. Libel seems to be one of those areas of conflict. They can't encourage it, even tacitly, but aren't required to remove it or act on it when discovered.
I think we agree more than you realize. I agree there were ethical issues with how Photobucket has handled this and I would like to see more effort from them, but the law, as I read it, protects them.
I am sorry to say that as I truly do sympathize and want to help.
Bright:
Yes, I am very familiar with Lessig's work. He and I have actually spoken on several occasions and his retirement from the copyright arena was a great blow to me. I actually consider him something of an idol in this area, my own CC license is something of an homage to his impact.
If someone wants to copy my work and post it on their site, with proper attribution, I am fine with it. See the CC license again. But I know that others don't agree with me and that is their right. Lessig understood that and acknowledge that CC wasn't for everyone.
I agree that copyright law is not ideally suited for "students and deadbeats" but here's an intersting fact. Of the plagiarism of my own writing I've seen in the past year, over 60% of it has been on social networking sites. Most of the remained has been on blogs. If someone uses my work with attribution, I leave them be, as per my license, but I will not tolerate plagiarism and you yourself indicate a disgust with that.
Why do I help others who are just protecting their copyright and not necessarily dealing with plagiarism? Because I don't think anyone should be forced into a license agreement they don't want. If they are hurting themselves, as I suspect in some cases at least, I view it as their decision. I've written several times about the benefits of CC licensing and copyleft, but everyone has to make their own call.
In the end, the free market, not the law, will decide what uses are acceptable. The law moves too slow. In the meantime, all artists deserve a voice in that. I'm not going to deny someone the tools to defend their legal rights just because I think it is a mistake to do so. I don't know their situation, I don't know their beliefs, it is not my place to say.
I believe in letting people making their own decisions about right and wrong and, so long as their decisions do not run afoul of the law, I respect their wishes.
All in all, I try to keep my personal views about licensing and copyright out of the equation and stick to the law itself. If people ask my opinion, I give it, but otherwise stay out of it.
I don't see that as championing, but perhaps pragmatism.
I hope that helps you understand where I'm coming from. I think we're, much like Kate and I, are more on the same page than is obvious at first glance.
This problem is going to contnue, and proliferate like a runaway train, as long as people make excuses for infringers and for the websites that allow violators to "get away with it."
I will grant you, what happened to me may be unique, since my infringer admitted - no, he boasted - that the photograph he uploaded to Photobucket.com was not his own. He knew the photo belonged to me, and he didn't give two hoots about attribution. I am not surprised the DMCA doesn't cover the behavior of an infringer who is so whacked that he actually brags about his crime.
But the fact that the DMCA doesn't cover what to do with bragging sociopaths is beside the point, really. We have many laws in this country that govern the taking of property. All websites, including Photobucket, are accountable to the law.
Much of the law is common sense. You don't steal photographs. You don't brag about your crime on a public website without paying the consequences. At least, that's how it should have gone. That Photobucket chose not to comply with the law, and their own TOS, is their problem. You can site fuzzy loopholes all day long, as can their lawyer, but the law itself is clear. Photobucket had no legal right to allow an admitted thief on their website to post a stolen work.
As long as the shady websites choose to look the other way - out of indifference, greed or laziness - Internet crime is going to worsen and artists who care about their copyright will be shut out completely from showing their work online.
Do we really want to pat the collective heads of questionable websites like Photobucket, who refuse to stop copyright infringers and and all the others who refuse to shut down stalkers? I don't.
http://s197.photobucket.com/albums/aa226/nanci_...
They changed my artworks name from Painted Pony to Painted Woman as you can see in the link above (note the BUY PRINTS) tab.
Then I discovered that a lot of my artwork is all over Photobucket under different names and in different galleries and all for sale!! This is blatant copyright infringement. I filed a DMCA with Photobucket and they removed one of the images but as fast as they remove them more are being uploaded. Photobucket claims no responsibility in what their users upload...but they sure dont mind making a profit through Qoop their affiliate printing service. So basically they have a loop hole to print and sell counterfeit merchandise, make the money from said sales and the Artist never even knows. They dont ban these repeat infringers either...just remove one item at a time. I can't fill out DMCA's fast enough to keep up. Photobucket is full of artwork being used and sold without the Artist's knowledge or permission.
If you are an Artist people can steal your work, upload it to photobucket and Qoop will print it on anything and charge accordingly without you ever even knowing it. Or pictures of your dog...or children for that matter..Resolution is of no concern - they will print it anyway.
These photosharing companies are creating situations where Artists have to compete with themselves. They are creating counterfeit merchandise and profiting from the unknowing public. This is illegal and just wrong!
I believe that Photobucket could stop this by making the accounts ''private' by default. Accounts not set to 'private' offer the media in each account up for sale. Perhaps even a simply worded disclaimer to educate those uploading content...lets face it, most normal folks know nothing of IP rights, and are just 'collecting' work that they like. They have no idea that what they are doing is wrong, and in most cases that it is even for sale.
Any Advise?
Thanks, Sandi
First this is first, beautiful artwork. I would love sometime to talk with you about your art and perhaps introduce you to my wife. Though your works are very different in style, it seems you two share a common thread in subject matter and interest.
That being said, there are three problems I see with this situation.
First, the DMCA requires that OSPs ban repeat infringers. However, it is not clear about how this ban should be performed. I can ban a user account easily, but that doesn't mean squat if the person can just create another account.
Second, the DMCA does not protect the host if they profit directly from the infringement. The DMCA protects them if they merely host the image, but once they start selling it and making money off of it, that law does not theoretically apply.
Finally, Photobucket and other image sharing services have not had the copyright pressure put on them of YouTube and various audio sharing sites. To my knowledge, they have no technology that detects infringing images as they are being uploaded and filters them out. This technology does exist, I have seen it, but its use is not widespread.
It is unclear exactly what is going on right now. It could be several things.
First, we could be dealing with morons who are uploading these images for use on their own site and not thinking twice about the "buy prints" feature. That feature of PB seems to actually be little used and the vast majority of images don't sell at all.
The other option is that it could be someone uploading a bunch of art into PB so that they can have prints made for them to resell. This could be someone at a flea market or a county fair type stand.
Given the spammy nature of the username, it is unlikely that this person uplaoded it with the intent of getting revenue from strangers printing the images. I doubt that could ever be a viable option without serious promotion.
Looking at the images and the fact I was unable to find any of them linked elsewhere on the Web, the second seems likely. The good news is that 500 x 500 is far too small for a good print. You need at least three times that for even a 3 x 5 photo.
Considering that all of the images in the gallery are low-res, that calls into question my theory. It could, after all, be that the images are in a private forum the search engines can't reach.
As far as plan of attack goes, there are several things I would say.
First, no matter what, register your works with the Copyright Office immediately, if you haven't already done so. This will provide you better protection of your work and expand your options.
Second, keep up with the DMCA notices. Be a thorn in PhotoBucket's side if needed. Get them to realize how repeated this is. If you keep this up, they might realize what is going on and take steps to stop it.
One technique I used with Google is to collect as many links as possible and drop them in one notices. It tends to get people's attention.
Third, consider watermarking your photos. I know, it isn't preferred but it can help. If you want, I know some great invisible watermarking solutions we can talk about over email.
Fourth, consider contacting an attorney. You need to know if they actually sold any copies of the photo before you can consider taking any action legally. An attorney can help with that. If you need, I can also help you with that process.
Finally, keep on top of the situation. Don't get frustrated that PhotoBucket isn't doing more to help and stop taking action. There are further steps to take, but it is important to keep up the pressure in the meantime.
Please, send me an email when you get a chance and we can discuss some more detailed ways of getting on top of this and resolving this.
I have little doubt that, by working together, we can put the breaks on much of this.
I hope to hear from you soon!