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Copyright Troll Legal Notice
August 28, 2014 11:42 AM   Subscribe

FML Today I received a notice of "Unauthorized Use of Copyrighted Image" regarding a 7 year old blog post on my tiny, personal, completely not-for-profit website that only about 5 people ever read (that I had incidentally purged just 2 months ago) from a probable copyright troll (Sanders Law, PLLC). It isn't even signed by an actual lawyer, it's signed by a paralegal. I know YANAL, but I have no idea what to do or who I can turn to.

I don't even know where I got the image it was so long ago, it was just a photo of an old man and little boy walking in the woods to illustrate a funny story my husband told me. I never claimed to own or that I created the image, and I am pretty sure I had an attribution caption (I usually did, again it was a long time ago and the blog has since been deleted). They are claiming that I had the image up 4 times because of the way the site indexed things, and the minimum they are suing me for is $750 per image. I am a middle-aged college student on disability, this would destroy me financially and physically.

All the research I have done isn't really telling me what to do in this situation, it seems more geared towards downloading movies or for companies and businesses. EFF doesn't seem to have any resources unless it's a high profile case, and I sure as hell can't afford to hire a lawyer.
posted by evilcupcakes to Law & Government (28 answers total) 2 users marked this as a favorite
 
They aren't going to sue you. They are going to try to scare you into paying them money. That's the business model.
posted by Jairus at 11:44 AM on August 28 [8 favorites]


This is the letter they sent me:

SANDERS LAW, PLLC
ATTORNEYS AT LAW
------------
100 Garden City Plaza Suite 500
garden city, new York 11530
Tel: (855) 456-2240
Fax: (516) 281-7601
RE: Unauthorized Use of Copyrighted Image
Our File Number: *****

We are the attorneys for ******* and write you concerning what appears to be violations of the United States Copyright Law, Title 17 of the United States Code ("U.S.C."), which either you and/or your organization (collectively referred to here as "you") have committed and which have been brought to our attention by our client.

Specifically, 17 U.S.C. §106 provides, in part, that the owner of a copyright has exclusive rights to their copyrighted material, including the rights to reproduce the material, to prepare derivative works based upon the material, and to distribute copies of the material to the public by sale or other transfer of ownership, or by rental, lease, or lending. Your website www.*************.com has, based on our client's records, without a valid license or permission from the author, and therefore in violation of the aforementioned law, made commercial use of our client's copyrighted material. In the table included below there are copies of the copyrighted material in question along with proof of your unauthorized usage on your website. You may also view the data in this table at our website payonline.sanderslawpllc.com by entering the following access code "*******" which is case sensitive.

Unless you have proof of licensure, pursuant to 17 U.S.C. §504, you are liable for, at our client's election, either our client's actual damages and any additional profits earned by you attributable to the usage of the copyrighted material, or statutory damages between $750.00 to $30,000.00, for each copyrighted work upon which there was an infringement. Additionally, if the infringement was committed willfully, the court may increase the award of statutory damages to a sum of not more than $150,000.00 per infringement. Further, if we are required to file a civil action against you, 17 U.S.C. §505 allows the court to grant the recovery of the full costs of the action as well as our client's legal fees.

In order to avoid the possible commencement of litigation against you, please, take the following actions:

Valid License. If you are in possession of a valid license that was purchased prior to your use of the copyrighted material, please provide us with all of the necessary information concerning such license (e.g. sales order, invoice number or other license information). Under those circumstances we will update our client's records and consider this matter closed.

No Valid License. If you do not have a valid license for the copyrighted material, and you do not plan to use the material in the future:

You must immediately cease and desist the use of the material and immediately remove it from your website; and

You must contact us at (855) 456-2240 immediately to arrange a monetary settlement for the prior unauthorized use of the material. We can, at times, structure the settlement as a retroactive license for the usage of the copyrighted material so as to avoid any episode of infringement.

No Valid License, But Want to Continue Use of the Material. If you do not have a valid license for the copyrighted material, but you want to continue use of the material, in addition to the restitution set forth in paragraph 2(b) above, you can also negotiate for a prospective license which will allow you to use the material for use on your website(s). Should you require a license for any use beyond your website, you must contact our office to discuss this matter at (855) 456-2240.

Please note that simply ceasing to use the copyrighted material does not absolve you of the responsibility to pay for the material you have already used without a license. Therefore, unless there are other circumstances which you bring to our attention, just taking the material down will not make this matter go away and you must make arrangements with our office for settlement. If you have questions after reading this message and the Frequently Asked Questions included below, please contact our office at (855) 456-2240 or via email at copyright@sanderslawpllc.com. Please be sure to include your company name and our case number in any correspondence or message.

FREQUENTLY ASKED QUESTIONS.

What can I do if I believe I have received this notification in error?
Please contact us immediately at copyright@sanderslawpllc.com or call (855) 456-2240. Please be sure to provide our file number found on the attached letter as well as your name and company contact information.

What if someone else created my company's website?
Under copyright law, both you, and any third-party (e.g. designer, employee or company retained to design and/or develop your company's website) are jointly and severally responsible for infringement damages. That means that our client is able to recover in full from either you or from them. If a third-party who supplied the material is willing to settle on your behalf, please ensure that they immediately contact our office to arrange for a settlement of this matter. Please be aware that if the third-party is unable or unwilling to settle this matter on your behalf, we will continue to pursue remedies against you. It is your responsibility to ensure that this matter is resolved.

What if I simply remove the material from my website?
The removal of the material will not settle the prior violation. Since you have already infringed the copyright by using the material without a valid license, you are responsible under 17 U.S.C. §504 for damages to our client. Removing the material does nothing to resolve the prior infringement.

I found the images on the Internet; aren't they therefore free?
That a prior end user may or may not have had a valid license for the usage of our client's copyrighted material does not mean that you also had such a license. You are required to obtain a license from the rights-holder (e.g. author or photographer) prior to the usage of their copyrighted material. Therefore, while you may have believed the images were available for free use, all material for which you have received a demand letter required an appropriate license for their use. Additionally, please be advised that "Royalty-free" is an industry phrase that refers to a licensing model where the user pays once and has the continuing right to use the material without additional royalty payments; it does not mean that the material does not require a purchased license for its usage.

What can I do to resolve this situation?
Although you may not have been aware of your unauthorized use of the copyrighted material, it is still a violation of copyright law. Since the unlicensed usage has already occurred, and the Copyright Law has therefore been violated, payment to the rights-holder is required in order to avoid the filing, service and commencement of the attached lawsuit. Please keep in mind that in a copyright infringement lawsuit, our client is entitled to seek actual or statutory (as much as $150,000.00 per infringement) damages as well as our firm's fees for pursuing this matter. It is therefore essential that you contact our office to make settlement arrangements immediately and certainly no later than twenty days from receipt of this letter.

The above infringement information may also be viewed in full-sized images at our website payonline.sanderslawpllc.com by entering the following access code "*******” (case sensitive).

Stacy Berkowitz
Paralegal

Sanders Law, PLLC
100 Garden City Plaza Suite 500
Garden City, NY 11530

516-203-7600 x 3228
Direct Fax (516)282-7847
posted by evilcupcakes at 11:45 AM on August 28


For $750, they are not going to spend a lot of time on this.

This is not a court order from a judge. They can not compel you to pay anything.
Throw it in the trash.

If you get served a subpoena, then you have a problem.
Right now, you have a troll.

Though, I would keep an eye on your credit rating, as they might try to attach something to that.
posted by Flood at 11:47 AM on August 28 [13 favorites]


You do nothing. You ignore the letter. They are not suing you, they are asking for a settlement. If they were suing you, you'd know (and they wouldn't do it by email, as it looks like you got).

On the very, very, very off chance they actually do end up suing you and they take it to court and they win the case, they will not be able to recover much/any money from you since you don't seem to have much money.
posted by saeculorum at 11:48 AM on August 28 [4 favorites]


Yes, it was indeed an email, not a letter.

I was fairly certain they were just trying to shake me down, but I wasn't sure if there was an established or recommended procedure for dealing with these assholes.
posted by evilcupcakes at 12:03 PM on August 28 [1 favorite]


I was part of a volunteer project whose website got a couple of these emails years and years ago. I didn't manage the website, so I only heard about this in meetings. But the group pretty much looked at the emails, decided that they were a bullshit scam and declined to reply. (Also, we didn't have any money.) Nothing happened.

This is virtually certain to be a scam. They hope that you will get freaked out and offer them as much money as you can possibly rake together, all for the negligible cost of a web search and printing out a form letter. After all, consider how many tiny blogs and so on exist on the internet and use random photos. If large numbers of them were actually getting sued, incurring huge court costs and having to pay big fines, there would be stuff about it all over the internet.

This is a form of shake-down, and I suggest that you start by ignoring it.
posted by Frowner at 12:04 PM on August 28 [4 favorites]


If you personally are friends with a lawyer, you may be able to enlist their help for a "fighting fire with fire" approach - ask them to write a letter that doesn't really threaten anything, just makes your own case back or asks for further details or something - but then your friend would sign it with their own "attorney at law" status. It's not an official legal communication from your friend as such, and your friend isn't necessarily saying that they are YOUR lawyer, but the troll won't know that.

This is exactly the approach that my theater company took when a film company in California wrote us because he happened to pick the same name for his film company as we did for our theater, and threatened to sue us for some kind of copyright infringement or something. One of our friends is a lawyer - an employment lawyer, mainly, but a lawyer nonetheless - and she just wrote them a note stating that to her knowledge, we picked the name first, and signed it with her name and "Attorney at Law". The guy never bothered us again.
posted by EmpressCallipygos at 12:12 PM on August 28 [1 favorite]


People have lawyers throw stuff at the wall (in the form of threatening letters) just to see what sticks. I know first-hand that this is a tactic to compel people to do something without having to actually spend money on a legal suit. The likelihood they will actually sue you is very small. This would not be worth their time to pursue.
posted by AppleTurnover at 12:17 PM on August 28


IANAL, TINLA

I would ignore it for now.

If you still had the blog up, I'd recommend removing the image (unless you really did think you had a right to use it).

That being said, in the highly unlikely event that they actually became serious about this (sending a physical letter, filing suit), I'd recommend contacting your state's bar association for assistance in finding pro bono assistance in your jurisdiction.
posted by sparklemotion at 12:17 PM on August 28 [1 favorite]


Anecdote! The very small company I work for got a similar letter, via snail mail, about an image we had randomly found on the web and slapped on our businesses website. In our case the image was currently still on our website. What we did was remove the image from our website and completely ignore the letter. That was about 2 years ago. Nothing else has ever come of it.
posted by ZabeLeeZoo at 12:18 PM on August 28 [2 favorites]


Is your website still up? I would take the relevant images down. Under federal copyright law, plaintiffs are entitled to statutory damages, if you don't take it down after being given notice. Of course, they're still entitled to actual damages before they provided notice.

I am NOT a copyright lawyer, so YMMV.
posted by learnsome at 12:22 PM on August 28 [1 favorite]


Yes, I actually deleted the whole blog about 2 months ago, so the image isn't online. That's why I was baffled about getting this now, after almost 7 years.
posted by evilcupcakes at 12:35 PM on August 28


Here are some posts by someone who was contacted by the same firm: http://www.mizozo.org/search/label/Extortion

I am a lawyer, but not your lawyer. I am not admitted in New York or Puerto Rico. The below does not create an attorney-client relationship between you and me. If you need legal advice, you should hire a lawyer. That said, I suspect the suggested response below will cause them to stop contacting you:

If it was me, I'd write back and say something along the lines of:

"Hi Stacy,

I deny that I am liable in any way to {Company}. Before I dignify your extortionate threats with any further response, there is an important matter that you need to clear up.

I note that your letter claims you are an "attorney" for {Company}. This is somewhat confusing because the New York state bar has no record of your admission. As I'm sure you know, holding yourself out as an attorney when you are not is a crime in New York. See N.Y. Code § 6512. So this discrepancy gives me some concern that you are not who you purport to be. I'm sure you can understand why I would need to have this matter cleared up before engaging in any further discussions with you.

Of course, if this is simply a problem with the New York bar's database, it won't be necessary for me to report your firm to the state bar or report you to the Attorney General's office. Therefore, within 30 days, please forward me documentation establishing that you are (i) an attorney and (ii) authorized to represent {Company} in this matter. Once I've received that documentation, I will consider whether to respond further to your demand.

Sincerely,


evilcupcakes
posted by ewiar at 12:42 PM on August 28 [59 favorites]


you are liable for, at our client's election, either our client's actual damages

They would have to prove damages, which would be more expensive than the actual damages... Ignore it.
posted by Gungho at 12:49 PM on August 28


First, and most to the point: you should totally follow ewiar's advice because it is comedy gold and also because it is tactically the correct thing to do.

Second, though, I'm not sure I would characterise this as trolling; it would more accurately described as trawling, presumably for cash. I mean, they are not just randomly trying this on; you did, in fact, infringe their client's copyright.

Which is not at all the same thing as saying you should fork over the cash; you absolutely should not.
posted by DarlingBri at 1:31 PM on August 28 [6 favorites]


Have they established that they actually are the intellectual property right owners of this image?

Here's a forum where people have talked about their interactions with this same company, in case you are wondering what kinds of things have happened with others who have received the same letter. I don't share this to scare you, just to be informed.
posted by SpacemanStix at 1:38 PM on August 28


Here's a forum where people have talked about their interactions with this same company

That link appears to be about a company called BWP Media USA, and has nothing to do with the company you mentioned.

While ewiar's response is hilarious and I'm sure would be satisfying to send, if it was me I'd go with "ignore and move on." They probably just scraped your email off the site and wouldn't even be able to figure out your postal address to contact you in any official way.
posted by drjimmy11 at 2:17 PM on August 28


I have no idea what to do or who I can turn to.

Depending where you're located, there should be options much closer and more locally focused than the EFF. And you should be able to find something affordable, at least for a consulation. Just as an example from my own backyard, Rhode Island's state bar association operates a Lawyer Referral Service that provides a free half-hour consultation. By comparison, the state of Washington has CLEAR, a publicly funded organization that connects low-income people with free legal assistance; but the state bar association itself appears to divide lawyer referrals by county. In Clark County, attorneys promise not to charge more than $75. Over in Whatcom County, consultations cost a uniform fee of $45.

I hope that's helpful. I sympathize with the common feeling that legal help is not affordable. There are indeed options in many situations, but as a profession we sometimes fall short at conveying them.

I suspect the suggested response below will cause them to stop contacting you...

If you are an attorney then I would advise you to speak with your state's ethics counsel (or equivalent). I suspect you will be advised that no matter how many times you state, "This is not legal advice" in comments you publish on the Internet, if you do in fact give what constitutes legal advice, then you are committing professional misconduct.
posted by cribcage at 2:37 PM on August 28 [2 favorites]


That link appears to be about a company called BWP Media USA, and has nothing to do with the company you mentioned.

Further in, discussion brings up Sanders Law, which is the lawfirm that represents BWP. They use similar tactics, signing the same kind of letter by someone named Stacy Berkowitz. You can navigate via the page arrows at the top, which are kind of obscure. Here, for example.

There is some good information there about the tactics employed. Don't be paranoid, but be informed about other people's experiences with this lawfirm.
posted by SpacemanStix at 2:47 PM on August 28


Over in Whatcom County, consultations cost a uniform fee of $45.

Actually, I live in Whatcom county. I had no idea there was affordable legal help here.

To clear up a misconception, I am not technically "low income". My husband makes a reasonably decent living. However I have multiple sclerosis, rheumatoid arthritis, AND I was just diagnosed with lupus on Monday (seriously, I am like a lightning rod for auto-immune disease), and we have really horrible insurance, so my medical bills each month are BEYOND astronomical. This has caused many problems over the years because we look fairly solvent on paper, but we are living paycheck to paycheck. Any additional financial burden of that magnitude would mean being unable to cover my medical bills each month.
posted by evilcupcakes at 3:02 PM on August 28


Ignore it. Also, you may have ways to improve your financial situation using the insurance exchange and/or premium assistance - please do what you can to look into it if you haven't yet.
posted by michaelh at 4:15 PM on August 28 [1 favorite]


I wonder if Sanders Law owns the copyright of every image they are posting on LinkedIn using Ow.ly.

I'd ignore it.
posted by daninnj at 7:22 PM on August 28


The kind of letter you received were really common topics when I first joined art communities. Copyright law is very confusing to most people, and it's really easy to take advantage of others as a result.

Most of the artist I knew would send professional/legal sounding cease and desists, much like yours, threatening to sue for money if images weren't removed - but never demanding payment outright for images that were already removed. In my experience the cease and desist was always used to deter someone from reposting/reusing an image. It was a threat with real, legal backing--real consequences. The point was/is to just get you to stop though. And it does have its limits, as I know many artists who tried to take it to extremes--such as thinking they can sue someone who downloads/prints their art and happens to hang it up so its in the background of a YouTube video.

But this is another thing entirely. It's increasingly common because there's tons of long-forgotten websites laying around, and it's bullshit--they're throwing letters out in hopes that their legal jargon will scare some people unfamiliar with copyright laws into just tossing money at them. Whomever owns the copyright and is threatening to sue has to prove you caused the artist damages. That will be practically impossible to determine and if it is determined, it would be a paltry sum - there is no way your old and limited use of the image caused any significant 'damages' to the artist. They will have to prove 4 uses of that image 7 years ago somehow cost artist X amount of income. I have no idea how they could calculate that--and I have direct experience being the artist in this sort of situation. Mail me if you'd like to discuss that further.

You may also want to look into Fair Use.

But yeah, this is scammy as hell. I would ignore and if they try to engage again go with ewiar's response.
posted by stubbehtail at 7:42 PM on August 28 [1 favorite]


Fair use will be an unavailing argument. There is no way using someone's unaltered picture as an illustration accompanying a writing that does not comment on the picture would constitute fair use.

Those who suggest you do not engage and ignore the email have the right idea. Most likely there will be some follow-up from them because it doesn't cost anything to automatically send out a boilerplate follow-up after however many days of no response, and they probably have thousands of these on the line.

As others have noted, there is no way they would be awarded statutory damages here. Moreover, considering that you have not sold or otherwise made money from the image, I think they would have a very hard time establishing that you made "commercial use" of it. So, if there is no profit you made in connection with the image that would be properly due the owner, it comes down to showing that there have been actual damages to the owner. That would be a tough row to hoe as well. It's not like you have a hugely popular blog and the owner's image was seen by so many millions of people that it no longer has any commercial value. There is no way they don't already know this. The appropriate legal act of someone attempting to protect his IP in a situation like this is to get the image taken down, not seek monetary compensation.

If you can get some free legal advice, that's probably a good idea. For your peace of mind if nothing more.
posted by slkinsey at 5:48 AM on August 29


[One comment edited at its poster's request, to remove sensitive information.]
posted by goodnewsfortheinsane at 6:31 AM on August 29


This is what the delete button is for.
posted by WeekendJen at 6:52 AM on August 29 [1 favorite]


As others have noted, there is no way they would be awarded statutory damages here.

I would be very careful saying or believing that. We would need to know far more, before we can say that. Since the site's already down, no worries in this particular case, but I don't want future folks to look at this thread and think that statutory damages would be precluded.
posted by learnsome at 10:26 AM on August 29


To clear up a misconception, I am not technically "low income".

This also is a common problem, dissonance between financial reality versus on-paper. There are ways to alleviate it. This is something else you might consider seeking help with. If you have a bank, especially a local one, you might ask there. You can also request legal assistance from the resources mentioned above, or reach out to nearby law schools and ask whether they have resources (clinics, etc) that provide civil legal aid. There may also be senior services available depending on your age, as well as adult-education resources. Try asking around your local libraries.

Point being, that problem in itself is something you can request help with: "My papers say X, but my reality is Y. What can I do?" You don't need to wait until that problem causes another.

I don't want future folks to look at this thread and think that statutory damages would be precluded.

Agreed. For clarity's sake, let's state outright this is the Internet and people can "favorite" any comment for any reason without it necessarily being good advice. Do not take legal advice from strangers on the Internet no matter how well-endorsed it seems. If they are indeed attorneys, they aren't allowed to give it. If they aren't attorneys, or if they are attorneys inclined to disregard that rule, then no surprise that it often turns out to be poor advice.
posted by cribcage at 11:03 AM on August 29


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