An Honest Mistake
Recently I was sued for $600,000 by Vincent K Tylor VKT, a professional photographer based in Hawaii. Four years ago a student working for me included one of VKT’s photos in this blog post. The photo was obtained from a free photo website. I now know (and want you to know) that even if an image has a big “Free Download” button on it (VKT’s image was and still is on hundreds of free-download websites with no watermark or copyright identification on it), it may not be available for use without written permission.
The Sanctity of Copyright
The sanctity of copyright is of personal importance to me. We’ve had people infringe on original work from our Vermont Woods Studios website. A few years ago I blogged about someone who I believe is trying to trick people into buying his furniture by making his logo and website look like mine. So I understand how it is to feel someone has stolen your work and I totally support a content creator’s right to protect and enforce his/her copyrights. When I received notice from Vincent K Tylor about the alleged infringement I immediately took down the photo and called him to apologize, explain and make restitution. He would not talk to me.
$600,000 For A “Free” Photo The Size Of A Postage Stamp
Actually $600,000 was just the start. In his lawsuit against me Vincent K Tylor also sued unknown people (“John Does”) who allegedly entered into a “conspiracy” to “commit wrongful acts” related to his photo. That part of the lawsuit looks like it was copied and pasted from another case. But regardless of the quality or legitimacy of the lawsuit, the accusations were serious. They threatened the very survival of my small business and created a living nightmare for me. I was forced to retain attorneys and shift my attention from running a business to worrying about copyright litigation.
Copyright Trolling: A New Industry
Most copyright owners are legitimate and fair-minded, but there are a few who have learned to abuse the system. Known as Copyright Trolls, they have shifted their business plans from creation to litigation.
Trolling refers to the way they install invisible digital tracking tags on their works and then cause or allow them to proliferate on hundreds of “free download” websites. People use the photos (or poems, drawings, stories, etc.) thinking they’re free and then receive an extortion letter, demanding thousands of dollars and the threat of a lawsuit. For a troll who does not visibly mark his/her work with copyright ID, the viral nature of the Internet insures a steady stream of innocent infringements for many years. It’s like a perpetual annuity.
I’m not a lawyer and I don’t claim to understand the details of our country’s complex copyright laws. However, I do know that US copyright law addresses “innocent infringement” (17 U.S. Code § 405). In many cases the courts have handed down $0 to $200 penalties for this, not $150,000 or $600,000 as threatened in the extortion letters I received from Vincent Tylor. Furthermore, I personally have seen no cases where innocent infringement involved paying court costs for a copyright troll (another threat included in the extortion letters I received).
“Public Domain” & “Creative Commons” Confusion
Since initial publication of this post, a number of people have told me that photos like this Vincent K Tylor image have proliferated so far and wide on the Internet without any type of visible ownership identification that they are now in the “public domain”. Others say that VKT images can be found on numerous “creative commons” sites where they have no copyright restrictions. So am I guilty of copyright infringement or not? Share your opinion with me on Facebook or in the comments section below.
Could This Happen To You?
If you download anything from the Internet, publish online or even use social media (a blog, Pinterest, Twitter, Facebook) you may look like fair game to a copyright troll. Check out this article by Stefan Winkler, on Copypress.com (Nov 13, 2012), How to Avoid Falling Prey to Copyright Trolls for tips on copyright compliance.
What to Do if It’s Too Late
Nobody’s perfect so if you’ve made an honest mistake and you’ve received a threatening extortion letter from a copyright troll, don’t think you have to just write a big check (or as trolls are only too quick to suggest– have your insurance company write one). The first thing to do is take the infringement down. Do NOT reply to your troll or his/her attorney while you are still in shock. Instead, take a deep breath and do some research on your troll. Personally, I found ExtortionLetterInfo.com ELI to provide a wealth of useful information. There are many imperfectly wonderful people at ELI who have deep respect for copyright but– trolls? Not so much. Intelligent discussion, great camaraderie, spirited debate and (occasionally irreverent) humor make the ELI forum a valuable resource for troll victims. Take a couple days to scour through the ELI postings and these related websites:
Once you’ve done your homework and read through the free resources available online, you’ll realize that you’re probably going to have to spend some money to defend yourself. In my case, I started with a $60 consult with ELI founder Matthew Chan which was worth every penny. Even so, I needed to hire a lawyer. If you’re under attack, be sure to find an attorney whose specialty is copyright extortionist defense. ELI attorney Oscar Michelen has an impressive track record in the area and there are a few other attorneys as well. Try to find an attorney who’s working on cases against your troll so you’ll know the troll’s background, strategy and tactics from the start.
Check the Integrity of The Troll’s Attorney and Law Firm
Matthew Chan and other ELI members did some brilliant detective work on VKT and his attorney Adam Gafni of Woolf, Gafni & Fowler LLP. After they posted on ELI that Gafni’s firm was not found as a legally registered US corporation, Gafni and VKT dismissed their lawsuit against me. The firm took down their website and changed their name to Woolf, Gafni & Cirlin.
Now VKT has hired a couple new attorneys (J. Stephen Street, aka James Stephen Street and Dane Kristofer Anderson) who have filed a new lawsuit against me in the federal district of Hawaii.
Judges and Trolls
Trolls have not been looked upon favorably by the courts (think: extortion, entrapment, shakedown, slander, defamation of character, harassment, etc). What judge is amused by frivolous lawsuits? Trolls know this so their endgame is not, as they say to “see you in court”. It’s a large settlement because they know you are probably in a much better position to make your case to a judge than they are! ELI will help you to understand troll tactics and deal with your particular situation cost-effectively.
Join the Troll Patrol
In Vermont we’re winning a slightly different troll battle. An article by Timothy B Lee in the Washington Post (Aug 1, 2013), How Vermont Could Save the Nation from Patent Trolls tells of how Vermont has emerged as a “hotbed of anti-troll activism”. Our Attorney General has teamed up with our governor, senators and legislators to enact legislation to protect us from patent trolls. I’ve appealed to them to follow suit on copyright trolls as well. I’ve also submitted formal complaints against VKT and his attorney Adam Gafni (Woolf, Gafni & Fowler LLP) to Attorneys General and state bar and professional associations. I’m asking other victims to do the same. Get educated, join ELI and fight back on behalf of yourself, other victims and content creators who are fighting legitimate copyright battles.
Have you had experience with copyright trolls? Share your thoughts with us in the comments section below or on Twitter .
This blog is written by your friends at Vermont Woods Studios. Check out our Vermont made furniture and home decor online and visit our showroom and art gallery at Stonehurst, the newly restored 1800s farmhouse nestled in the foothills of the Green Mountains.