One's eyes never need to stray far from the words "copyright troll" to find the inevitable "innocent infringer."
There is, of course, a chasm between the gravity of rape and the gravity of copyright infringement, but the engrained blame-the-victim culture bears comparison.
A case in point is the ExtortionLetter.info forum which now has a whole section entirely dedicated to the vilification of writer Linda Ellis who makes liberal use of copyright law to maintain exclusivity in the distribution of her poem about tombstones called "The Dash." The section was created after charity auctioneer April Brown, having received a cease-and-desist letter from Ellis, flinched violently when poked, and made considerable noise on the internet. Derision of Ellis is typically accompanied with sentimental protestations of the innocence of infringers, and glorification of those that complaint loudly when caught.
An offshoot website adds little to the discussion other than a garrulous collection of graphic depictions of Ellis stuck in a toilet or with green skin, creating confusion about who the trolls are in the dispute: Ellis, or her detractors?
In the copyright infringer's utopia,
author Linda Ellis is a green witch.
What are content creators supposed to do in cases of infringement, according to the copyright-troll police? According to a poster on the ExtortionLetter forum,
If it appears that they did not re-sell the image or make profit off the use of the poem, then I suggest a small monetary payment - $200 is my suggestion[...]. If they don't take it down, then she is justified in asking for $7500 as it becomes a willful infringement. If they take it down but ignore the request for $200, a follow up letter seeking more damages -perhaps $500 now can be sent [...]. These amounts still make an enforcement program profitable but not extortionate.This idealized course of action is utterly absurd.
Suppose a content creator were to send, as suggested, a cease-and-desist letter in his own name asking for $200. How many people would respond to such a request, coming from an individual rather than a law firm? None.
How many people would insist on keeping the image, and therefore considered willful infringers? One would suspect, very, very few.
That would make copyright laws entirely useless. If this was common practice, no one would ever worry about infringing copyright since there would be virtually no penalty incurred when caught. Once people become aware of the potential costs of falling into a random copyright speed trap, they police themselves with their own fear. Take that fear away, and we're left with unbridled copyright infringement and content creators everywhere spending considerable amounts of time chasing their content and sending polite letters.
In the copyright infringer's utopia, they are all innocent, and their actions are devoid of consequence. Content creators are expected to give their content for free, or spend half their time shaking their index fingers in disapproval. Not only this, but everyone can infringe with total impunity upon anyone's intellectual property if it's not for profit!
It's not clear who is trolling who.
This begs the question of why content creators don't ask for "reasonable" sums say, under a thousand dollars. Truth is, once they reach the exasperation point of sending cease-and-desist letters, they have already paid their attorney a sum that varies between $1000-1500. If they only want to strike fear in the hearts of infringers, and just break even, they need to ask for at least that amount. Typically, law firms will charge $150 per hour to negotiate with the infringing party. The content creator doesn't know ahead of time how much time will be spent in negotiations, therefore, the amount requested from the infringer will reflect this, and cover the risk, of at least a very conservative 5 hours of lawyer's time, propelling the demand in the $1750-2250 range. Now we need some negotiation headroom, doubling the amount to $3500-4500. Add the risk of further litigation, and the costs involved. Even if a court rules in the favor of the artist, some infringers simply don't have the ability to pay.
This is for an artist merely wanting to break even in the conflict; he'd be wise to ask for a little more, if only to avoid a deficit. Given all the risks, the economics of cease-and-desist letters require that the amounts asked be at least in the vicinity of $10,000 - most of which will go towards leather seats in the attorney's new BMW, and very little in the artist's pocket, if anything.
Next post: choosing appropriate recipients for cease-and-desist letters to send the strongest possible message to pinners that YES, they can be sued, and it's not cheap.
4 comments:
Hi April, thank you for your comment. Let me clear up something: the details of your battle with Linda Ellis or the merits of her particular brand of copyright enforcement are not relevant to graphical content creators whose work is being infringed upon by armies of well-intentioned, but ultimately ignorant, "pinners."
I am disappointed that you didn't address any of the actual points I am making on the topic of this blog, which is Pinterest.
The first take-home message of my article, if you read it, is that artists wishing to rightly enforce their copyright can expect some noisy vilification (as evidenced by your context-blind hysteria over my post about Pinterest) and should have their attorneys include an airtight confidentiality clause.
The second take-home message is that the amount of damages demanded may seem unrealistic to the infringer, but they are dictated more by the economics of having to hire an attorney than the actual worth of the damages. Further, most of the money would end up in the lawyer's pocket and the artist would have to settle for pocket change; so artists are caught between a rock and a hard place. They can let themselves be victimized by the crowdsourced image content scrapers infringing their intellectual property, or they can be victimized for daring to defend it with the (costly) legal means at their disposal. It's not a happy situation.
I welcome any comment you might have about Pinterest, but please keep the nitty-gritty of your fight with Linda Ellis to the many other venues that are available to you.
I will only address the parts of your letter that are pertinent to Pinterest. Thank you again for your input in the discussion.
"We do not get simple Cease and Desist letters as you stated. I received a $7500 Demand Letter."
C&D are generally accompanied by a demand for financial damages. If you read my article, I explained why the economics of sending someone a C&D letter are such that if an artist hopes to pocket $200 in damages, he has to ask for $7500 and that all but the $200 will go to his attorney. And I don't care how much Linda Ellis pays her copyright agent. Attorneys will charge $1000-1500 just to send the letter, and a larger bill for negotiations down the line. Can you find an attorney that will charge $200 for the whole procedure? If that existed, most artists would GLADLY send C&D letters asking for a mere $300. But the reality is that attorneys are crazy expensive.
"The average person has no idea they are doing anything wrong when the copy and paste content and share that content on Pinterest, facebook, etc."
And how can, say, 10,000 content providers educate 10 million pinners? If the worse that will happen to pinners is that they'll notice Pinterest has taken something down after a DMCA (if they even bother looking at their own image hoards, otherwise they might never even notice), they get all the fun, artists get all the pain. That's why I'm beginning to think that the only way to educate the masses is a few exemplary lawsuits. Then, some these people will do like you are doing; they will work tirelessly to warn the others, the downside being that they'll probably vilify the copyright holder in doing so.
Further, copyright holders need to establish a price for their content and post that price.
I can't speak for every content provider, but every page on my main websites have a copyright statement in fairly big letters. The price for my content is ZERO because I do not consent for anyone to post my content on any other websites. And as my copyright statement states, other than reposting my work, my visitors can pretty much do anything they want with my designs, including selling crafts made from them. I have chosen to defend only one aspect of my copyright, which is the display and distribution of my work on the internet.
"There is no rhyme or reason to who she allows to share it and who she decides to charge for the content."
Unfortunately, that's what confuses people. I choose to defend one aspect, Linda Ellis chooses to defend another, some photographer will choose yet another angle. Copyright holders tend to defend only the parts that compete with how they exploit their own intellectual property.
Do consider the case of one pinner who tried to pin some of my images, and pinned a cleverly substituted copyright warning instead - which means that she tried to over-ride the no-pin meta-tag warning to begin with. What did she do, after twice being thwarted? She uploaded it to her computer, and pinned it anyway. There are people that just don't care, because they know nothing will ever happen to them. I'm sure if I sent her a costly C&D letter she'd think herself an innocent infringer as well, and I'd be the bad guy; that's just human nature.
"I don't believe most content providers use attorneys to send C&D letters."
I'm quite sure if I just typed a letter myself and mailed it to my infringers, the letter would be promptly tossed in tne nearest recycling bin and forgotten.
"I do believe content creators can protect themselves by speaking out in the national televised media."
Alas, that hasn't helped the music industry. It won't help the image industry, either.
I'm resigned to legal recourse being the only "solution" - because a few creators crying foul against 10 million women pinning away, and the millions of dollars in venture capital money backing them up, aren't going to be heard.
It's all very unfortunate, really. The corporate greed, the ignorance and lack of respect, the denigration of people fighting to carve out a living from their artistic endeavors, the "sharing" (aka distributing) of what doesn't belong to you to get the attention of strangers (followers)on the internet.
The internet was shaping up to be a nice cottage industry of experts providing content, instructions, photographs, recipes, etc. Until corporate pirates came in, and decided to steal it all by capitalizing on people's ignorance, and short-sightedness.
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