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Old 03-12-2005, 10:53 PM   #1
batcavenet
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Default Copyright Law - A bad situation

Just a word of caution to other webmasters make sure your copyrights are solid on content.

I am being sued by a cartoonist for 1 cartoon appearing on one of my websites in the amount of 175,000 + 25000 + court costs for one cartoon.

This is Eric Decetis- he writes for penthouse since 1983 I think and makes adult cartoons. The cartoon he is suing over is not an adult cartoon and my site was not an adult site.

I bought a site a few months ago and this cartoon was included as content and since I thought the site had some sort of permission to use the pictures and jokes - I did not check.

I did not receive any notice to remove the content. I was served by certified mail by a lawyer in Houston but this cartoonist lives in Sacramento and has filed lawsuits against anyone who uses his cartoons. This lawfirm is known for medical liability cases, and "getting the largest amount of money" citing the amount they were able to get on their website. The judge is also a high profile judge responsible for enron lawsuit and for getting the ten commandments removed out of public places in Texas.

I am wondering if anyone else has come accross this - and how it was settled. I am hiring good legal representation - I made no profit off this site and lost money - I am not a business. Win or lose this will cost me money in legal fees so there is no good outcome of things like this.

Any advice would be helpful.. I will let you all know how it turns out - I am poor so I am not sure why I am being targeted other than for him to make example of someone.

JDT
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Old 03-13-2005, 05:46 AM   #2
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Your lawyer will be able to advise better than any of us, but most complaints of this type can be resolved out of court through the immediate removal of the offending material from one's site and the issue of an affidavit, or something to that effect, stating that the use of this image was accidental and that you will not reproduce any of the copyright holder's works in the future without obtaining appropriate licenses.

Most often, as under the DMCA, a warning should be issued in advance of court action, so your lawyer may be able to argue something to this effect; that the site was recently purchased and you were in the process of verifying licenses when the letter arrived with no prior notice.

The obscenely high amount that he's asking for a single cartoon on a small website will almost certainly not be granted. Nevertheless, your costs do highlight the risks assumed by buyers in website transactions.

It's for this reason that Geek/Talk is so adamant that sellers within our own "Barter/Trade..." forum clearly note the IP status of the content that they are selling. Some sellers, unfortunately, don't seem to care in the slightest as to what risks they're passing on to unwary buyers.

I sincerely hope that you and Mr Decetis are able to reach an agreement outside of court and that your costs are minimised.
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Old 03-13-2005, 05:33 PM   #3
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First, thanks for having the "guts" to post this. That took a lot of nerve. Next, I'm not an attorney but I am in the USA and I have been to court on numerous issues throught my life. I'm older with less hair and what I have left is gray. I don't mean to be harsh and I hope you take these comments in the interest of helping you and anyone else who cares to read them Begin:

1. You have already lost. This is a federal court case that deals with a violation of DMCA. This is the major/primary issue. Certainly you are innocent untill proven otherwise but given the facts you state thats the end of the story.

2. The ONLY less important factor you have in your favor is that you never recived a formal demand to remove the stolen content and or a C and D. THis will help you bargain.

3. The other factors you mention or even using the " I thought" they were kosher and OK to use are of a VERY minor importance.

4. Select your attorney wisely. You want a person with experience in IP/DCMA issues and in my view you need to make it crystal clear to your counsel from the get go that you wish to settle the case during the very FIRST contact between attorneys. DO NOT play games and or stall. You have been chosen as an example and to send a lound and clear message to others that artists mean business and will infact be exstrememly aggressive in protecting their IP rights. Apple does the same thing with respect to "Trade Secrets" Some Netowrks do the very same thing and SUE to send a message to cheaters and trust me the word travels VERY fast.

5. I would take the site down yesterday. Leave a single page up and break all the inbound links. I can nearly guarantee you that this kind of deal involves numerous other stolen images on a site which you own and our 100% responsable for all it's content.

6. Please remember that any PI worth their salt can use both the WayBackMachine and or the Google cache to view the site and content. Not to mention that you can be required to testify under oath as part of a deposition and thoroughly grilled about every single detail of ALL your businesses and dealings.

Ballpark numbers:

A quick settlement will cost you about 20K total. Lesson learned, move on, use the experinece to help others and guide them. Just as we do here in GV. Your experinece will have weight and impact with other criminals who steal content

A protracted legal battle which in my view you have already lost will cost you 100K or more.

Finally, a few words about stealing content. It's not only Publishers who do this so much but others who in essence are "enablers" and do nothing about it. For example:

Some hosts do nothing
Some Affiliate Networks don't care if the entire content of the site is stolen. They do nothing
AdWords/Google doesn't care
Some Countries don't care and actually encourage the theft of IP.

What a cast of characters I hope I have helped with my views and do want to wish you the best of luck. in a quick settlement.
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Old 03-17-2005, 11:00 AM   #4
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I certainly hate to hear about your legal troubles. It is a litigious world and that is sad. I had my photograph stolen and used in a photograph rating site software package and then sold and used around the world. Now I am all over the web and the internet lawyer I spoke to said it would be impossible to prove damages. If I can't get anything for a company in Dublin selling my photograph, its sad that a two-bit artist can sue you for so much.

You're not alone.

speeds-cartoons.com is being sued as well. There are probably a lot of humor site webmasters getting the hammer. I saw this list:

The United States District Court, Eastern District of Texas, Marshall Division
The attorney is representing;
Sandi Gray
Laura Shoaf Strickland
Kathy Hollis Cooper
Daniel Reynolds
Eric Decetis

That's a lot of artists being represented by a guy who has a list of targets. Sadly, you're one of them but if you could find the other ducks in his shooting gallery maybe you could share knowledge get an edge.

The most obvious thing you have going for you is Trial By Jury, people would sympathise with a poor webmaster just trying to share clean jokes and make people laugh more than they would a smut artist represented by a possible ambulance chaser. Villianize them It won't be hard, they're obviously out for a dirty dollar or they would have asked you to remove the content.

They just let Robert Blake off for murder, juries don't necessarily care about legality as much as they do about emotions your plight evokes. You're clearly the victim here. If I were sued for that amount, I would have trouble eating and sleeping.

Best of luck!

-------------------

If they can do this over something so simple . . . it could probably happen to any of us over a multitude of things.

Questions This Raises For Me:

1. Would private Whois info have stopped the certified letter from having an address to go to?

2. Would starting a business and lumping websites into them make the business responsible for any judgments and thereby making it subject to folding under large penalties rather than it going against personal finances? -- if so, What type of business is necessary? Would a Limited Liability Company (LLC) be sufficient or does that still not render you blameless?

3. I have created web templates and distributed them with an agreement to keep the design credit intact. My designs appear in thousands of places and only a few left my link and credit on there. Does this entitle me to unreasonable amounts?- not that I would ever be such a jerk.

Last edited by Lavation; 03-17-2005 at 12:01 PM.
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Old 03-17-2005, 11:19 AM   #5
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I get requests from copyright holders to remove their photos from my forum fairly often. Members post the pics. I remove them and everyone is happy.

This cartoonist is obviously just another lowlife that is using the legal system to exploit hard working folk.

If this happened to me, I'd probably just tell the guy shove off and ignore the whole thing. I'm not sure what they could do across state lines to press the issue. If it looked like they had the teeth to do actual damage, I'd take stock of my assets and move to protect them by purchasing property overseas.

This guy is out to ruin you. There is nothing fair about it and IMO you are justified to fight just as dirty as he is.
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Old 03-17-2005, 11:35 AM   #6
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<sarcasm>nice to see sandy, kat and the gang back at work again!</sarcasm>

I believe their last attempts didnt even get to court..
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Old 03-17-2005, 01:35 PM   #7
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If you need a good lawyer, PM me and I'll give you the contact info for the one I used. I was part of round 1. I can't really talk much about the case, but let's just say he handled mine very well.

Adam
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Old 03-17-2005, 02:22 PM   #8
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It is a very unfortunate situation. I was in a similiar one in 1998 with a website I ran for a friend. My friend didn't have a credit card, so I registered a art site for him. I was listed as admin, owner, tech, etc for the site even though I had nothing to do with it. The site was originally made up of my friend posting other peoples artwork without there submissions, then people began submitting the artwork on their own. The site got decent traffic and I never paid any attention to it. Then one day I get a certified letter to my house, I'm being sued for copyright violations. I got a lawyer and everything and the judge ended up dismissing the case before it made it to trial because the other party refused to give me/my friend a chance to remove the works in question. This was several years ago, but maybe you get a nice judge.

Nowadays, if I don't get sued atleast once a year, it's considered a slow year. Bands try to sue me all the time if I or my staff give them a bad review (slader is a wonderful litigious word these days) ...make better music is my suggestion.
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Old 03-17-2005, 02:48 PM   #9
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Interesting... I can certainly understand and respect how painfull and contraversal this issue can be.

Some additional thoughts:

1. I'm not an attorney and to the best of my knowledge neither is anyone else who has posted in this thread. Thus, please ignore my legal advice and that of everyone else. Follow the advice of your attorney.

2. Respectfully, I fail to see the value and or GV complaince aspect of insults/attacks against other parties in this thread and or even using sarcasism. It would be best to keep it very respectfull and civil. Devoid of attacks. insults, and proposing actions which may in fact be a violation of the law. Thank you

3. I will try and answer 2 of the questions asked:

a. An annymous/proxy whois record may be "pierced" so an attorney sends legal stuff to say godaddy.com and then they will release the real owners data

b. Any PI worth their salt doesn't even need to do this. Members who pay can get a complete history of whois records at whois.sc AND it is widely used

4. Since an LLC is a state by state entitiy I can't tell you if in fact this kind of formation has ever been "pierced" and or weather it protects folks. A far safer route would be a Corporation. None of this matters unless the site in question can prove ownership as a Corp BEFORE the legal action.

5. So one of you thinks a jury trial is the way to go. Have YOU ever been involved in this? I have and trust me it's not only draining but better figure 300K in cost and a few years. You may in fact win the battle but loose the war

6. So you didn't know about IP law and the DMCA. You "thought" things were OK. I can buy that but exactly how would you answer questions under oath with respect to your other site. This is what you display on your site:

From: http://www.batcave.net/agreement.html

You may not use your web space to provide material, or links to material, that is grossly offensive to the Web community. This includes:
Blatant expressions of bigotry, racism, hatred, or profanity;
Promotion or display of instructional information supporting illegal activities; this includes, but is not limited to, instructions for the building or use of weapons, propagation of "spam" email and/or computer viruses, or any material that infringes the intellectual property rights of third parties;

7. JT: This site in your sig redirects to a suspended page:

www.freeplayarcade.com

Was this the site in question which displayed the stolen content?

Good luck and HTH
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Old 03-17-2005, 04:32 PM   #10
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Steve thank you for your thoughtful posting on this matter.

Personally I resent my name being dragged into this again. It seems like I am blamed for all lawsuits against humor webmasters.

Funny but I don't see my name on any of the legal papers and my position on copyright infringement has always been clear - just don't do it.

I cannot win with that community so I may as well go to work as an advocate for artists rights. In fact I believe the root of the rampant piracy is artist inaction. To describe the artist as wrong in this situation is to ignore the effect that infringement has on the value of their work.

Thanks again Steve.
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Old 03-17-2005, 06:15 PM   #11
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Quote:
Originally posted by photocartoonist
Personally I resent my name being dragged into this again.
I agree with Steve's comments regarding the need to avoid using sarcasm and accusations in this thread due to both the legal sensitivity of this situation and possibilities for arousing confusion. It seems that confusion has played a hand here.

That is, I don't believe that jokearound's comment referred to yourself, lovely Kat. His mention of Sandy and Kat, as I understand it, refers rather to Sandi Gray and Kathy Hollis Cooper, plaintiffs in this action.


Great to see you back, Synozeer, and thanks for extending this offer to batcave. If these plaintiffs have raised action against other webmasters in the past, and failed to gain traction for their claims, they may be at a disadvantage in this latest case.

Batcavenet, I'm sure that your lawyer will fully investigate the outcome of the previous action. Hypothetically however, if the plaintiffs received a previous recommendation to issue a written warning as their first course of action in future cases of dispute, your situation and your willingness to immediately remove the offending material may work in your favour.

Your lawyer will probably argue the definition of the condition "...knowingly perform..." as it appears within Article 12 of the WCT, which is referenced with the DMCA. If you are willing to swear under oath or affidavit that you were unaware as to the copyright status of some of the site's content but were endeavouring to secure licenses and/or to remove unlicensed content as quickly as was practical to do, you could be granted some respite. This is further supported by another clause within the DMCA, which states:
Quote:
(Section 1203, as quoted within "Remedies" of the Act)
The court has discretion to reduce or remit damages in cases of innocent violations, where the violator proves that it was not aware and had no reason to believe its acts constituted a violation.
Of course, those who blaitantly stole these artists' works for the intent of profiting from the unlicensed creations are at great risk of being charged, and rightfully so. Geek/Talk has always been vehemently opposed to the abuse of artists' IP rights and will continue to support action against blaitant violators.

While ignorance is not an adequate defense, the fact that you recently purchased the site and appear not only genuinely remorseful but certain that you did not willingly and in bad faith violate this artist's rights may discriminate your situations as distinct from those who simply didn't care about the artist's rightful claim to royalties or licensing fees.

Maybe the situation isn't quite as hopeless as it first appeared.

Best of luck in finding some decent representation.


Disclaimer: I am not a lawyer. Don't listen to me.
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Last edited by Czar; 03-17-2005 at 06:17 PM.
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Old 03-17-2005, 07:23 PM   #12
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7. JT: This site in your sig redirects to a suspended page:

www.freeplayarcade.com

Was this the site in question which displayed the stolen content?

Good luck and HTH [/quote]

No I got the content from Miniclip - in light of recent events I am probably a target want to review every copyright offline to make sure everything is in check. In this case the artist had to look really hard to find the cartoon - I suspect they probably hired someone to go out and find people to sue and I can't take any chances.

The case is not yet settled - but now it's deciding what will cost me more - fighting this case or settlement. The cartoonist did not file with the court - he just wants money without spending anything on his side. I found a really good lawyer but regardless this will cost me - and I consider it a lesson learned.

If you make money you are a target for people to take it away and spend half your time defending against them - welcome to the USA I guess

JDT
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Old 03-17-2005, 09:17 PM   #13
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Quote:
Originally posted by Czar

That is, I don't believe that jokearound's comment referred to yourself, lovely Kat. His mention of Sandy and Kat, as I understand it, refers rather to Sandi Gray and Kathy Hollis Cooper, plaintiffs in this action.
you sweet talker

But Synozeer locked me out of his forum (Humorweb) right after this thread. Still think it's not me they are talking about??
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Old 03-18-2005, 12:50 AM   #14
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have you considered trying to contact the artist personally to offer an apology and explanation? a personal plea may convince him to drop you from his suit.
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Old 03-18-2005, 07:46 AM   #15
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He's in the porn biz- this probably makes him some cash I doubt he would want to. I tried emailing him with no response - and the lawfirm suing these is good at being rude and not letting me talk to people.

JDT
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