Photographer (And Founder Of Copyright Enforcement Service) Angry That Online Service Won't Simply Hand Over User Info When He Demands It

from the i'm-ever-so-pissed dept

Wed, Oct 8th 2014 6:03am — Tim Cushing

When you start viewing infringement as a personal offense against you and your creation(s), there's a good chance you'll start heading off the rails when attempting to do something about it. Techdirt reader Jorge sends in this impassioned, but clearly wrong, article at PetaPixel dealing with a photographer's attempt to track down the infringer behind an infringing product for sale at Etsy.

The title -- "Is Etsy the New Silk Road for Copyright Infringement?" -- clearly indicates the highly subjective and misguided statements contained therein. It also should be noted up front (rather than footnoted the way it is at PetaPixel) that the photographer writing the post is also the founder of PIXSY, a "service that helps photographers find and fight copyright infringement," by acting as a takedown service as well as an intermediary for the extraction of licensing fees. Photographer Daniel Foster opens the article with this:

While browsing through my image search results on PIXSY (a new service that finds and invoices image theft for you), I was surprised to see my picture for sale on Etsy (above). My immediate reaction:

1. What an ugly mousepad. I’d never print my photo like this.
2. The seller seems to be stealing thousands of photos. How could Etsy let this happen?
3. Who had the nerve to think they could do this?

The Etsy seller in question, Kharma Lu, apparently does nothing but print images on mousepads, cell phone/tablet covers and other flat surfaces. The sheer number of items for sale suggests infringement and Foster's experience definitely proves at least one product is. Foster obviously wants the product using his photo removed, and it is.

I sent both a DMCA takedown request (which Etsy complied with)...

That's hardly Silk Road-esque and the "story" should be over. But Foster wants more than compliance. This is where it's helpful to know up front that he is a founder of a service that helps photographers collect licensing fees. Foster isn't satisfied with the removal. He wants to find the seller.

...and a separate message to Etsy about the situation. I made sure to provide a copy of the photo source as well as a copyright registration certificate so that Etsy could be sure I am the rights owner. Maybe they would be able to identify the name and address of the seller?

(He states this with complete credulity, as though it were impossible for a non-copyright owner to attach a picture and a copyright registration to an email and start making demands...) Etsy won't reveal this information, not with a DMCA takedown request and not because someone demanded they do. After a couple of more discussions, Etsy points Foster at his legal options.

According to Danny, I would have to file a lawsuit and obtain a subpoena before Etsy would disclose Kharma Lu’s contact information. Yes, that’s right. In order to simply find out who is stealing my photo, I would have to a) hire an attorney, b) go to court and c) request a subpeona for Etsy. Assuming Etsy did not challenge the subpeona, it would cost at least $3,000- $5,000 just to get Kharma Lu’s address.

Foster gets the costs wrong (it's actually much cheaper, as he notes in an addendum posted towards the end) and also disingenuously declares in an email to Etsy that he assumes Etsy is "assuming the liability" for Kharma Lu's infringement by refusing to turn over the seller's information. Despite Foster's declaration that commerce "changes everything" and makes all seller information de facto public knowledge, Etsy is still under no obligation to turn over information it holds just because someone's sending angry emails. On top of that, doing so would likely violate Etsy's privacy policy. (Imagine Etsy passing this message along as part of Foster's Rules of Internet Commerce: "Hey, some angry guy said you were stealing his photos so we gave him your home address and phone number.")

He moves from severely dubious legal arguments to complaints about life not being fair.

LiilProducts’ shop is still active, even after I reported the copyright infringement to Etsy. Kharma Lu appears to have gotten away scot-free thanks to Etsy’s protection. This just isn’t right.

It may not be right, but neither is demanding service providers hand over customers' information without the proper legal authority. Sure, that may suck subjectively for Foster, but both the DMCA Safe Harbors and small legal barriers are there to deter abusive activity, not shelter infringers, no matter how victims of infringement spin it.

Foster sums things up with this ridiculous demand:

It’s time to clean up your act, Etsy. You can’t let your sellers steal from other artists and get away with it. At least have the decency to shut down seller accounts when the law is broken.

Foster doesn't actually attempt to verify whether the rest of the photos being used are infringing or not. He simply assumes that because his was, they all (or most of them) are. Etsy isn't willing to make the same mental leap and that makes him unhappy -- as a creator, but probably more importantly, as the founder of a service that's going to run into these built-in protections over and over again. His service markets itself as cost-effective and easy but the reality of the situation isn't quite so rosy. Once PIXSY starts telling users that they'll have to pay to file lawsuits and issue subpoenas in order to obtain infringers' info, they're not going to be any happier than Foster is.

Beyond all the palpable anger, there's a near-complete lack of effort on Foster's part. He did order one of his "own" mousepads in hopes of obtaining seller information but got nothing more than a shipping department address located in California.

Redditors commenting on his posted rant performed some ad hoc "due diligence," uncovering the home address linked to the registrant of the business listed at Etsy -- something Foster could have performed himself if he wasn't so obsessed with making Etsy do the highly subjective "right thing" in response to his complaints.

This lack of a thorough investigative effort also doesn't bode well for PIXSY. If its founder thinks the answer runs through third parties protected by safe harbors from the DMCA and Section 230, his service isn't actually of any use to photographers looking to police use of their photos. Actual infringers are the problem and they're harder to track down. It can be done, but you can't find them by banging your head repeatedly at the nearest corporate wall and demanding it bend to your will (and violate their own privacy policies).

Foster wants heaven and earth moved (seller info, account closed, etc.) because he can prove one product offered is infringing. That's what's actually ridiculous and infuriating -- not Etsy's policies.

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Filed Under: copyright, daniel foster, dmca, information, privacy, takedowns
Companies: etsy, pixsy

34 Comments

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Ninja (profile), 8 Oct 2014 @ 6:05am

The fact that he keeps conflating infringement with theft also greatly degrades his whole point. Maybe he is right to be angry at the vendor after all a product with his art was being sold for money but really, due process and such protections from abuse are more important than his supposed well being.

Even with such protections the system is still widely abused. Or have we seen any meaningful punishment against bogus DMCA notices?
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Anonymous Coward, 8 Oct 2014 @ 6:22am

This person has obviously been studying the RIAA/MPAA approach to dealing with infringement, go after the third parties, and complain when they will not do exactly as demanded of them.
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That Anonymous Coward (profile), 8 Oct 2014 @ 6:24am

So I saw this new service in my tweeter feed, and I had hopes.

Those are crushed now.

This entire story makes it clear that the service is not useful, will never be useful, and will be nothing more than yet another system that demands everyone else do the work for them.
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Anonymous Coward, 8 Oct 2014 @ 6:25am

Someone needs to tell that moron that he is required to go through the courts, in order to get a subpoena. If he's angry about the court filing fees, then he needs to complain to his legislators, not to the online service Etsy.
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Anonymous Coward, 8 Oct 2014 @ 6:33am

i suppose he could try suing for $150,000, as is the norm for an entertainment industry infringement, and see how he gets on with that.
oh, i forgot, he wants to do all of this free of charge, or have Etsy do it at it's expense, but he then gains any benefit that comes out of it.
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Anonymous Coward, 8 Oct 2014 @ 7:02am

I'm guessing this guy's had everything basically handed to him for free all his life. Suddenly, the world stopped revolving around him and he's acting like a toddler again.
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Zos (profile), 8 Oct 2014 @ 7:07am

inb4 he shows up to Carreon the comments
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Anonymous Coward, 8 Oct 2014 @ 7:21am

Good anger, wrongly directed is far worse than unguided anger.
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David, 8 Oct 2014 @ 8:13am

It's not that big of a leap
If Kharma Lu makes money selling photos on things, and used his in violation of copyright, I'm willing to give him the benefit of assuming the rest of the pictures are potentially used in violation of copyright. Proof is needed, of course. Her Store now states she's "On Vacation", so...
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John Fenderson (profile), 8 Oct 2014 @ 8:23am

Re: It's not that big of a leap
Well, sure, I think the odds are excellent that the store is built on infringement. That doesn't make the photographer's essay any less misguided.
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Anonymous Coward, 8 Oct 2014 @ 8:27am

I had a similar experience as Foster. I found out that someone was using some images I'd created and posted online years ago on products on a print-on-demand website. It looked like the person who was using my images did the same thing as Foster's "thief." There were thousands of images with very different styles that couldn't have come from a single creator, so I assumed they were just scouring the web for images and posting them as their own.

So I used the available tools on the website to request the removal of the images. They were removed within a few days and I decided to set up my own storefront on the website in order to monetize my own images since apparently someone else thought that my images were good enough to sell on products.

And I didn't throw a fit or expect, much less imagine, that I might find out who the person was who was at least attempting to profit off of my creations (and likely the creations of others). For one thing, the person was likely in another country, but also, what was I going to do if I'd found out who they were? Lawyer up for a few thousand to get the probably no more than $15 this person may have made off of my images? Show up at their door and tell them they're a bad person? File a police report and be told it's a civil matter?

My time and effort are worth more to me than I would ever possibly make from pursuing such a person. I'd rather be creating new images that hopefully others will think are good enough to purchase than chasing down someone for ultimately a minor sleight with likely minimal monetary benefit.
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Anonymous Coward, 8 Oct 2014 @ 9:38am

Here's an idea
Order one of these mouse pads for a few bucks, read return address on package when it arrives.

No need for lawyers and mega bucks, just a little bit of common sense!
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RD, 8 Oct 2014 @ 9:44am

Re: Here's an idea
RTFA:

"He did order one of his "own" mousepads in hopes of obtaining seller information but got nothing more than a shipping department address located in California."
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Anonymous Coward, 8 Oct 2014 @ 10:22am

Re: It's not that big of a leap
"I'm willing to give him the benefit of assuming the rest of the pictures are potentially used in violation of copyright. Proof is needed, of course."

Well, duh! Yeah, I'm also willing to "assume" infringement if infringement is proven. Of course, only a court can determine that.
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Anonymous Coward, 8 Oct 2014 @ 10:27am

License?
"I made sure to provide a copy of the photo source as well as a copyright registration certificate so that Etsy could be sure I am the rights owner."

Even if copyright ownership is determined, that still doesn't prove that the seller doesn't have a license. We have only the copyright owner's assertion.
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John Fenderson (profile), 8 Oct 2014 @ 10:35am

Re: License?
"We have only the copyright owner's assertion."

True, but it's pretty safe to assume that the owner of the copyright knows whether or not they issued a license to someone. Sure, they might lie about it, but if they incorrectly claim that there was no license, then the licensee can prove them wrong by producing the license.
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Anonymous Coward, 8 Oct 2014 @ 10:46am

Re: Re: License?
There have been many cases of contractual disputes concerning licenses. Resolution often requires a court of law.
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Anonymous Coward, 8 Oct 2014 @ 10:49am

Re: Re: License?
"...the licensee can prove them wrong by producing the license."

How would Etsy know if the license is valid?
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Anonymous Coward, 8 Oct 2014 @ 11:01am

Re:
The person is providing something that people want that the original artist was not providing. It's not right but it is filling a void of demand.
I commend you for doing the right thing by putting those images back up for those people wanting them after you took care of the infringing ones.
That is something sorely lacking in many of today's copyright cases. After the infringing work is taken down down, no viable legal substitute is put up in its place.
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Alien Rebel (profile), 8 Oct 2014 @ 11:13am

Clueless
I put the uninformed righteous anger of creators in the same category as rage against ACA "Death Panels." It's a similar combination of irrational fear and misinformation that in no small part is artificially induced by some less-than savory commercial interests.

Google recently settled with ASMP, the Graphic Artists Guild and others in the lawsuit over images captured by Google's book scanning. Having met several of the plaintiffs in person, I can vouch that they are the same frothing-at-the-mouth types whose overblown sense of entitlement only serves to harm creators and assist the jerks at RIAA, MPAA, and the US Chamber of Commerce in distorting copyright law.
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Mason Wheeler (profile), 8 Oct 2014 @ 11:37am

What safe harbors?
Again, what DMCA safe harbors? The DMCA Takedown system is not a safe harbor. An actual safe harbor doesn't have strings attached; when someone says "do what I want or you will be subjected to [unpleasant thing,] that's not "safety," that's not "protecting them from [unpleasant thing]". That's extortion, plain and simple.

CDA 230 is a safe harbor. It tells the bad guys "no, you can't do that, period."

The DMCA Takedown system does not do that. It tells the bad guys "you can use the threat of lawsuits as leverage to get extrajudicial remedies for things you really should have to use the legal system for," and it leads directly to exactly the sort of stuff this sleazebag is complaining about:
According to Danny, I would have to file a lawsuit and obtain a subpoena before Etsy would disclose Kharma Lu’s contact information. Yes, that’s right. In order to simply find out who is stealing my photo, I would have to a) hire an attorney, b) go to court and c) request a subpeona for Etsy.

Yes, you do have to do that, but not for long, not if the DMCA continues to provide a foundation to build further bad laws on. As long as the "safe harbors" exist, the ratchet will continue to turn further, and it likely won't be long before guys like this will be able to get exactly what he wants here without having to actually go through the oh-so-inconvenient process of Due Process.

Despite multiple requests when I've brought up this topic on Techdirt, no one has yet pointed out a single case where the so-called "safe harbors" actually kept anyone safe when the bad guys wanted them gone. So why don't we face reality here? It's not good, it doesn't protect people, it doesn't protect websites, and all it does it make things worse. It has to go.

The entire DMCA needs to be repealed as the first step if we're going to make any real progress on rolling back copyright abuse, and the DMCA Takedown system is one of the prime reasons why, not one of the few points that makes it worth keeping.
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John Fenderson (profile), 8 Oct 2014 @ 12:12pm

Re: Re: Re: License?
They wouldn't. But, unless there was obvious fraud going on, they wouldn't need to -- they will have done their due diligence by confirming that there exists a plausible license. Any further licensing disputes are between the two parties involved, and don't involve Etsy until a court order is issued to clarify the situation.
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Easily Amused (profile), 8 Oct 2014 @ 12:53pm

Re: Re:
I don't think you can infer demand from consumers solely on the fact that someone put an item up for sale online... These products are printed on demand, they are not stocked on a shelf somewhere. The cost to the seller to advertise an image on a mug/tshirt/mousepad is essentially zero - so they can put as many of them up for sale as they feel like bothering with.
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Anonymous Coward, 8 Oct 2014 @ 12:56pm

Re: Re: Re: Re: License?
So, Etsy should bear the legal cost of hiring legal counsel to examine the licenses and contracts involved in order to make preliminary determinations of legal validity? I disagree.
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Anonymous Coward, 8 Oct 2014 @ 6:22pm

The dumbass should have put a watermark on his works ,It may not be a perfect solution, but most people pass those by, because removing the watermark is actually more work than anyone wants to do.
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Anonymous Coward, 8 Oct 2014 @ 7:08pm

Re: Clueless
I saw similar rage at Google in the comments on an article stating that Google was lifting the limit of Drive storage for Google Apps for Education users. The commenters made derisive remarks about how Google was getting it's claws into students at a young age by scanning all their school email messages and serving them ads, even though Google doesn't do either in the Google Apps for Education suite and they don't use student (or staff or faculty) information for anything since they have to comply with FERPA and otherwise would get sued to hell if there was any such violations... But the Google critics wouldn't believe such refutation because they couldn't believe that all the "Google spies on everyone worse than the NSA" FUD they'd heard fit so perfectly into their chosen perspective. And they probably were using Hotmail accounts and were unaware of Microsoft doing the same scanning of user email account content...
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Alien Rebel (profile), 8 Oct 2014 @ 8:59pm

Re: Re: Clueless
Aside from the clueless, if you go down a few levels you find the willful propagandists, who know the fear they're selling to the merely brainless is utter crap. I had some such asshat from the Graphic Artists Guild try to convince me back in 2008, I think, that if a lousy orphan works bill most arts organizations were opposing didn't pass, the legislation would just be oh so much worse the next time around. Really? Soft resistance works better in D.C. than a firm "HELL NO!"??? The eye contact said it all; she knew, that I knew, that she was full of Shinola. Then later I discovered just how tight the Graphic Artists Guild was with the Copyright Alliance, how that same talking point was being used by others associated with the Alliance, how much money GAG had thrown into lobbying alongside the Alliance on that orphan works debacle, and my full-of-Shinola judgement was confirmed. Some people. To quote Robert Shaw's character in Jaws- "You look into those black eyes, those lifeless eyes, like a doll's eyes, . . "
--
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Anonymous Coward, 9 Oct 2014 @ 2:58am

Re: Re: License?
Copyright owners don't even know which work is their own so how can they know if they licensed it or not?
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John Fenderson (profile), 9 Oct 2014 @ 8:00am

Re: Re: Re: Re: Re: License?
No, Etsy would have no need to hire any lawyers over this. The court proceeding would be between the one claiming infringement and the one accused of infringing. It wouldn't involve directly involve Etsy at all. If the court ruled that infringement occurred, it would issue an order to take the content down.
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Celeste O'Keefe, 12 Aug 2016 @ 9:17am

Daniel Foster: Photo copyright SCAM?
Mr. Foster, You do hire attorney's and as a blogger who found your photo on Photopin to use FREE you had an attorney send a demand letter for $2,500!!! But amazingly, 6 months after I found the photo on Photopin it is gone. So did you remove it and then have an attorney send me a letter demanding money?? MANY others had used it from Photopin also and I see now that they have removed it from their blog. I guess they got a $2,500 demand letter also.
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Celeste O'Keefe, 12 Aug 2016 @ 9:22am

Re: Daniel Foster: did come after me
Well, I found one of Daniel Foster's photos on Photopin last year for FREE and I used it in a blog. Six months later the client I wrote the blog for received a demand letter for $2,500 or he would be sued.(we took the photo down immediately) Of course, he sent the demand letter to me. After dealing with David Deal, Mr. Foster's U.S. Attorney and explaining to him that it was on Photopin free they still want $1,250! I think it is a scam and the ATtorney General of Mississippi is going to be informed!
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Celeste O'Keefe, 12 Aug 2016 @ 9:24am

Re: Daniel Foster
Mr. Foster, you state in this post that PROOF is needed and I have told your attorney David Deal that it was posted on Photopin for use by bloggers for FREE. And six months later i received a demand letter for $2,500!! And NOW the photo has been removed from Photopin.
Do you have a scam going on? I am turning this over the the Attorney General of Mississippi to handle this with you and your attorney.
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Celeste O'Keefe, 12 Aug 2016 @ 9:34am

Re: It's not that big of a leap
So Daniel, then I have told you and your attorney that YOU or someone put the Photo on Photopin then removed it and then sent me a demand letter. What else would you want? Oh, the $2,500 you want or you will sue me? A blogger? really?
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Daniel (profile), 15 Aug 2016 @ 7:09am

Re: Daniel Foster: Photo copyright SCAM?
Hi Celeste,

The case you are referring to involves the use of my photo on a personal injury lawyer’s website. Specifically, the photo was used in an article advertising the service of a law firm.

My understanding is that you are the CEO of Dancel Multimedia, a company that provides advertising and marketing services to law firms, and that your company was paid to provide this content to the law firm.

The image is on my Flickr page, and it looks like Photopin automatically syndicates from Flickr. This image is under is under a Creative Commons NonCommercial that allows for non-profit use if you give attribution. Neither of these things occurred. Photopin gives a clear explanation on how to use images on their site and clearly states that images may only be used for non-commercial or non-profit projects.

One of Pixsy’s lawyers reached out to your company because you had no permission to use the work to advertise personal injury legal services. Bloggers are more than welcome to use my work for free. Businesses, including law firms (who should definitely know better) and advertising agencies, are not.

Please ask for permission ahead of time and arrange for a paid license if you wish to use my work for attorney advertising in the future.

I understand that your agency and law firm might be bitter about the situation, but I would appreciate it if we could still handle it as professionals.

In the meantime, I wish you the best of luck with your business and am looking forward to resolving things amicably.

Best regards,
Daniel Foster
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