Marketing Guy: Google Image Search Is A Honeypot Set Up By Aggressive Copyright Litigants
from the I-lost-a-lawsuit-and-all-I-got-is-this-lousy-advice dept
There are a lot of people out there that don't understand intellectual property issues. But perhaps no one misunderstands them quite as badly as internet marketing guru Dan Dasilva. And Dasilva has no excuse. He's been on the losing end of a copyright infringement lawsuit. Despite this, Dasilva continues to express his ignorance -- and proclaim his victimhood -- publicly on his YouTube channel. (h/t Techdirt reader Andy Gural)
Dasilva snagged an image from Google's image search and used it on a website he set up for one of his clients. The photographer who took the picture -- Michael Grecco -- sued Dasilva for infringement, ultimately ending up with $27,000 settlement and $10,000 in legal fees.
Dasilva has seemingly learned nothing from this experience. In fact, it appears the lawsuit may have actually made him stupider.
"The reason I was sued was because I used a picture that I found on Google Images," Dasilva says in his warning to other content creators. But instead of simply warning people about the dangers of infringing on photographers' copyrights, Dasilva decides to warn people about "malicious" people out there who are trying to profit off their copyright.
"I never really thought that there are malicious people out there… there are people out there who maliciously put pictures on the Internet," Dasilva states. "They copyright pictures that they take, and what they do is, they'll get a copyright on it, and they'll put it out on the Internet, and it's freely available on the Internet. If you run a Google search their image will appear."
Yes, Dasilva somehow believes copyrighted photos returned in Google image searches are honeypots created by photographers. But that only scratches the surface of Dasilva's ignorance. He also appears to believe photos need to be watermarked clearly with copyright symbols in at least 12 point text so people like him won't fall into the trap of being sued for grabbing images off the internet and treating them as their own.
There are more gems to be found in Dasilva's video, including his assertion he's not going to slow down his infringing use of other people's photos. But then again, what do you expect from a video that leads off with "my lawyer told me not to make this video?"
Dasilva appears to believe he should have been given a warning by Michael Grecco, rather than sued. But given his grasp of the underlying issues (and his plan to continue his infringing acts), it's hard to believe a mere cease-and-desist would have been sufficient. He does suggest viewers search for Creative Commons images, which is a start, but seems to imply it's a last-ditch option for people with a reasonable disinterest in being sued. He also fails to clarify that Creative Commons is not nearly the same thing as public domain. Some CC licenses forbid commercial use.
If Dasilva knew anything about Grecco, he would have known the photographer is an aggressive litigant. He's sued plenty of publishing industry giants for alleged infringement. Grecco's litigation history may appear troll-like, but he's not in the business of suing IP addresses en masse or targeting individuals who may have posted his photos on their personal blogs. Grecco's aggressive litigation stance in no way validates Dasilva's claims he's the real victim here. And it must be noted Grecco has taken a far more progressive stance than many engaged in the business of infringement litigation. When he noticed PDFs of his photography book being shared at filesharing sites, he took it to mean he needed to create an electronic version to serve this underserved market.
If Dasilva finds himself sued again, it's doubtful he'll be able to secure the same representation. Unfortunately, the fallout from his lawsuit means thousands of people looking to him for e-commerce advice have just been made stupider.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, copyright infringement, dan dasilva, google images, michael grecco
Reader Comments
Subscribe: RSS
View by: Time | Thread
It's a scary world out there
Maybe Mr. Dasilva will start going after those evil websites that post copyright notices in tiny font at the bottom of the page and include "Terms of Service" like this:
But be careful. That particular website specifically states that it reserves the right to change the terms:
Who knew there were people like this in the world?
[ link to this | view in chronology ]
Re: It's a scary world out there
[ link to this | view in chronology ]
Re: Re: It's a scary world out there
For example, how does a EULA become a valid contract, as some people claim, when it is a given that most all people do not read it? Has this issue ever been ruled upon by a court of law in the US? I do not recall reading about it occurring yet.
Also of interest is the fact that one is not allowed to put anything they desire into a contract, as a judge could invalid the entire contract because the terms are unconscionable.
For example, giving up your first born would be unconscionable.
[ link to this | view in chronology ]
Re: Re: Re: It's a scary world out there
There's also the issue that many EULAs appear only after purchase and opening the package, no return allowed. It's a done deal, too late to back out, and then they show you all the conditions.
Which in turn raises another issue: If they have that right, then so do you. "By continuing installation in my computer or printer, the vendor agrees to these terms..."
[ link to this | view in chronology ]
Re: Re: Re: Re: It's a scary world out there
[ link to this | view in chronology ]
Re: Re: Re: Re: It's a scary world out there
Ahhh - Here it is:
http://www.nasdaq.com/article/updated-russian-man-turns-tables-on-bank-changes-fine-print-in-credit- card-agreement-then-sues-now-settles-cm267708
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: It's a scary world out there
Yeah, I always figured the way to handle the one-sided EULA problem would be to always replace their "EULA.txt" (or "license.txt" or whatever) with your own (more reasonable) terms before running the installer.
A screenshot of the acceptance screen and local storage of the new terms should suffice, since there is no contract signing involved and courts have ruled that click-thru acceptance of terms is enforceable.
I have yet to see anyone try it though, but wouldn't advise it either.
[ link to this | view in chronology ]
Re: Re: Re: Re: It's a scary world out there
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: It's a scary world out there
[ link to this | view in chronology ]
Re: Re: Re: Re: It's a scary world out there
There's also the issue that many EULAs appear only after purchase and opening the package, no return allowed. It's a done deal, too late to back out, and then they show you all the conditions.
Can you imagine if that sort of practice was applied elsewhere?
Imagine if you would buying a car sight-unseen, no ability to test drive, look it over before purchase, no idea what the terms of sale were until you had already bought it.
Adding insult to (financial) injury the contract that you were only able to read post-purchase was filled with clauses stating when you could drive the car and where, which shops you were allowed to take it to for repairs, even setting out which gas stations you were allowed to refill the tank at, with a final clause that if you didn't agree to all of the above you were prohibited from driving the car, re-selling it, or even returning it for a refund.
Pretty sure any car dealer that tried that sort of thing would get a brick or two (dozen) wrapped in lawsuits through the windows from furious customers, yet it's considered acceptable practice when it comes to software for some insane reason.
[ link to this | view in chronology ]
Re: Re: Re: It's a scary world out there
But it appears that too many people, which includes some courts, say differently. That those people forget that a contract needs to be negotiated and agreed to by both parties appears to be irrelevant, even though they are in fact wrong. They keep missing that the end user in a EULA never had a seat at the negotiating table, and those EULA's that are 'enacted' after the package is opened have serious deficiencies (no prior notice or negotiation), and those that are so long that no one will read (or understand) them are also seriously deficient (no comprehension and no negotiation).
Now to get the courts to agree.
[ link to this | view in chronology ]
Re: It's a scary world out there
Which only means something if the image is actually on the web site that holds the copyright to it. If someone else downloads the image and puts it up on their blog, which is where you find it, where's the copyright notice?
[ link to this | view in chronology ]
"La la la, I'm not listening!"
[ link to this | view in chronology ]
Re:
Either he put it up that way knowing someone would disagree with him, or someone did in the comments and he disabled comments afterward.
Either way, if comments were enabled, he would likely get blasted for his utterly unbelievable cluelessness.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
"I want to hear from other people that have encountered this" and 'no comments' sounds like he was hoping for people to justify his position and reinforce his idea that he's right. With people instead pointing out that he's dead wrong, making a colossal fool of himself and giving really bad advice he probably figured 'just' blocking comments was the best course of action(because he can't possibly be wrong, so obviously those people are merely blaming the poor innocent victim, him).
[ link to this | view in chronology ]
Re: Re:
It's not like he'd sue someone for using video they found on Google is it?
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Just Ask
[ link to this | view in chronology ]
Re: Just Ask
[ link to this | view in chronology ]
Re: Re: Just Ask
[ link to this | view in chronology ]
If your doing something for a buisness it is pretty simple test.
1)Did you make it? If yes your good. If not see #2)
2)Did you check the license and verify your allowed to use it? If not, then don't use it till you have.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
- If someone downloads your picture from the internet and uses it for their personal PC wallpaper - who cares?
- When they use it to generate income then there is a higher probability that the copyright owner will notice and take action.
[ link to this | view in chronology ]
Re: Re:
Who cares? I care.
I do a lot of part time photography. It became so difficult to get some people to pay that now, until they pay, they only get a thumbnail of the photo. We don't even bother putting a copyright notice over it anymore.
They can d/l the thumbnail, enlarge it, or whatever. But they remain unusable for anything serious. If you want to see the good, HD photo then pay us or come into our office. Paying for my work helps keep a roof over my head, buys my equipment, and will help send my kid to college.
So who cares if you steal my work? I do.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Not really. Copyright is from before the area of electronic media. It was created because there were ripoff publishing houses who specialized in creating cheap copies of just-published works without paying the author because the author did not have a contract with them.
And this was before the age of photographic reproduction: they still had to retypeset the books from available copies. So obviously they weren't "first to market". Just early enough to make a major dent.
[ link to this | view in chronology ]
copyright for authors or government?
i'm going with copyright for government. can't have seditious text undermining the monarchy(^^).
[ link to this | view in chronology ]
Re: Re: Re: Re:
That is copyright served the useful purpose of regulating the printing industry. It has never served the interest of authors, who could sell manuscripts to printers (who needed content) before they were granted copyright, and has enabled publishers to take control over authors works, and pay them as little as possible so long as they were gatekeepers to the printing presses.
[ link to this | view in chronology ]
don't get out much do ya?
[ link to this | view in chronology ]
Re: don't get out much do ya?
[ link to this | view in chronology ]
Dan DaSilva thinks he's saying "Hold my beer and watch this"...
...but his lawyer is hearing the army basic training quote "Okay, I pulled the pin. Now what? Where are you going?"
[ link to this | view in chronology ]
This kid is a marketing guru?
[ link to this | view in chronology ]
Re: This kid is a marketing guru?
Perhaps he should make a slight pivot to reputation management.
[ link to this | view in chronology ]
I just don't get it TechDirt
But when a photographer goes after some small-time moron using some photos without a license, that's just A-OK?
Do large companies have fewer intellectual property rights than individuals? Do costume companies have more rights to use IP without payment than this random idiot?
[ link to this | view in chronology ]
Re: I just don't get it TechDirt
The issue with Disney's case falls under a different part of copyright than this.
And in both cases, the underlying question should be: which side is promoting science and the useful arts?
[ link to this | view in chronology ]
Re: I just don't get it TechDirt
Do relevant markets and nuance mean nothing? The words in all the articles... are they just there for filler, as a long way of saying x sucks, or are they maybe describing relative merits of certain particular situations?
Also. Masnick just hates it when copyright law is enforced. (But some call him... Tim?)
[ link to this | view in chronology ]
Re: I just don't get it TechDirt
No more than Disney did when they ripped off the public domain when they created their characters.
So the result is that one needs to say they also ripped off the public domain (The Brothers Grimm) when creating their characters, and make some differences in the actual appearance. Problem solved.
On the other hand, taking someones photograph off the net and posting it on your site is just not the same thing as ripping off the public domain and redesigning the character to be different than the ones Disney created. Ever seen Snow White as a blond? Is that enough to make it dissimilar? Some courts yes, some courts no. It might be better odds than Roulette. Make you changes, take a roll.
[ link to this | view in chronology ]
Re: I just don't get it TechDirt
The article does not say that.
It makes no statement, one way or the other, on whether the copyright holder who sued DaSilva was (ethically) in the right.
The article is about DaSilva's video and its outlandish and inaccurate claims.
[ link to this | view in chronology ]
Re: I just don't get it TechDirt
Nice false equivalency, SirWired, not to mention a failure to summarize the articles correctly.
In the former article, TechDirt took Disney, the copyright owner, to task for being dumb at marketing. Not once did TD say that Disney's actions weren't following the law, just that they were stupid. TD recommended a more nuanced approach to copyright infringement on Disney's part to maximize its public image and, ultimately, its own profit.
This article isn't about Mr. Grecco, the copyright owner, being dumb at marketing, it's about Dasilva, the copyright violator, being dumb about copyright. Not only dumb, but deliberately dumb, refusing to learn. Indeed, TD has moderate praise for Mr. Grecco's personal policy about copyright infringement, as it is - gosh - nuanced.
These articles have different theses, SirWired, but they do approach them from the same perspective, if you look.
[ link to this | view in chronology ]
Re: I just don't get it TechDirt
Since Disney raids the public domain, this actually could be a real gray area.
[ link to this | view in chronology ]
That Youtube Video Title is in all Caps!
What a wasted marketing opportunity.
[ link to this | view in chronology ]
Whole new world?
My children grow up in an age where a huge amount of information is available with a Google search. They can take a picture and post it to Facebook using my old obsolete phone I don't use anymore.
These are two different worlds.
It is so inexpensive to take and distribue an image the perceived value of doing so is far less than it was when trees and chemicals were needed to do the same.
I think we will continue to see more and more people in younger generations who have a hard time grasping why someone deserves to be paid for doing something that anyone else can do for essentially free.
[ link to this | view in chronology ]
I do believe that content production will become more and more commonplace and less and less expensive, but I don't think that younger generations will have difficulty grasping the concept of paying for someone else's time, effort, and expertise, unless their parents do a crap job of explaining it to them. It's very simple. If you want someone else to do something for you (take photos, cook food, move your belongings, paint your house, etc.) or if you want to use their stuff (photos they took, rent their houses, cars, take a flight), you pay them for it. If you don't want to pay someone, do it yourself.
[ link to this | view in chronology ]
Hmmm, a marketing guru that truthfully, I have never heard of, looking at his website, there is a good reason I have never heard of him, so it isn't like this person is famous.
He took someone's photo and put it on his companies website, which obviously isn't something that people don't know that they shouldn't do. Its not like the article is teaching people not to do that, since well, duh.
He was sued and now owes $37K for using someone else's friggin picture, so its not like the poor shmuck wasn't punished. I mean, $37K is some real money.
So he made a stupid video making stupid claims. Is that what the article highlights? Some guy I never heard of did something stupid and ends up paying $37K for it? That is the reason for the article?
[ link to this | view in chronology ]
Re:
It's a copyright issue, and more specifically it's about someone who appears to have hilariously incorrect views on copyright, views which they are sharing such that there's the potential for other people to make similarly stupid moves thanks to him.
A counter question would be why wouldn't this story show up on TD?
[ link to this | view in chronology ]
Re: Re:
Maybe, but maybe his video is just an attempt to draw more attention to himself, which is happening and caused this article, which brings even more attention to himself.
I think this is a big issue here in the US. I call it the Kardashian of America. Everyone wants to be famous, everyone acts famous.
I see it more and more on LinkedIn, I don't go on other platforms, but now it is all likes, shares, followers, etc. People's goal is to be famous for being famous. I think this guy is part of that.
So that is why this shouldn't show up on TD. It isn't news, it doesn't teach anything, except it just gives someone more publicity.
[ link to this | view in chronology ]
Re: Re: Re:
Maybe, but maybe his video is just an attempt to draw more attention to himself, which is happening and caused this article, which brings even more attention to himself.
Contrary to the views of some, all attention is not good attention. In this case the 'attention' he's getting is people learning about how clueless he is, and how even getting slapped down for thirty-seven thousand apparently isn't enough for him to realize just how stupid his position and actions were/are.
'Look at me playing the victim card (badly) and defending something that got me sued' is probably not the attention he was going for if that was his goal, especially given how it might impact his ability to attract new clients.
So that is why this shouldn't show up on TD. It isn't news, it doesn't teach anything, except it just gives someone more publicity.
Fool gets slapped down in court, fails to learn lesson and continues to present horribly flawed ideas as to the law is relevant news for TD, highlighting just how stupid he was/is and why is most certainly educational for anyone who might have bought his 'woe is me, I'm just a poor victim' argument, and as for the publicity angle I covered that above.
[ link to this | view in chronology ]
He kind of has a point.
Let's say you want to talk about a celebrity appearing at some event. To illustrate this, you need a photo of said celebrity, but unfortunately you weren't there to take your own photos. You could just grab one off the net, except that in today's world, everything is owned by someone. Do you pay $50-100 for the rights to use a single copyrighted photo on your blog? What if you grab the image off a site where it seems to be free, but they took it off a site where it's copyrighted. Is your use of the photo "fair use"? Maybe, but do you have the money to go to court and prove it?
It's gotten so that using any photo that you didn't shoot yourself or any piece of artwork that you didn't personally draw, opens you up to the risk of being sued for thousands of dollars.
Think back to the early days of the web. Everyone used everyone else's images and web sites flourished. Then it started getting more commercialized. Now, professional photographers put their entire portfolio on online and sue when someone dares to use one of their photos without paying for it. Or news web sites buy a photo, put it online, someone else uses it and the photographer sues.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
A site can use a picture of Peyton Manning to illustrate a news story. If that photo is the subject (instead of an illustration) then they will need to pay for the use.
[ link to this | view in chronology ]
Re: Re:
Not quite. Fair Use allows someone to use other's work for personal or informational use. What Fair Use doesn't do is allow you to profit off of other's work.
That's not actually true, though it does seem to be an unfortunately common misconception. Commercial use can weigh against a finding of fair use as one of the factors that are considered in court, but it's not an automatic disqualification, and in fact a quick search through the TD archive found at least one case where an entire work was used and not a cent was required to be paid, and bouncing between articles found another example of commercial use still being considered fair use.
[ link to this | view in chronology ]
Re: Re:
But what guarantee do you have that even if your use is fair use, the copyright owner won't try to sue you?
[ link to this | view in chronology ]
Marketing Bozo Fails To Shock World
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Inconsistent
Meanwhile, Perfect 10 couldn't even win against Visa when Visa was processing payments for pirated images on the grounds that Visa didn't "control" the infringement.
[ link to this | view in chronology ]
Adds up fine when you aren't throwing in phantom numbers
What 'implied license'? Simply showing up in a search result does not in any way 'imply' that an image is free for use, so there's nothing to revoke. If you've got some extra information about an 'implied license' then by all means share it, because as it stands I'm not aware of any such thing.
A warning would have been nice, but from the sound of it he was using the image in question for business purposes, and not in a fair use fashion, so I imagine the photographer wasn't in the mood to play nice(not to mention his actions post-lawsuit leave me skeptical that it would have done any good), and while a DMCA is a method of telling someone to take something down it's not like there's a requirement (as far as I know) to file one of those first and only move on to a lawsuit if that doesn't work.
As for Perfect 10? Yeah... if you're using them as an example, you might want to do a little research, because they've failed spectacularly in multiple cases with their novel interpretations of the law, so might want to choose a better former company to hold if if you want to bolster any argument you are making.
[ link to this | view in chronology ]
Re: Inconsistent
For example, suppose you embed an infringing copyrighted image in a comment here at TD. The copyright owner can now sue you with or without warning. If they want the image removed faster, they send a DMCA notice to TD. Then, TD can remove the image, or choose not to remove it and risk inclusion (for contributory infringement) in any lawsuit against you.
[ link to this | view in chronology ]
[ link to this | view in chronology ]