When one considers the time and cost of the legal proceedings to enforce copyrights, and the limitations of certain types of remedies, it’s perhaps not surprising that photographers may resort to other approaches for remedying infringement. For example, while a Digital Millennium Copyright Act (DMCA) takedown notice can be an effective way of quickly stopping an instance of infringement on the web, even an effective takedown notice won’t help compensate for the use of an image prior to the time it was pulled down. Since it’s natural for those whose rights are violated to want to exact some measure of revenge, albeit frequently couched under the guise of justice, it’s easy to understand why photographers would channel their creative energies in pursuit of "creative" copyright remedies. However, there’s a danger to pursuing such remedies without being fully aware of the potential consequences; in some circumstances, such efforts may be counterproductive.
The Case Study: "Outing A Thief"
Early in 2011, California-based photographer Syl Arena took matters into his own hands after discovering an instance of infringement that hit close to home. Arena discovered that someone created a PDF containing all 409 pages of his book, Speedliter’s Handbook: Learning to Craft Light with Canon Speedlites (Peachpit Press, 2010), and posted the file to the self-publishing website, Scribd.com. By the time Arena discovered his book on Scribd.com, it had already been downloaded 101 times. Arena promptly prepared and sent a DMCA takedown notice to Scribd.com, and the next day, he received an email from Scribd.com confirming that the website pages with his book had been removed (despite the relatively quick response to the takedown notice, Arena noted the infringing copy of his book was downloaded another 14 times after he sent the notice). With the infringing copy of the book offline, there would be no further infringement, at least through Scribd.com. So far, so good.
However, Arena’s efforts to remedy the infringement didn’t end with the DMCA takedown notice. After his initial success, Arena investigated the identity of the person whose account was used to post his book on Scribd.com. His investigation identified Ann Hillsgrove, a self-described amateur photographer, and Arena then prepared an "open letter" to Hillsgrove on his blog, speedliting.com. In an entry published on his blog, entitled "Hey Ann Hillsgrove, I Think That You And 101 Other Photographers Stole From My Family," Arena identified Hillsgrove, included a snapshot of her Facebook page, and various other information about her, which he was able to gather from the Internet. After "outing" Hillsgrove as the person he believed was responsible for the infringement, he then proceeded to explain who he was, the difficulties that he encountered on the project (even noting that he ran out of money halfway through the project), and that he expected the return on his efforts—royalties from the sale of his book—would "help [him] feed and educate [his] children in the future." According to Arena’s open letter, "[b]eyond the lost income, this has also cost a significant amount of time and created a good bit of stress." Arena concluded the open letter with the self-answered question, "[w]hat were you thinking? I’m thinking that you and 101 other photographers stole from my family."
News of Arena’s blog entry spread like wildfire to various photo-related websites and Internet message boards. It very quickly found its way onto SportsShooter.com under a discussion thread with the subject heading "Outing a thief—awesome story," and on Flickr under the heading "OT: People ripping off Syl Arena’s new book [The Speedliter’s Handbook]." Even on Arena’s own blog, the open letter prompted over 150 responses. As Arena noted on his blog, "[t]his issue has gathered far more attention faster than any other article I’ve written—ever." Not only did the open letter garner widespread attention, it also prompted a number of other people to make suggestions for exacting revenge. For example, Missouri-based photographer Darren Whitley posted a message in the SportsShooter.com discussion which read "[b]est part is [this] way the community can absolutely hammer [Hillsgrove] on Facebook."
Since it’s natural for those whose rights are violated to want to exact some measure of revenge…it’s easy to understand why photographers would channel their creative energies in pursuit of ‘creative’ copyright remedies.
The only problem is that Hillsgrove vehemently denied having been involved with the infringement. In a response that Hillsgrove posted to Arena’s blog, she flatly denied uploading the copy of Arena’s book. According to Hillsgrove, "[a]ll I know is that I logged into my Facebook account for the first time in probably a couple of weeks and I had a bunch of nasty messages waiting for me… I have a family of my own and wouldn’t dream of ripping off an author of a photography book (or any other book) like this." In her response, Hillsgrove also addressed some of the nasty comments she had received: "I also don’t like the fact that my name is being plastered all over the Internet as a thief and a criminal. I don’t know what else to say…."
To his credit, Arena published Hillsgrove’s response prominently in a follow-up entry on his blog, together with some of the lessons that he learned from the experience. According to Arena, "I’ve learned that it is completely plausable (sic) that access to Ann’s Facebook account was nabbed through an open router via [hacking software]." Arena also revised his original open letter, instead addressing it to "Computer Hijacker," and removed the details relating to Hillsgrove.
The extent of the revisions didn’t end with the open letter. Arena also removed some of the responses posted to his blog attacking Hillsgrove. As Arena wrote, "For the first time in my history as a blogger, I’ve decided to broadly censor reader comments. There’s been enough vitriol, name-calling, and accusations. So, if you’ve submitted a comment to this post that challenges [Hillsgrove’s] claim of innocense (sic), I have unilaterally decided to delete it rather than approve. This was a hard decision—but, I think, an appropriate one in this instance. It’s my blog. I think the negativity needs to stop."
With regard to Hillsgrove, Arena wrote in his follow-up that "[a]s for the vitriol and excessive [negativity] expressed by so many towards Ann, I apologize to Ann here and will do so in a more detailed private writing. I accept her plea of innocence at face value." However, Arena stopped short of expressing regret for having published his open letter. In closing, he wrote, "[i]f you’ve read this far looking for me to express a global declaration of regret, I will not. There is a real cost to web piracy. I am one of the faces of those impacted by web piracy. I now add Ann’s name to that list of victims as well. Draw your own conclusions. Then figure out how to move forward and fight web piracy in your own way."
Lessons To Be Learned
Arena’s situation illustrates s
everal lessons, both positive and negative. Although there were some things that Arena did correctly, other actions that should have been taken were not, and some actions were ill-advised.
For starters, Arena’s use of a DMCA takedown notice was appropriate and effective to quickly prevent the further dissemination of illegal copies of his book via Scribd.com. Although it’s important to remember that liability may attach in instances where the use of DMCA takedown notices is abused (at least one court held that it’s necessary to perform a fair-use analysis before sending a DMCA takedown notice), the likelihood of such liability is greatly reduced where the entire work has been illegally posted for redistribution, as in Arena’s case. And since online providers like Scribd.com attempt to avoid liability for copyright infringement their users commit, they’re quick to take steps to ensure that they can take advantage of the safe harbor—immunity from liability for copyright infringement—by complying with the DMCA takedown notice. As it turns out, Arena found illegal copies of his book on other sites, and he sent a dozen or more DMCA takedown notices, all with similar results.
Unfortunately, Arena also missed an opportunity when dealing with Scribd.com and the various other sites that posted illegal copies of his book. Since he knew there were 115 downloads of the illegal copy of his book from Scribd.com, he also could have requested whatever log information Scribd.com had relating to the illegal downloads. Even if Scribd.com wasn’t willing to provide the log information to Arena directly—many online providers won’t turn over information that will identify their users without receiving a subpoena—Arena could have placed Scribd.com on notice that the log information was going to be evidence, and insisted that Scribd.com preserve that information as evidence pending receipt of a subpoena. The reason for making the request, or for notifying the provider to preserve the information, is because most providers only maintain log information for a relatively short period of time—sometimes as little as 30 days—and once that information has been deleted, there’s no way to track down the people who downloaded illegal copies.
Most people don’t know that websites typically generate log information, or if they’re aware of the existence of the information, they underestimate its value. Indeed, many people misapprehend the amount of privacy that exists on the Internet,and don’t realize that the same technology that facilitates the sending and receiving of information over the Internet is also capable of being used to identify users interacting with other websites. Log information often can be used to identify who uploaded the illegal copy of the book and who downloaded an illegal copy.
Even if Arena had no interest in pursuing the downloaders, the log information may nonetheless have been important. Looking beyond the Arena/Hillsgrove situation, the log information may also help identify the source of the infringement. Without the log information, the repetitive sending of DMCA takedown notices can seem like a bad game of "Whac-A-Mole." While the takedown notices may cause websites to take down the infringing material, they do little to help pursue the infringer who posted the content, and hopefully, bring a halt to that person’s infringing conduct. It’s only by pursuing the people responsible for the infringement—which often necessitates the use of log information—that it may be possible to stop the infringement at its source.
The log information might have also helped determine the truthfulness or falsity of Hillsgrove’s denials. Since the purported account holder’s name was visible, it may have been logical to assume that Hillsgrove was responsible for posting the infringing copy of Arena’s book because it appeared on her account on Scribd.com. However, such an assumption may prove untenable in the face of Hillsgrove’s denials and explanation that her Facebook account (which was then used to access her Scribd.com account) was hacked. In situations such as this, log information showing precisely which IP address was used to post the infringing work can make or break a case. For instance, if the IP address used to post the book points to Hillsgrove’s house, such forensic information can be used to prove the lack of veracity of Hillsgrove’s denials and protestations. On the other hand, if the IP address used to post the book points somewhere else, it may help establish Hillsgrove’s innocence.
While failing to request log information may be an opportunity missed, sometimes the more prudent course of action involves taking no action at all. Indeed, if Arena did something ill-advised, it was venting his frustrations and anger in the open letter, which he then published for all the world to see. In the United States, most states recognize the concepts of defamation, libel and slander, and many consider accusing someone of engaging in criminal activity as defamation per se or libel per se—where liability for publishing the offensive statement creates a conclusive legal presumption of loss or damage, which may also entitle the person falsely accused to an award of punitive damages. In some jurisdictions, the person publishing libelous or defamatory statements may even face criminal, and not just civil, liability (in Florida, for example, certain instances of defamation and libel also may be punished as first-degree misdemeanors). Arena is fortunate that Hillsgrove—who was vilified by numerous people who read Arena’s open letter—didn’t take action. As Hillsgrove wrote in her response to Arena, "I think that people who said really nasty things to me and about me should know that it wasn’t a walk in the park for me."
Above All, Maintain Objectivity
Even if there were no risks associated with creative approaches to remedying copyright infringement, and even if you possess sufficient technical knowledge to seek out and preserve the proof necessary to effectively enforce your rights, there’s still an inherent danger in pursuing remedies for claims of infringement by yourself, namely the loss of objectivity.
As the English philosopher Francis Bacon aptly suggested some 400 years ago, "[t]he human understanding is like a false mirror, which, receiving rays irregularly, distorts and discolors the nature of things by mingling its own nature with it." Although it’s not impossible to maintain objectivity when encountering an instance of infringement, it’s far too easy for our emotions to color our objectivity in subtle ways that effectively preclude us from truly being objective. This is particularly true when we believe we’ve been wronged, and when the ethos of that violation, even on a subconscious level, triggers the panoply of emotions of wrongs committed against us in the past.
There’s an old adage that the lawyer who represents himself has a fool for a client. The adage is equally applicable to nonlawyers. It’s only by remaining objective, or by seeking the guidance of someone who can remain objective, that we can most effectively pursue claims of infringement and enforce our rights. Fail to maintain objectivity and to know what you can and can’t do when seeking to enforce your rights, and you may end up playing the fool.
Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for more than a quarter century. He can be reached at [email protected] or [email protected]