Thursday, April 23, 2015
by: Matthew Schlecht
ATA discussion lists have recently touched on the issue of copyright of texts, but copyright extends beyond the written word. I had a recent run-in with a UK-based company, License Compliance Services (LCS), that appears to be operating out of Science Photo Library (SPL)* in Seattle, WA, ostensibly their client. An email message arrived in my inbox around mid-March informing me that I was in violation for having a copyrighted image on my web site. I was instructed to show a valid license or pay the penalty, which in this case was $510, but offered a 5% discount if I settled within 10 days.
They had me dead to rights. The message contained a screenshot of my site’s “Presentations” page, and of the offending image. I had uploaded to my web site§ a PDF of my presentation at the 2011 ATA annual conference entitled, “Current Topics in the Scientific and Medical Research Fields for Japanese Translators”. On Slide 5, I showed a nice graphic of the DNA molecule that I found at SPL, within a section entitled “Royalty-free Images”. What could be better? I embedded the graphic in my PPT and included the URL for attribution. I was sure that attribution placed me squarely under the protection of the Fair Use Doctrine. After all, I received no commercial benefit from this presentation, which was intended to be purely educational.
The technology for searching the internet is making phenomenal strides, and one such feature is the ability to search for images. A simple version of this is the Google Image Search feature, in which one can paste in an image or supply the URL of an image, and Google turns up hits related to that image. There are obviously proprietary algorithms out there that go far beyond what Google makes available to the general internet public. LCS must have one, and has learned how to monetize it.
Here’s the deal, as I understand it: LCS approaches an image site owner and offers to use their search-bot to locate instances of the client’s copyrighted images on the web. If they find a hit, they cross-reference the located site with a list of licensed users from the client. If they don’t find a license, they generate a “We Got You, Pay Up!” message to the offender (me, in this case). I imagine their business model is that they keep a percentage of whatever they take in, passing along the rest to the copyright owner. It would be feasible to do this on a contingency basis, since every step of the searching, cross-referencing, and collecting process can be automated. Basically, a human sets up the search parameters, and then they let their spider-bot crawl around the web until it turns up a tasty morsel. Low investment, and wait for cash to come flowing in.
This is like the automated traffic light cameras and speed traps operating in many cities around the country and the world. A video system identifies a miscreant running a red light or exceeding the speed limit, photographs the license plate, looks up the registration owner, generates a citation, and splits the proceeds with the municipality. All perfectly legal! Although some victims have challenged the accuracy of this system, courts have generally ignored these complaints.
I did some searching on this LCS outfit, and it seems they get around. In one case, working for the client Cartoon Stock, they hit up a lady who works for a church for a cartoon she placed in the church’s online newsletter. They wanted $109, but "kindly" agreed to drop the fine by 20% to $87.20.‡
So, back to me and my high-tech bounty hunter. At first, I almost deleted the message because it looked spammy. After taking a closer look, I contacted a local translator colleague who is also a lawyer and specializes in contracts. He gave me some good advice, and provided me with links to the pertinent sections of the US Copyright Law.† From Section 504, “…the copyright owner may elect…to recover…an award of statutory damages…in a sum of not less than $750 or more than $30,000 as the court considers just.” So, if they mean business, it could get rather costly. LCS’s message to me made it quite clear—this was not “cease and desist or pay up”, it was “cease and desist and pay up”. My colleague was kind enough to prevail upon a friend of his, a lawyer who actually practices in copyright infringement matters, to speak with me. This lawyer was generous enough to discuss my matter with me briefly without charge. His bottom-line advice: their offer is as good as it gets. He sometimes gets a plaintiff to reduce the payment through negotiation, and he recommended I do that.
I called the LCS number, and explained to the LCS rep that I was a small business owner (shallow pockets), that the image in question was part of a presentation done for educational purposes, that I supplied attribution, that the image was obtained from the “Royalty-free” section, etc. She listened patiently, explained why all of my excuses were immaterial, then offered to reduce the payment by 25%. I pleaded with her a bit more, and she left me on hold to “talk it over with her boss”. She came back with their final offer, $350.
Would I be in big trouble if I hadn’t paid? No idea.
Do I feel this was right? No way!
Do I believe I have a legal leg to stand on if I were to refuse and they were to pursue? Not really.
I have now removed all the PDFs from previous presentations from my web site, at least the ones that include graphics of unclear copyright status. I had always thought it was beneficial to have these available, since attendees to my presentations then don’t need to scribble notes so furiously and can relax and enjoy the show, secure in the knowledge that they can access any interesting details afterwards. I don’t know how I will handle this availability in the future, but possibly put them up for a week or two. Long enough to be helpful, but briefly enough not to attract nasty search-bots. I’m also going to think more carefully about the graphics I embed in my presentations.
‡: see discussion at tinyurl.com/nzwldbw