Pixsy demanding I pay a fee for unauthorised use of an image. Urgently need help.

[stevedavies]

Sorry to sound so defeatist here, Andy. Just an additional post as victims will be keen to see updates here. I can't take the risk that this goes to court and I lose as that would result in bailiffs coming to my house to collect far more than the demanded fee.
I will try the site you sent though and also I have Find a Solicitor to try too. I need to find out how the court treats a guy who is too broke to go through the litigation costs of a lawsuit.

[AndyJ]

Hi Steve,

You have to do what you think is right for your circumstances. It is precisely because I can't do due diligence into those cicumstances via a public forum, that I cannot advise you on the course you should take.
The other problem with a public forum is that there is every chance that the claims companies like Pixsy and VRG monitor them and so gain an insight into your concerns and your intended course of action, and act accordingly.
I hope you do manage to get some professional advice which is tailored to your individual risk profile and financial position.

Andy

[stevedavies]

Thanks Andy for all your advice. I'm hoping to hear from the IP Pro Bono service.

The main issue I have is I don't feel that the fee they demand is unworthy of an IPEC court case. It's more if the lawyers feel it's not worth their time as it's such a low amount vs what they are used to.
And also how does it normally go down in the IPEC court? Is the attribution failure, while not a transgression, enough for the court to go against me?

Something going for me, other than the lack of justification they offer for the fee amount and the reasons. It seems that Flickr have updated their community guidelines and now require that artists do notify users of their images first if not attributed. I have asked Flickr to investigate the client of PIxsy, and how he uses his images to make money on Flickr. The Trust and Safety team at Flickr are not impressed that I was not notified it seems as I was asked by them if I had been.

This should carry some weight.

I'll keep updating this thread. Unlike a lot of people who just disappeared and never came back to update. Either they just paid or went through a lawsuit and can't discuss. I don't give a toss... I'll be very transparent about how it goes at the IPEC. People need to know.
I'm also contacting journalists soon to fire up a piece on Pixsy that will name and shame; and the copyright trolling culture. No matter how it goes, I won't rest until some pain goes back their way for the stress they've caused me. The first is hopefully their client getting banned from Flickr.

I'll keep updating here.

[stevedavies]

And as a useful update. This may provide weight to my case if not even help put an end to it. Hard to say.

Flickr updated their guidelines as I mentioned and I want to post that change in case anyone not read the March 2023 update.

Previously, Flickr’s community guidelines were a list of do’s and don’ts. Because of this format, our community guidelines evolved into a long list of policies and prohibited behaviors with minimal information about what type of interactions Flickr is for.

Then the big specific part that changes how they view use of the licenses:

Another significant addition is the new “Give some grace” guideline, applicable to Flickr members using Creative Commons licenses on their work, asking licensors to give good-faith reusers a 30-day grace period to correct any error or misuse of their open-licensed content with no penalty. This change was introduced to prevent the malpractice of so-called copyright trolls using the threat of litigation to generate income, and in support of the strategy for addressing license enforcement described in the Creative Commons Statement of Enforcement Principles.

Flickr applied the update in March so any demands after that that did not follow guidelines and not give 30 days grace to good-faith reusers is a breach of their guidelines. This may be a step in my favour.
https://blog.flickr.net/en/2023/05/18/h ... uidelines/

Creative Commons Statement of Enforcement Principles are also updated and at https://creativecommons.org/license-enf ... rinciples/. I am not sure when CC made the changes but it's significant. Not really directly changing how copyright was misused I guess in the IP law's eyes but significant. Or perhaps it is enough. Don't know.

As a licensor, you may always choose to reinstate a license that has been terminated, no matter which version of the license you’ve used. When you contact someone about a violation of the pre-4.0 license terms and they take the necessary steps to correct their errors, it is recommended that you follow the 4.0 practice of reinstating the license.

How a court wold view this, I'm not sure at the IPEC. Creative Commons stress that "Legal action should be taken sparingly." I don't agree with this part that says "monetary damages equal to the amount they would have requested in a negotiated license agreement" but CC don't want firms like Pixsy using the infringements as a business model as it is damaging to the wider community of artists, of course. And their statement rightly says:

But damages awarded for copyright infringement can sometimes be far out of proportion to the magnitude of the harm, and often inappropriate in the case of a good faith reuser. When enforcement becomes profitable, especially when licensors act in a way that suggests they want reusers to violate the license so they can collect fees, it crosses over into trolling and runs counter to these principles.

Anyway, don't know if this adds strings to my bow but it does put pressure on Pixsy's client to explain whey he breached Flickr guidelines.

[stevedavies]

Hi Andy

What do you think of the changes in the CC terms and Flickr guidelines?

Feel free to PM me if you prefer.

[AndyJ]

Hi Steve,

They are both welcome improvements. The ethos of the CC system has always been the free sharing of works, and any financial exploitation of the system clearly undermines this philosophy. However given human nature, I'm sure that for many creators, the desire for personal recognition probably ranks quite high among the factors for why they put their work on Flickr in the first place.

[stevedavies]

Hi Andy

What's the difference between infringement by copying or infringement of the moral right of the photographer to be credited as the author of the work? Is one more serious than the other when it comes to Flickr free images under CC 2.0?
Though, moral rights can result in damages too apparently.

I'm possibly over analysing but I still see moral rights as the focus since it's a free image, and infringement would apply if the image was not free to put the creator back in the financial position he'd be in had the image been paid for. Which doesn't apply to free images.
However, he has sold image licenses but not on Flickr. So he could compare the value of the image to those.

The IPO information on the UK GOV site is clear on infringement by copying. So, does the IPO view downloading an image and uploading to a server differently to linking to the Flickr image URL and not downloading it?

In either case, the image would still not have had the attribution as per CC 2.0 as I was not aware it was essential.
I'm accused of use of the image. Going through their emails, no mention of 'attribution' or 'moral rights'. Just that the image was used without permission.

It's the CC 2.0 license that's created the legal issue but CC want the license reinstated when misused and the user notified, and Flickr require that users are notified with 30 days to correct the transgression.
I'm not sure where favour lies here as I build my case further ahead of the next threat from them.
I understand you can't offer legal advice, but if you could shed a bit of light on this, would be great. thanks.

[AndyJ]

If you look back to page one of this thread I explained the difference between infringement by copying and infringement of moral rights. Both can lead to damages, but the way the damages are calculated in each instance is different. I can't see how any claim against you for copying can get past the first hurdle, since obviouly when it was released using a CC licence, that permitted the image to be copied. That was the permission to copy. The lack of a suitable attribution is either a breach of contract (a licence is a form of contract) or it is an infringement of the moral right of paternity. The IPO is a government agency and so its guidance on matters like this, while it is based on their best assessment of the law, is just guidance. A court is unlikely to take the IPO's views into consideration when hearing a case.

[stevedavies]

Thanks Andy. Any updates to my ongoing battle if you like with Pixsy, and I'll update the thread here.
I'm actually thinking they are on the back foot now. Despite the case investigator saying he categorically wouldn't drop the fee in a big threat a couple of weeks ago, he has now asked me for a new negotiated fee. On the form there is a 3 month payment plan and he's pointed me at that. Not a chance.
I find that funny after he said the original figure was final and reflected the harm that the photographer is due.
Probably as I said I'd negotiate but actually I'm just dropping his weight before I close it all down and refuse to get in touch unless it goes legal.

I'll keep the forum posted on updates.

[AndyJ]

Thanks Steve

[stevedavies]

An interesting case that occurred and written about in 2019. Shows how a court would likely view a case of just 'no attribution' being the accusation over CC-By licenses. Shows how much it's worth to the claimant which can be zero yet costing lots in legal costs. It's interesting when the claimant is outed as a copyright troll when it's clear that's why he or she used Pixsy. In this case, the photographer claimant was not making more than pennies out of his profession. I imagine it must be the same though even if the photographer does make a living from licensed images when it comes to a choice made to apply a free CC license to an image unless the IPEC views statutory rights and moral rights damages are justified. In my case, it was transformative and no money was made from the web page.
https://blog.ericgoldman.org/archives/2 ... -v-wos.htm