Pixsy Demand - Again!

[AndyJ]

Hi steve,

It's probably worth starting off by saying what follows doesn't meet your criterion of 'That's if a lawyer consultation tells me that's a good idea, this will be in a few days hopefully. Otherwise I won't.' I can only try explain what the law says and how the court system works in general terms. I can't advise you on how to conduct your own litigation.

As I hope I explained earlier in this thread, not providing a credit where one is allegedly required is not a matter of copyright infringement. It's a matter of moral rights and contract law. This is important because moral rights (or breach of contract) are not matters of strict liablity, meaning that the claimant would need to prove all the facts he alleges. In strict liability cases, once the two basic facts, that the claimant is the owner of the copyright and that infringement has occurred, have been established, it is up to the defendant to show why he isn't liable for that infringement, for instance because an exception applied. This difference with moral rights and contract law means that if your matter goes to court, the claimant's legal team will need to work harder and thus this will cost them more. Legal fees are not awarded against the losing party in the Intellectual Property Enterprise Court Small Claims track, so this is a major disincentive for the claimant if he knows you are going defend the claim.

The way Pixsy get judgments in their favour is when the defendant doesn't show up and so the claimant gets a default judgment.

With a little research you can defend yourself in the IPEC Small Claims Court as the procedures are relatively simple and the atmosphere is relaxed. Since the image was not being offered with a fee attached (like a normal licence) the claimant would need to convince the court that the damage to the photographer's reputation caused by the lack of a credit was valued at £556. I can't see any court accepting this as a realistic value when the image was being offered for free. Since the courts are aware of the sort of honey trap operations which surround certain CC licence claims, it would probably not be hard to convince them that that was what was happening in your case. However that is about as far as I can go in discussing possible defences.

Just to cover one point you raised, you won't be eligible for legal aid if you did want to engage your own solicitor to advocate on your behalf in court. Legal aid is no longer available for most civil claims thanks to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The best you can expect is that a solicitor is prepared to offer a free consultation (lasting around 20 minutes, generally) in which you can outline your case. This will not cover any advocacy on your behalf in court. This service, where it is offered, is somewhat similiar to getting a builder to give you an estimate for some work on your house. It's free, but undertaken in the hope that you will engage the solicitor. Therefore the odds are that the solicitor won't provide much advice on how to carry on litigation without him/her, just as a builder wouldn't tell you how easy it would be for you to do your own loft conversion!

Then, looking at the end of the court proceedings, if judgment went against you, you could certainly ask for time to pay in installments which makes it less attractive to the claimant.

However I hope that all of that is hypothetical since I don't think, with the right attitude from you, that this will go anywhere near court. Provided you demonstrate resolve and an understanding of where you stand legally, Pixsy may lose interest in pursuing the matter. The longer it takes them and the more resources they need to devote to your case, the less attractive it is for them. If they carry out their threat of passing the matter to their solicitors, it will then become a straightforward cost/benefit analysis which usually says it won't be worth taking it to court. I've explained why this is in several other threads which you've probably seen so I won't repeat that here.

I hope that helps with some of the background and allows you to put together a strong response when making your counter offer. Remember that the person dealing with your claim is not legally trained and is working from a script, so too much legal argument in the early stages will be wasted on them. However it is important to impress on them that you know you have a strong defence and that you will defend yourself against the unreasonable claim of £556. Whatever else you do, do not make any statement to the effect that you knowingly omitted to provide the attribution required by the CC licence.

Good luck.

[stevedavies]

Thanks Andy. You are such an amazing source of legal information here.

I have not shown to Pixsy that I am aware of what the CC license is or that I was aware of it at the time.
Which actually is the truth as I wasn't aware of how CC licenses work back then though I should have been. I figured it's a free image, okay to use it, job done. I am now far more clued up as I've read up on it all and hate the fact that CC 4.0 means that creators have to give 30 days notice. But not CC 2.0. Shameful how this works. A take-down notice is all I'd have needed in Nov.

And I 'll reiterate this and my lack of knowledge of CC licenses if it gets to court.

Right now, I'm building my next email to Pixsy in response. And through yourself and others, I am building a case though I would like a lawyer to go over it beforehand i.e. before I send my next response to Pixsy which may include negotiation.

Actually, I view negotiation as something direct with the creator.

I've been advised by one lawyer to wait till the 6th Sept, their deadline, and see what happens or negotiate. Not really a free consultation as such. I hope to get more advice on my next email before I send it to Pixsy. As that will be repeated in court if it goes the distance.

Justifying the £556 fee is a lost cause surely. No way can that be justified. And the court costs alone should put this off. The creator probably thinks I'll be bullied into paying or scared into paying as someone said happened to them in another thread. Nope, Pixsy, not me.

I have considered that if it goes to court, not showing up. And take the CCJ but do I need to present myself or be represented if that happens? Or perhaps I don't need to be in court and can negotiate instalments later? Not sure how a court resulting in a CCJ works. And it riles me up to think I could get a CCJ for something this dumb. Instalments even at a lower fee will need to be set up as my finances are low at present. I may be on the road to an IVA possibly so I can't envisage a judge seeing any point.

I'd love to hear about the guy from the other thread who sent the email last year, how that went with Pixsy. I'm not finding any cases of Pixsy winning or losing in court, only about people being terrified and just paying the fee.

Thanks again, Andy.

[AndyJ]

Hi Steve,

On the basis that it is better to be prepared for all evenualities, you should read the Guidance Notes for the IPEC Small Claims Track to familiarise yourself with the court's procedure. As you will see everything is set up to make it possible for a layman to defend a claim without the need to engage a solicitor or barrister to act as your advocate.

I spoke previously about how the economics of taking a claim to court do not favour the claimant if the true market value of a licence is in the tens of pounds, but this only works if the defendant defends the claim. Not showing up for the hearing means that the claimant (not Pixsy) doesn't need to justify why their their claim is for £556 and so the damages will be set at that amount by default. Secondly if the defendant doesn't turn up the claimant can argue that the defendant has behaved in an unreasonable and uncooperative manner and that in the circumstances the claimant should be entitled to additional damages. Since the defendant isn't present to oppose this, the court may be persuaded to use its discretionary powers to award these additional damages. These additional damages could double the initial award of damages. In this event, the claimant (and Pixsy) have the win they were after, and the defendant is actually in a much worse position than he or she would have been if they had just paid the original Pixsy demand.

As I have said I can't advise you on how to conduct your litigation, so I can only paint a generic picture of how things might unfold. Incidentally, although this procedure is called a small claims track, it is not the same as the County Court small money claims procedure. The IPEC is actually part of the High Court of England and Wales. The order of the court which awards the damgages is not a CCJ, but an order of the High Court. Practically speaking there is very little difference, but defaulting on the court order then becomes a contempt of court and could result in a custodial sentence, although this is highly unlikely.

[stevedavies]

Hi Andy. Great advice again, and thanks for your time.
Sounds ominous now that I know it's under the hIgh court. I really can't believe how this is all happening over a free image. But of course, as of last week and into this week, the license usage is clear. Had I used Unsplash, this would not be happening.
I will be defending and have almost done my next response to the case manager at Pixsy.
I will update this thread here with what happens next and continue to update here for the benefit of anyone else who is about to or currently dealing with this rogue disgrace called Pixsy.
I should have my 2nd email off tomorrow. I expect they'll respond. It will show how clued up on the ramifications of the case I am including my understanding now of how the court case goes forward, the IPEC, the costs for the claimant, and what hassles are involved.
The email also makes it clear I will defend.
I'll be back with an update asap.

[stevedavies]

Hi Andy. I found the creator of the image, a guy in Slovenia on LinkedIn. Did a copyright search against his name. Looks like he took a company to court for infringement last year. Is it a worthy idea to contact him direct or wait to hear from Pixsy off my 2nd email?

[oooooooooo]

You may wish to raise the terms of the licence with Pixsy, depending on the licence applied to the images you are being accused of stealing. It is evident that there are photographers using the CC 2.0 licence, which was superseded more than 15 years ago, seemingly to try to use its less lenient terms as a way to wring money out of people.

You can also draw attention to Creative Commons' licence enforcement terms:

(1) The primary goal of license enforcement should be getting reusers to comply with the license;

(2) Legal action should be taken sparingly;

(3) Enforcement may involve monetary compensation, but should not be a business model.

It seems to me that companies like Pixsy are clearly contravening the third point.

[stevedavies]

Thanks for the advice.

That is an interesting couple of points I can mention with this company that is not going away. I got their latest threat today and how they plan to escalate.

I added all the details in another thread
viewtopic.php?t=3504

Not sure what to do yet. I know I can't and won't pay the fee they request. It's a nonsense fee for all kinds of reasons that surely the IPEC support, based on the advice here and what I've learnt about the IPEC, how CC views this practice and the Copyright Act itself.