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Not-for-Profit, Award-Winning Community News and Views for Windham County, Vermont • Since 2006
Business

When a business encounters a copyright troll

It’s easy to make a mistake in good faith. It’s more difficult to escape from copyright lawsuits

Peggy Farabaugh, the CEO of Vermont Woods Studios (vermontfurnitureblog.com), a former distance-learning professor at Tulane University with a master’s in environmental health and safety, she turned an interest in forest conservation and endangered species into a growing, local business. This piece was adapted for print with her permission from a post on her website about the lawsuit. She can be reached at Peggy@VermontWoodsStudios.com.

VERNON—My company works with Vermont craftspeople to market and sell their furniture online and at our new gallery and showroom in Vernon. We put a lot of time and resources into creating our fine furniture website. It’s where we publish original photos, artwork, opinions, and ideas.

On the bottom of every page is a note indicating that all of our content is copyrighted. Still, we do find content gets taken or imitated by competitors from time to time. It’s frustrating. That’s one reason we are careful to avoid violating someone else’s copyright.

So I was pretty horrified when recently, the Windham County Sheriff came to my house and served me a copyright infringement lawsuit.

Here’s why I’m being sued: In 2010, a student who was working with us wrote a blog post about the fact that we had just delivered a handmade cherry dining set to a customer in Hawaii. We were excited to see our company growing and placing Vermont-made products so far away from home! A customer photo of the furniture was included in the post, along with a small photo (not much bigger than a postage stamp) of Hawaii.

It turns out the Hawaii photo was taken by Vincent K. Tylor. We obtained the image from a website that advertised free photo downloads. But it was invisibly tagged, and on May 5, 2012, I received a letter from Carolyn Wright and Cindy Hsu at PhotoAttorney.com demanding $9,500 for use of the photo.

If I refused to pay up within 10 days, they said Tylor might sue me for $150,000.

I immediately took the photo down and called the photographer to explain. He refused to talk to me, insisting that all correspondence go through PhotoAttorney.com.

I called and emailed PhotoAttorney.com several times trying to reach a fair settlement. We negotiated for months, and eventually they went away.

On April 25, I received a letter from Adam Gafni, an attorney at Woolf Gafni & Fowler, a California law firm, demanding $12,000 as a “final offer.”

The letter contained inaccuracies. I responded via email the same day, telling Gafni that I intended to file a complaint about him to Vermont’s Attorney General’s office. I then called him, discussed the facts and explained that ours is a small company that cannot afford a $12,000 fee, nor did I think it appropriate. I asked him to drop the lawsuit.

He told me to make him an offer to settle, and I said I’d previously been advised not to settle. At that point, he accused me of extortion, then said, “See you in court — have a nice day.” Click.

The photographer filed a $150,000 lawsuit shortly thereafter.

Incredibly, in the lawsuit, Tylor requests leave of court to amend the complaint so he can also sue unknown John Does who might have read the blog post and thus entered into a “conspiracy” to profit from the image! He filed the lawsuit in California, which is home to Typepad, the blog software we were using in 2010, citing that “critical evidence pertaining to who, when, and in what quantity the image was viewed and downloaded is located” in that state.

I guess that means he wants to subpoena Typepad for records identifying who has read this blog post. Then he wants to investigate them for conspiracy!

* * *

A reverse image search of the photo (“hanauma bay”) shows about 788 sites that offer free downloads of it, on sites such as DesktopNexus and Photobucket.

Weird huh? You’d think a photographer would try to shut down websites that offer his or her photos for free.

A discussion about that took place on ExtortionLetterInfo, a site devoted to the trend of stock photography settlement (“extortion” or “shakedown”) letters. [Editor’s note: The site links to discussions that suggest these images are uploaded to these free wallpaper sites or stay there with the consent of the photographer and his attorneys.]

One business, Aloha Plastic Surgery, received a similar demand letter and countersued.

Although the results of the lawsuit are confidential, word on the street is the principals were happy with the outcome.

* * *

How can you avoid copyright issues?

If you download anything from the Internet, publish online, or even use social media (a blog, Pinterest, Twitter, Facebook) read this article for tips and advice: copypress.com/blog/how-to-avoid-falling-prey-to-copyright-trolls.

If it’s too late and you’ve already been unfairly accused of copyright infringement, don’t panic. It can happen to anyone, and you are not alone.

There is great camaraderie among victims and their advocates on sites like extortion-letter.com and copyright-trolls.com.

Contact your state and federal elected officials and the attorney general and ask for their help. Contact an attorney.

Also check out these grass roots communities for detailed news and information:

Electronic Frontier Foundation

FightCopyrightTrolls

ExtortionLetterInfo

DieTrollDie

Legal Coalition for Copyright Reform

Need to learn more?

• Copyright Chief Urges Congress to Produce ‘Next Great Copyright Act’, from Wired

• “Slaying the Copyright Troll,” a blog post from Pietz Law Firm

• “Lawsuit against first U.S. copyright trolls for extortion ends in victory,” from Raw Story

• “Judge, Siding With Accused Pirate, Orders ‘Copyright Troll’ to Pay Up,” from rt.com.

* * *

Unfortunately, I guess we’re going to court — the last thing on earth any small business can afford to do.

But hopefully we won’t be battling it alone.

An article by Timothy B. Lee in the Washington Post, “How Vermont could save the nation from patent trolls,” tells of how Vermont has emerged as a “hotbed of anti-troll activism.”

It seems our attorney general, William Sorrell, has teamed up with our governor and lawmakers to enact legislation to protect our citizens and businesses from trolls who use extortion as a business model.

I’ll be appealing to all of them for help in fighting trolls. I hope common sense will prevail but you never know. The whole situation is scary.

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Originally published in The Commons issue #259 (Wednesday, June 18, 2014). This story appeared on page C1.

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