The Dreaded Copyright Infringement Notice

Image courtesy of Markus Winkler on Unsplash (Yes, this freely usable, in case you were wondering)

There is genuine misuse of images online, but 9 times out of 10, it’s just an honest mistake and the threatening notice comes from a copyright troll.

Talk to any blogger or small business owner who blogs and they will tell you they’ve received a copyright infringement notice. This is because bloggers often use images from free image sites, or Wikipedia that often have cryptic citations that you may not have read carefully. Sometimes it’s from years ago, from a blog you don’t even host anymore, but it is still accessible on the Internet Archive, aka the Wayback Machine – you’d be amazed some of the stuff there. These annoying copyright notices are common, but usually it’s just a shakedown from a copyright troll, so before you call a lawyer, here’s what to do about it.

Do Your Research

First of all, don’t ignore it. Take time to check the sender, the links provided, and any other sources they provide. Search on google for the people, organizations, and businesses mentioned in the notice – if they come up with numerous complaints then you know you’re dealing with a troll. Now sometimes, the notice will come from a legitimate law firm, and they may seem to have a legitimate case, but the way to approach it, is still the same.

Before we start, it’s important to understand why these copyright notices are even a thing. Legitimate law firms represent artists who have a right to compensation. If they believe you have misused their art, and are responsible for paying the artist back, then they will send these notices. However, how much they recover, and how much the artists receives, is usually a balance with how much it costs to recover it in the first place. Law firms charge by time, so if the process will take a long time, it may no longer be worth it for them to continue pursuing it. This can be to your advantage, if you know how to respond.

Trolls have a very different motivation. Sometimes, they put out images on free sites with the express purpose of ensnaring users of those images. Other times, they have no connection to the original artist at all, and they are just trying to shake you down. And sometimes, the whole process is just created with an AI and is just an automated set of back-and-forth steps designed to weaken your resolve to make you pay for something you truly believe you had access to. The important thing with trolls is that time is not always a big deal for them and they can drag it out for a long time at minimal cost. This information is also useful for you.

Don’t Pay the Ferryman

After you’ve done your research, it’s time to respond – not to their automatic payment portal, but to the return address or email. Often, you may never hear anything more after that. You will already have scared them off. The sad reality is that many people just pay through the portal and that is what the trolls hope for. Unfortunately, if they are truly evil, that will tell them they can probably get more out of you and they’ll send more notices. So whatever you do, don’t pay through the portal!

Always Stay Courteous and Polite

Instead, you will send a polite message asking them for clarification. If anything in the original notice wasn’t clear, this is your opportunity to respond. Now, if you receive a response in seconds, then you know you’re dealing with an automated process, ie. a troll. However, if you receive a detailed response several hours later or a few days later, then you are likely dealing with a human being, possibly at a legitimate law firm.

One important note about your response. Make it as short as possible. Don’t try to explain yourself, just ask one simple question, like: “What does this term mean?” Doing this should weed out the majority of trolls, and if it’s a legitimate law firm, it will cost them time. The reason you want this to be short, is because a legitimate law firm will parse out anything you say that may be useful in their case, so you want to give them as little as possible.

It’s All About Time

Make a careful note of the urgency presented in the notice and response. At this stage, a legitimate law firm will see this as marginally urgent. They may include a repetition that they need a timely response, but they aren’t pressing for that yet. On the other hand, a troll response will likely include very aggressive language and urgency.

Also, make a note of any spelling and grammar errors. A legitimate law firm won’t make any such errors, and troll is likely to. This might also be a good time to pass the letters through an AI checker like GPTZero and see if this was an auto-generated response. A legitimate law firm typically won’t do that.

Now if it is AI generated, this provides an opportunity for another response from you: send another polite message telling them that their response was AI generated and that as a matter of policy, you see that as problematic. Don’t say anything definite like you are now stopping all communications. Just say that this is problematic. A legitimate law firm will then respond with an explanation or restatement of the original letter that will definitely not be AI generated. A troll, on the other hand, will respond with more aggressive language, threatening deadlines, and likely another AI generated response.

As you go through these steps, it will become increasingly clear if you are dealing with a troll. This means that you can stop responding at any time after you determine that. They might continue to send a few more notices, but eventually it will stop and you’ll be done. However, if you are dealing with a legitimate law firm, or a very capable troll, you’ll need to continue the process.

If the responses continue in a polite and orderly manner, you are dealing with a more serious person or organization – either a legitimate law firm, or a determined troll who’s done this before. So, once you’ve exhausted all the clarification questions you can think of from their emails, it’s time to step up to the actual content.

You Need Proof!

At this point, you need to ask for their right to represent the original artist. Ask for proof of representation, or proof of ownership. This is where most trolls will balk because they can’t produce it, or they will produce something that is obviously fake. When you receive the “proof” study it carefully for anything that may be suspicious.

If there is something off about the proof, then you have another opportunity to ask for more clarification. If you see more than one problem, raise the first and least obvious detail about this document, wait for a response, ask for more clarification on that specific issue if you can, and only them move onto the next issue. The goal here is to extend the timeline.

Trolls will become exacerbated with this, while law firms will need to consider the ROI of continuing the process. This is typically when they start reminding you of deadlines they initially imposed. Trolls by this point will just start to sound repetitive and more belligerent.

Make Them Prove Their Smarts

Once you have exhausted all possible issues with their proof. It’s time to challenge their knowledge of the art they claim to represent. Tell them that the image you used is not the same as the one they claim to have rights over. Now, if the image is completely identical, then you may not have as many back-and-forth options here, but it will still provide more opportunity to extend the timeline. A legitimate law firm will likely struggle here – they’re law firms, not forensic experts.

However, most people always crop, re-compress, stretch, or change the resolution on images, just because they need to do this for their uses, and most free image sites allow this. I do this as well. So, the image they claim to have an original of, will likely not be identical – at the very least it will be a bite or two different in size or at least one pixel off. This poses a problem for them. They claim to have rights to an image, not the likeness of that image.

Again, this is an opportunity to go back to what their original proof of ownership document specifically states. You can go back and forth quite a few more times over the original document here. If not, just stick to your guns and insist that the image that you used is different from the one from the artists they claim to represent.

All this back-and-forth will force the legitimate law firm to recalculate their ROI on this case. They may just decide to bow out at this point. I have seldom had a law firm continue past this point. That said, I was prepared for the next steps.

Getting Serious

Let’s assume that they have all their ducks in a row and they continue pressing you. Let’s also assume that we are no longer dealing with a troll, and that this is likely a legitimate law firm. This is where it now gets serious. I still think there is more back-and-forth possible at this stage, but YMMV.

For example, this is where I would start with redirecting the law firm to the original source of the image. If you acquired it from Wikipedia, Pexels, Unsplash, Pixabay, or some other free image site, then explain to them that they are the real infringing party. This carries extra weight if the image is still there for others to download freely.

It’s not a strong argument, but it will provide more back-and-forth opportunities. When they insist you are still responsible, ask them to provide legal language that this is indeed the case. If you were still dealing with a common troll, this is where you would finally lose them. A legitimate law firm can provide this fairly easily, but not without more back-and-forth, and consequently more expense for them.

You can extend this new discussion by sending them copy-paste excerpts from the right-usage pages from the original free image site and ask them to explain how their legal documents supersede the language on the site. When they do, tell them you’re not a lawyer and that you need it in plain English. Tell them to clarify things you don’t understand, and keep this going for as long as you can.

If the image is no longer available on the original free image site, tell them that because of that fact, this is no longer a legitimate claim. Of course, they’ll tell you that there is no time limit on copyright infringements, which is true, but it will probably be more legalese. So, you’ll need this in plain English too …with clarifications.

Time to Call in the Allies

• If they are still hanging onto their claim after all this time, then you need to bring in some help. This is when you seek assistance. Here are some organizations that will offer assistance and powerful resources:

• The Electronic Frontier Foundation (EFF)
  https://www.eff.org/issues/copyright-trolls
  They have resources about which steps you should take next and also a large database of known copyright trolls.

• Creator Assistance Directory
  https://copyrightalliance.org/resources/creator-assistance-directory/
  This is a list of expert volunteer lawyers who specialize in copyright troll cases.

• Copyright Claims Board Pro Bono Assistance
  https://ccb.gov/pro-bono-assistance/
  This is another list of organizations, law firms, and individuals who can assist.

• Volunteer Lawyers for the Arts
  https://vlany.org/
  They are based in New York, but they have quite a bit of experience dealing with trolls.

• Law School Clinics
  Believe it or not, law students need practice too. Check with local law schools and see if any students there are available to assist you with your specific case.

• Fight Copyright Trolls
  https://FightCopyrightTrolls.com
  This is a blog that covers recent cases involving copyright trolls. There are some very knowledgeable writers here and valuable information.

But what if the allies don’t save the day?

Whenever you need to ask for assistance, you are then at the mercy of those who provide it. I get it. People are busy. The sad fact is that copyright trolls are a plague and there are only so many cases they can pursue. So what do you do then? Well, you are not out for the count yet.

Feign Ignorance or Claim Hardship

This is where you’ll need to get creative. Stay polite and firm, but let the legitimate law firm know that you really had no idea that this was copyrighted. Say that the website where you found the image didn’t have clear instructions. Tell them that you will take the image down, that you’ll never do it again and that you want to resolve this amicably.

If that fails, then tell them that are not a big fish, and that they really should go after the free image website – yes, I know you’ve already mentioned this, but it never hurts to say it again. Tell them you have limited resources, you are just a small operation, you’re a non-profit... trying to do good, you are really broke, and that you can’t possibly pay the fines. If you have a disability, mention that too.

Now if this was still a troll (unlikely, but perhaps), then they will likely offer a lower cost option at this stage. A legitimate law firm won’t. The latter will believe they’ve finally broken you down and insist on the full amount. They may even up the fines because it’s taken this long – that, by the way, is not legally permissible unless they said they would do that from the beginning. If so, then you have more opportunity to extend this out into the future with more discussion. Remember, even now, the legitimate law firm is having to cover costs.

They haven’t broken you though. You just need them to think so. If they insist on payment, tell them that you can’t afford it. This is when they’ll offer various ways to pay it in installments – law firms being expensive, this is always an option for them. Of course, the payments will need to be online…

Distrust the Process

(Note: The next steps involve delaying or avoiding payment altogether, which may or may not be legal. I am not giving legal advice, I am only suggesting how you might proceed. What you do from here on is your own decision and I cannot be legally responsible for any of it.)

At this point, the assumption is that you were indeed partially at fault, that you could not demonstrate that you had a legitimate right to use the image, and that the legitimate law firm has made a convincing case. It is time to consider making actual payment.

This is when you explain that you never pay for anything online. You don’t trust online payments. Then they’ll say they will invoice you by mail and ask for your mailing address if they don’t have it already. If they don’t, then don’t give it to them. Tell them that you don’t give that out. Again, you’re just a small, poor, vulnerable operation, remember? You don’t operate like that. Tell them that you will only meet with someone locally to hand deliver a check. They will balk at that. Whether you pay online or in person the next steps are similar.

They will likely ask you to arrange for a payment transfer through your bank. Tell them OK, but you’ve never done this. When they give you the transfer info, you might not get all the info correctly. More opportunity to extend the process with more back-and-forth. Take your time responding.

Again, every delay costs them more money. The longer it takes, the more likely they are to give up, which is your goal. Find every excuse not to pay, but eventually you may have to, so make that process as painfully slow as you can too.

Actual Payment

When/if you do send payment, send a single dollar. When they complain, tell them you must have made a mistake. Ask for a new total minus what you already sent them. If anything is off about the amounts or other info on that document, question that too.

Send another single dollar. When they complain again, tell them you were just confirming that it worked and that you were familiarizing yourself with the process. You might mention that this was fun and you’re learning a lot. Thank them for this. Then ask for a new total. Then question it.

This time send a smaller amount than requested. When they complain again, tell them that was all you had in the account. You had already told them you would have trouble paying. Ask for another total. Question it also. Rinse, lather repeat.

This time send a much smaller amount than requested. When they complain this time, tell them that is all you had to give this time. Times have been tough for you and you just didn’t have more to give. Ask for another total. Question it.

Again, send a smaller amount. Tell them that now you lost track of the amount owed and that all the amounts no longer add up properly. This is becoming too complicated for you. Ask for a full accounting of what was received, dates, times, and amounts. Dispute the amounts and dates. Ask for another final total. Pay less, and repeat one more time. Ask for another total.

This is about when you should insist on a lower total than what is owed. The reason is that the law firm may start to believe that you’ll never pay it all at this rate or that it will take far too long. If they lower the total (or the next installment total), you may be breaking them down. Even if they don’t give you a smaller total, send another lower payment than requested. Ask for another total. Question it.

This might be a good time to take a break from the whole process. Let a few more letters/invoices come and don’t respond. After a few more, respond again saying you are back from vacation, had an illness, or whatever. Don’t send any payment, just let them know you are back and wait for a response. Then ask for another total. Question it.

When they send another invoice, again send less than requested. Keep doing this. Use the same excuses as before. The hope is that you will wear them down. For them, the only alternative is to take you to court, but for such a small amount, that’s unlikely. They’ll also need to do that somewhere where you can actually travel to that courthouse, so if they are from out-of-state, that’s more expense for them.

Now even by dragging this out as long as you can, you may at some point have to pay all the fines owed, but that is unlikely. Any copyright troll will have given up long ago, while the legitimate law firm will not see a ROI in pursuing it this far. They will give up.

At some point, they will send a letter saying they will not pursue it further and the matter is closed. Take that letter, frame it, and hang it in your office.

Congratulations, you’ve won!

…And no one likes a troll!
Image courtesy of Eleanor Smith on Pixabay.