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  1. #1
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    17:101 Copyright Infringement
    A little over a week ago I received a letter from a lawyer in California offering to represent me in a copyright infringement case filed against me. I researched online and found the case filed in California Northern District Court against me and the publisher I am affiliated with. I immediately removed all of the product links for that program from my website. I sent e-mails to the affiliate program and to LinkShare. The affiliate program manager replied that they know nothing about the case and that they sent my e-mail up to "executive staff"; after 2 phone calls and 3 e-mails. No reply from "executive staff."

    I never received a phone call, voice mail, e-mail, letter, or any other kind of contact from photographer asking me to remove the alleged modified images from my website. My phone number and a contact link are clearly posted on every single page that I publish; my domain registration is freely available with all of my contact information. I have 3 years worth of e-mail from the publisher and 8 months of spam stored on my server and none of it contains anything asking me to remove these images from my site.

    On Tuesday I was served with an official copy of the lawsuit; it is about 4" thick. I reached out to the lawyer for the plaintiff in the case and sent them all of the information about the affiliate program and LinkShare; but I haven't received a response yet.

    I just received a reply from legal at LinkShare and they said there is nothing they can do about a publisher filing a case against an affiliate. Apparently they didn't read the case page very well which states:
    Plaintiff: Photographer
    Defendant: company dba publisher AND affiliate dba affiliateswebsite

    The images are being shown by this publisher on all of the big name sites too; sites that offer products for sale by other companies. You know the ones that say "This product sold and shipped by publisher."

    As a side note, I have been involved in affiliate marketing for about 18 years, and have never had a problem before this.

    Are affiliates now going to be held responsible for publishers alleged copyright infringement?

  2. #2
    ...and a Pirate's heart. Convergence's Avatar
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    Am confused:

    1) are you an affiliate or a merchant?
    2) where did you get the photographer's image/s?
    Salty kisses, Sandy toes, and a Pirate's heart...

  3. #3
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    1.) I am an affiliate. I am a member of the publishers program on LinkShare.
    2.) The images were loaded onto my website via the publishers LinkShare database links.

  4. #4
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    Looks like a photographer is suing you. And you talk about other publishers having the same image(s). So you must be an affiliate. Where are the images hosted. Is the affiliate pgm through a network like CJ, SAS.

    NM.. you already answered my questions.

  5. #5
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    Quote Originally Posted by weblady View Post
    1.) I am an affiliate. I am a member of the publishers program on LinkShare.
    2.) The images were loaded onto my website via the publishers LinkShare database links.
    It's really scary that a lawsuit has already been filed. And we all use images from the feeds. Have you contacted LinkShare.

  6. #6
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    "I just received a reply from legal at LinkShare and they said there is nothing they can do about a PUBLISHER filing a case against an AFFILIATE. Apparently they didn't read the case page very well which states:
    Plaintiff: Photographer
    Defendant: company dba publisher AND affiliate dba affiliateswebsite"
    Last edited by weblady; May 24th, 2014 at 01:07 PM. Reason: quote from original post

  7. #7
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    The images are hosted on the publisher website and have never been hosted on the affiliate website. They were loaded with the typical database image links:

    src="http://cache.PublishersWebsite.com/images/NameOfImage.jpg"

  8. #8
    ...and a Pirate's heart. Convergence's Avatar
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    OK, for starters:

    YOU are the affiliate/publisher

    You belong to an affiliate program from a MERCHANT.

    This is what is making this thread so hard to follow.

    That being said:

    You are an affiliate of a program in which the merchant is using copyrighted images/images without permission in their datafeed and/or creatives offered to affiliates. Correct?
    Salty kisses, Sandy toes, and a Pirate's heart...

  9. #9
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    yes, or at least the Merchant/publisher is being accused of such. They are being accused of removing the photographers signature from the images. They are also being accused of distributing said images. All of those accusations have then been placed on me as a co-defendant in the case.

  10. #10
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Hi weblady, sorry to see this happening.

    First, please stop referring to the merchant as a "publisher" - that is still confusing the issue. The merchant is the advertiser, and as Convergence said, you (as are all affiliates) are the "publisher".

    Second, please tell us who the merchant is. This is a very serious situation, and it is important that other affiliates (publishers) know who this is so that they ("we"?) may remove the images from their ("our"?) sites.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
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  11. #11
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    Where did you get the images from. Were they from the ls datafeed or banners.

  12. #12
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    I'm sorry about the terminology.

    I'll edit the post above to correct it.

    The images are from the datafeed links.

    I do not want to post the name of the accused merchant and be accused of slander next.

    What I am worried about is this case setting a precedent, what would follow is all affiliates being accused of copyright infringement where ever the merchant is accused of copyright infringement. So many of us use the datafeeds to easily create product links on our websites.

    What am I supposed to do aside from what I have already done and remove the images from my website?

  13. #13
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    17:101 Copyright Infringement (edited)
    Corrected:
    A little over a week ago I received a letter from a lawyer in California offering to represent me in a copyright infringement case filed against me. I researched online and found the case filed in California Northern District Court against me and the Merchant I am affiliated with. I immediately removed all of the product links for that program from my website. I sent e-mails to the merchant program and to LinkShare. The merchants affiliate program manager replied that they know nothing about the case and that they sent my e-mail up to "executive staff"; after 2 phone calls and 3 e-mails. No reply from "executive staff."

    I never received a phone call, voice mail, e-mail, letter, or any other kind of contact from photographer asking me to remove the alleged modified images from my website. My phone number and a contact link are clearly posted on every single page that I publish; my domain registration is freely available with all of my contact information. I have 3 years worth of e-mail from the merchant and 8 months of spam stored on my server and none of it contains anything asking me to remove these images from my site.

    On Tuesday I was served with an official copy of the lawsuit; it is about 4" thick. I reached out to the lawyer for the plaintiff in the case and sent them all of the information about the merchants affiliate program and LinkShare; but I haven't received a response yet.

    I just received a reply from legal at LinkShare and they said there is nothing they can do about a merchant filing a case against an affiliate. Apparently they didn't read the case page very well which states:
    Plaintiff: Photographer
    Defendant: company dba merchant AND affiliate dba affiliateswebsite

    The images are being shown by this merchant on all of the big name sites too; sites that offer products for sale by other companies. You know the ones that say "This product sold and shipped by merchant."

    As a side note, I have been involved in affiliate marketing for about 18 years, and have never had a problem before this.

    Are affiliates now going to be held responsible for merchants alleged copyright infringement?

  14. #14
    Moderator leeann's Avatar
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    The image isn't on your server. I don't know how they could hold you responsible. It's distributed via a database by the merchant through Linkshare's interface. Seems to me, before you are sued, the lawyers/artist would go after the main distribution point if they are serious about stopping the problem.

    Also, it is very unusual that they never sent out a certified cease and desist letter or DMCA takedown notice.

    It could also all be a scam since it doesn't seem that they are following the logical sequence of getting the issue resolved.

    As far as LS goes - it seems they would hold more accountability for this than you, regardless of what their legal jargon might say. Of course it is the merchant who is the most accountable if what the photographer is saying is true.

    As long as you didn't download the image, alter it, and load it onto your server, I wouldn't worry.
    leeann


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  15. #15
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Unfortunately, there is a lawsuit filed in Federal Court and you have to take action.

    Unless the plaintiff can be made to understand your lack of liability and dismisses you from the lawsuit, you MUST hire an attorney and file a Answer with the court, in a timely manner. Otherwise, they will have the right to file a default against you and obtain a judgement.

    This is a VERY serious matter and regardless of the legal liability involved, you will have to pay attorneys fees and court costs up front to protect yourself.

    weblady, if you can answer the questions I pm'd you I can provide a bit more information.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
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  16. #16
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    As long as you didn't download the image, alter it, and load it onto your server, I wouldn't worry.
    That's the stance I would take, too. But you may have to defend that stance in court. Hopefully your business insurance will cover that cost of that defense.

    On another note, I doubt "if they are serious about stopping the problem." It seems more like a money-grab to me; similar to the Getty Images "style" of extortion letters. Hunting and suing for misuse of copyrighted images may, indeed, be more lucrative than the actual sales of some photographers' works.
    Bill / Marketing Blog @ 12PM - Current project: Resurrecting my "baby" at South Baltimore..
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  17. #17
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    Yes, but it is a real case. I have the full documentation here and I can send you the government website showing when the case was filed.

    I am hoping that I will be removed from the case due to my relationship with LS, that the images were not on my server, and that I removed all of them as soon as I caught wind of the case.

    As I mentioned I had no knowledge of the problem until I got that letter from a lawyer out in California offering to represent me.

  18. #18
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    If you do have business insurance, then contact them immediately, if you have not already done so, and send them a copy of the complaint, certified mail, return receipt requested, with a cover letter telling them the date on which you were served and telling them to defend your interests pursuant to your policy coverage.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
    "Raj, there’s no place for truth on the internet." -Howard Wolowitz[/SIZE]

  19. #19
    Moderator leeann's Avatar
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    Quote Originally Posted by Bill View Post
    That's the stance I would take, too. But you may have to defend that stance in court. Hopefully your business insurance will cover that cost of that defense.

    On another note, I doubt "if they are serious about stopping the problem." It seems more like a money-grab to me; similar to the Getty Images "style" of extortion letters. Hunting and suing for misuse of copyrighted images may, indeed, be more lucrative than the actual sales of some photographers' works.
    I agree Bill. It is also probably going to cost her money. Imagine if we all sued people (I mean the real culprits) who used our content w/o permission. The court system wouldn't be able to handle it.
    leeann


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  20. #20
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    Sorry, no business insurance. I am small time and I didn't think that I was open to any type of lawsuit. I do not actually sell any product; everything is through affiliate programs. I have a disclaimer at the bottom of each of my pages stating that I am not responsible for the moral integrity of merchants on my site etc.. I've always been notified and removed any "offensive" material from my site when asked.. once I removed "Egyptian Kitty Astrology" because a client didn't consider it Christian ..

    Whenever I have used anothers graphics I have placed a thank you and a link to their website after asking permission to use the graphics; like creating a new logo for one of my sites. I even purchased the fonts that I used to create the logo for another site.

    After 18 years in the business...

    I believe I am going to answer it on my own. "pro se" without an attorney.

  21. #21
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Quote Originally Posted by sam_park View Post
    I believe I am going to answer it on my own. "pro se" without an attorney.
    See my last PM.

    If you do represent yourself, you will have to follow federal procedure and the assigned judges' individual rules. Such federal procedural rules are ominous, imposing strict filing requirements and formats for numerous documents, strict deadlines, and you will be required to appear at numerous court hearings, in San Jose, CA where the case is filed. Any failures to follow such rules to the letter can lead to significant sanctions from the court.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
    "Raj, there’s no place for truth on the internet." -Howard Wolowitz[/SIZE]

  22. #22
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    One more matter of extreme importance. At the time of the filing of your answer you will absolutely need to file a cross complaint against the merchant for indemnification. They would ultimately be responsible to repay you for any damages that could be assessed against you and quite likely to repay you for your attorneys fees and costs.*
    ____
    *This is not to be considered legal advise, but rather a general statement relating to general legal principles. For a legal opinion that pertains specifically to your case, please consult an attorney of your choice.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
    "Raj, there’s no place for truth on the internet." -Howard Wolowitz[/SIZE]

  23. #23
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    oh yes, I understand. I am hoping that the plaintiff's attorney will convince them to just drop the case against me.

  24. #24
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    AffiliateHound - This is a very scary and serious situation that other affiliates should be aware of. You might want to make this a Featured thread.

    It would also be nice if LS and the merchant involved would alert affiliates to remove the image/images in question or would that be seen as an admission of guilt?
    Last edited by msladybug; May 24th, 2014 at 04:15 PM. Reason: Added last comment

  25. #25
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Quote Originally Posted by weblady View Post
    oh yes, I understand. I am hoping that the plaintiff's attorney will convince them to just drop the case against me.
    I would not count on that.

    BUT - this might be the best way to go: Make a written demand on the merchant that their attorney also defend you at their expense. If they realize that they are ultimately responsible for any damages and costs that you may suffer, they may be willing to do that.*
    ____
    *This is not to be considered legal advise, but rather a general statement relating to general legal principles. For a legal opinion that pertains specifically to your case, please consult an attorney of your choice.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
    "Raj, there’s no place for truth on the internet." -Howard Wolowitz[/SIZE]

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