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  1. #1
    The affiliate formerly known as ojmoo
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    Angry Hey I'm being sued.
    I'm sure this has been covered before, but I don't want to look for the old discussion and besides maybe a new discussion from scratch couldn't hurt.

    It's the day after xmas I get my mail there is a long envelope from a lawyer I open it up, what's in it someone says they are going to sue me. for copyright infringement. On one of my check sites I have an image of a check I am/was selling that seems to belong to this person. I didn't copy the image to my site, I simply linked to it like all the other images so people could see the check. The site has a product feed although I don't remember if I used it in making my page or simply grabbed the url of the image from their site.

    When I click the link, the page is not a 404 page, but the image url is still up.

    Fortunately my cousin is a copyright lawyer in the music industry, but copyright is copyright so I'm sure this will be resolved without much fuss.

    But, for you guys has this happen to you before? How did you handle it? I assume the original merchant got papers too, shouldn't he/she have contacted the affiliates to remove the image, ow better let remove the graphic form their site so it goes down everywhere? It seems to me, if I was liable to the copyright holder, I could sue the vendor to make it up. Is there be a way to protect yourself from something like this...I mean though who use datafeed with images? There is certainly a presumption that if a vendor have a datafeed full of images of products they have the right to them.

    Finally on a side note, I am being sued as Mike ........, But on my site the only name I use is Michael ....., The URL is registered as Michael ........, My affiliation through SAS is as Michael ......., My email address is oreanges@........ I call myself Mike so is one of you who know me as Mike screwing with me ;-)
    Expert who says Moo

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  3. #2
    OPM/Moderator Hectic GHC's Avatar
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    Holy crap Mikey. Have you contacted the merchant? The manager? This is scary stuff. I don't have an answer for you but this should be the most followed thread on ABW in the next few months. I have no legal advice for you but I'm sure it will turn out all right for you. Just a lot of headaches before it goes away. I hope it doesn't last long.
    Greg Hoffman
    Affiliate Marketing Advocate of the Year 2016; Best OPM/Agency - 2014; Best OPM/Agency, Five Years in a Row - ABestWeb.
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  4. #3
    Affiliate Manager AffiliateWarrior's Avatar
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    Have they requested that you take it down previously? If not, I don't think you necessarily have a ton to work fear. I'd get with your cousin and see if they recommend removal and getting back to them on their letterhead as your counsel letting them know that you have representation. It might just be a shakedown attempt. If you were just using what the merchant provided in good faith, you shouldn't have much to worry about.
    Wade Tonkin - Affiliate Manager - Fanatics
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  5. #4
    The affiliate formerly known as ojmoo
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    Fortunately for me, my cousin is a copyright lawyer (in the music industry but close enough) and he says we won't have a problem, especially since I'm not making money anyway. The actual link to the page with the copyrighted product goes to a 404 page. If they would ave removed the graphic too then I wouldn't have gotten into this mess. I'm mostly over it now, I just wish I didn't get the letter in the mail a day after xmas. Couldn't they wait until January? As I said it should go away quickly...as I have no money.


    No one asked me to remove it at anytime before getting the letter from the lawyer. The letter was a draft requesting a jury trial but it wasn't filed. I think it's just a scare tactic to get some money out of me...not going to happen. My bet a phone call will handle it...but not like I can do anything until monday. My cousin emailed me told me he would call me monday and then we call the lawyer. What makes this so cut and dry in my opinion is that I never downloaded the image to my site (which I do with other sites to make my site move faster when I have multiple merchants) So I'm not violated their copyright, I'm displaying an image I am allowed to display. If my merchant doesn't own the image, sue him not me. I didn't do anything wrong. How am I to know that they didn't own the image to the check they were selling.

    It would have been nice to get a heads up that they were being sued when they took down the product. Then I would have removed the check, afterall it does me no good since it now goes to a 404 page.

    Anyway I still don't understand why I am called Mike on the lawsuit. I mean you all know me as that...those who know me. But it's not the name I sign documents with like signing up with SAS or buying domains etc....I wonder if my offical name on ABW is Mike, I should check.

    Greg: I did email the program manager. The one listed at SAS. It's an inhouse check program, so they have an inhouse affiliate manager. (I hope that didn't give it away which check site caused me this problem) I just asked him is he is the AF of this program and didn't ask anything more. If I get a hold of him, I don't know whether to skirt around the issue first or go right at it.

    As of this moment, I haven't changed anything on my site including removing the image. I want everything to be as it was, so no one can say, well the image was downloaded to my site or that I was using it to create my own checks instead of being an affiliate and other things that I haven't thought about yet. Besides the email explically says that removing the image won't diminish my liability in the matter anyway.

    There was a time when someone asked me to remove an image. That a major prom dress manufacturer who thought I was ripping off their dresses, when I explained I was an affiliate of one of their authorized vendors and that I was promoting their wares that would see though their vendor they didn't have a problem. But this is nothing I never encountered. I have been selling checks for a long time and I always assumed the check merchant owned the copyright to the checks they were selling.

    With any luck it should be resolved tomorrow or tuesday.

    I do guess that this has never happened before. If it had I'm sure two long time industry insiders as you two would have heard of it.
    Expert who says Moo

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  7. #5
    OPM/Moderator Hectic GHC's Avatar
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    Quote Originally Posted by oranges View Post
    Greg: I did email the program manager. The one listed at SAS. It's an inhouse check program, so they have an inhouse affiliate manager. (I hope that didn't give it away which check site caused me this problem) I just asked him is he is the AF of this program and didn't ask anything more. If I get a hold of him, I don't know whether to skirt around the issue first or go right at it.
    You go after the manager. Don't let this slide. Be upfront. Be bold. Tell them how they dropped the ball and they need to make it right. Then drop all their products and join me on the dark side. Kidding. I would totally let you out the name of the merchant and the manager. No Mercy!
    Greg Hoffman
    Affiliate Marketing Advocate of the Year 2016; Best OPM/Agency - 2014; Best OPM/Agency, Five Years in a Row - ABestWeb.
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  8. #6
    Beachy Bill's Avatar
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    Quote Originally Posted by Hectic GHC View Post
    ......I would totally let you out the name of the merchant and the manager.......
    Agreed. Might save some other affiliates a good bit of stress and/or legal fees.
    Bill / Marketing Blog @ 12PM - Current project: Resurrecting my "baby" at South Baltimore..
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    If you are too busy to laugh you are too busy.

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  10. #7
    The affiliate formerly known as ojmoo
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    My cousin (lawyer) told me to phone their lawyer and tell them what I do and now the image got on my site. My cousin said it was best if I called so that the lawyer wouldn't think I had a lot of money (or was worried about this)...to get a lawyer :-) So I phoned them up and tried to explain what affiliate marketing is. I told them the image was never stored on my site. I told them who actually sold the checks, the domain name anyway. I told them I would agree to help them if they wanted to go after the other guy. She said she would look into the matter and get back to me.

    Anyway this is going to drag into next year, but it should go away eventually
    Expert who says Moo

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  11. #8
    ABW Ambassador isellstuff's Avatar
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    I get take down requests from lawyers all the time based on the image urls in datafeeds. They seem to always assume that I'm selling something and they are always more concerned with removing any trace of their content from the Internet, aside from the copy on their website. I just delete the content from my site, let the know, and move on. They are always doing bulk e-mails to 100's if not 1,000's of websites, so yeah, scare tactics designed to get you to take action. I just do what ever they want and move on.
    Merchants, any data you provide to Google Shopping should also be in your affiliate network datafeed. More data means more sales!

  12. #9
    The affiliate formerly known as ojmoo
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    isellstuff: This wasn't an email. It was a letter in a legal sized envelop with 8 pages that included a draft of a law suit, everything spelled out, nicely written describing me as the defendant, naming the plaintiff and it starts

    <name of plainiff>, by and through her undersigned counsel, states and alleges as follows: then goes on through 30 listed paragraphs by number then on the page 5 says "REQUEST FOR JURY TRIAL"

    Only after all that, is there a 2 page letter asking me to phone them and prove that I have rights to the image in question. Finally on page 8 is a screen shot of my site with the offending image circled.

    Also in the letter it says in bold "Please note that simply ceasing to use the copyrighted material does not absolve you of the responsibility to pay for the material you have already used without a license."

    I wish I could scan the entire document and post it here, but I don't think that is a good idea, but let me tell you isellstuff, a simple email would have been sufficient to have me remove the image...it points to a 404 now anyway, not that I knew that before checking.

    Does this sound a little more serious than a bulk email request that I remove an image from my site.
    Expert who says Moo

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  14. #10
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    It sounds fishy to me.

    I don't know how things work where you are, but in my jurisdiction a document is not legal unless it is formally served. If not, was your letter at least registered? If it came regular mail, how would the legal system even have confirmation you received it? It may have gotten lost in the mail for all they know.

    Even for something as simple as small claims court, a plaintiff has to go to the local court house, pay a certain amount of dollars for a name search, get the proper complete name under which the company is registered, and then the case can proceed. The fact they haven't used your proper name makes me suspicious. And mentioning a case by jury makes my BS detectors go off even more. Unless a case involves millions, or is some class-action lawsuit, trials by jury are not necessary. Small disputes are usually handled by having the two parties and a judge in a private room sitting around a table. If it escalates, then it might proceed to jury. The court system is already bogged down; they are not going to go through the time, trouble, and expense of a jury trial if they can avoid it.

    I mean, even if you had images of well-known copyrighted material like, say, "The Simpsons", all over your website, the lawyers for Fox send "Cease and Desist" letters first. Going straight to suing a person is extreme. It is not worthwhile. The letters may seem authentic, but I am wondering if maybe somebody is pulling a scam. Once the letter is written, photocopying it 1000 times and changing names is easy. Who knows how many other people may have received letters like this one.

    In any case, keep asking questions and talking to people about this matter.
    1) Contact the plaintiff company. If they have no idea this is going on, you know somebody is pulling a scam. If it is real, try to clear it up.
    2) Contact the program manager and affiliate manager and let them know what is going on. The more people who know, the better. They might decide the negative publicity is not worth it, and see how they can help you.
    3) Go down to the courthouse and confirm the location and time. Again, you may find out it is a hoax. You may be informed many other people have received similar letters. Talk to as many people as possible and get as much info as possible.

    If all else fails, and the case is real and you still end up in court, people know you aren't going to take this lying down.
    Last edited by Thess; December 31st, 2015 at 09:52 PM.

  15. #11
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    A recent case, Lenz v Universal (September 14, 2015, US Ninth Circuit Court of Appeals), has held that things may not be so clear cut, that the holder of a copyright needs to make sure that the offending site is not making "Fair Use" before demanding that it be taken down or filing a lawsuit.

    Per NPR's Laura Sydell "The case is significant because critics say copyright owners like Universal abuse the take down process often at the expense of free expression."

    How this relates to commercial use is not as clear, however.

    ***

    Thess, you need to stop trying to practice law. Oranges clearly stated that this was an unfiled draft of a lawsuit, clearly meant to scare and intimidate (which could be a violation of state bar ethics rules). And if it had been filed, you cannot serve a complaint by mail, registered or otherwise (unless under very specific circumstances where mailing is an additional requirement for some form of substituted service, according to the specifics of state law or in the case of federal courts, the Federal Rules of Civil Procedure).

    And, you cannot do a name search at a court house, period. If you are talking about a dba, then that is done at the County Clerk's office, if a corporation, then the state department of corporations, and for an individual, well good luck with that one, as there are no such databases, period., only such things as DMV records, if the particular state allows searches (most do not) or voter registration records, which can be accessed in only very limited ways by specific organizations, such as political parties and organizations.

    I would have to assume that the draft lawsuit was in federal district court, and federal rules REQUIRE that a demand for jury be filed and served WITH the complaint, or it is fore ever waived. Thus, it is standard practice, even if the plaintiff really does not intend to proceed with a jury trial, to include that document at the time the complaint is filed and served.

    "Unless a case involves millions, or is some class-action lawsuit, trials by jury are not necessary." - Absolutely and totally incorrect. In every injury case and 95% of general damage cases, virtually without exception, the plaintiff will believe a jury is necessary. But that is irrelevant in the majority of such cases where the defendant has insurance for the claim and has been provided a defense and counsel by the carrier. Insurance carriers will demand and proceed with a jury in virtually every such damage case trial.

    "Contact the plaintiff company. If they have no idea this is going on, you know somebody is pulling a scam." - again totally untrue. A determination to sue someone is not generally shared with lower low employees. Someone you get on the telephone will likely have no idea what is being done at higher levels in the company.

    "Go down to the courthouse and confirm the location and time." ?? Time and location? Of what? Make sure you've go the correct courthouse. If the aggrieved party resides in, say Iowa, they may well have the legal right to file their case there.

    I could go on; maybe later.
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  17. #12
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    Phil above just nailed it in significantly better terms than I ever could. I would say that you first need to look at the terms and conditions of the affiliate program, which I assume you have access to, and determine what their responsibility is to the copyright of the creatives on their site. Many programs state that they have the responsibility to ensure that their representation is legal. Then follow up with the affiliate manager and make them aware of the issue.

    As Phil said, there is a lot going on here. Take it one step at a time.

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