Under the DMCA, links to copyrighted materials are also considered
unauthorized use. So, you still have to take it down. Your only other option,
if you can't work things out with Mary, is to file the counter claim as
described in my notice to you earlier. That will result in the link being
removed for 10 days, but will force the complaining party to file a suit to
pursue this matter further. The danger there being of course, that if they do
file suit and win, you will be responsible for their court fees.
So, I must advise you to work this issue out, or remove the link from your
site. We do not cherish shutting down access for our customers, but we must
follow the law.
Chris Carter pair Networks
pair Networks' Abuse Dept.
Statement of Policy: http://www.pair.com/pair/policies/abuse.html
>Date: Wed, 17 Jul 2002 16:30:02 -0400
>From: Curt Cloninger <[email protected]>
>Subject: Re: [T7U9S2W] Unauthorized Use
>Mary and I have been in dialogue about this issue over the last
>several days. The image in quesiton is not hosted on my site, nor
>is it stored on pair's server. I'm merely linking to the image from
>a page on my site.
>The image itself resides here:
>The page on my site that links it is here:
>Mary was not able to track down the creator of the image to even
>discover whether he has a license or not. He may yet have a licence.
>Even if he doesn't have a licence, my site is a non-profit
>collaborative art project. No money is being made off of this
>image, and its use is probably fair in this context.
>Below, Mary requests "that you remove… the photographic files from
>your server." The photographic files do not reside on your server.
>I have enjoyed fair and reasonable hosting service from pair
>networks over the last four years. I am a web designer who has used
>pair networks to host my client's sites, and I hope to be able to
>continue to recommend your services to future clients. If you
>remove my site due to this one instance of corporate saber rattling,
>that will be truly unfortulate.
>Please get back to me before the three days is up.
>>Hello, this is Chris Carter from pair Networks, Inc. Abuse dept.
>>Recently, we have received the notice below regarding illegal use of
>>registered trademarks or copyrighted materials on your web site hosted
>>with our services. Use of copyrighted materials or trademarks without
>>permission is illegal, and as such is grounds for immediate termination of
>>your services with pair Networks as per our posted policies in our service
>>contract at http://support.pair.com/pair/policies/contract.html. If these
>>materials are not removed within the next 3 business days, we will have no
>>choice but to forcibly remove service to the pages in question.
>>Once removed, these pages can only be reactivated if the offending
>>material has been removed, or if a counter claim is filed in your defense.
>>Such a claim must include all of the following:
>>* Your physical or electronic signature.
>>* Identification of the material removed or to which access has been
>>disabled and the location at which the material appeared before it was
>>removed or access to it was disabled.
>>* A statement under penalty of perjury of a good faith belief that the
>>material was removed or disabled as a result of mistake or
>>misidentification of the material to be removed or disabled.
>>* Your name, address, and telephone number at which you can be reached, or
>>legal office at which notice can be served.
>>* A statement that you consent to the jurisdiction of Federal District
>>Court for the judicial district in which the address above is located, or
>>if your address is outside of the United States, that of the judicial
>>district in which pair Networks, Inc. may by found, and that you will
>>accept service of process from the person who provided notification or an
>>agent of such person.
>>Once this is received, your services will be re-enabled after 10 business
>>days. During this time, the person who provided notice of infringement or
>>their agents may file an action seeking a court order to restrain further
>>use of the infringing materials. If they do such, access to these
>>materials will remain disabled until such time as a court order is issued
>>releasing these materials.
>>Please be aware that by sending this counter claim, you accept that this
>>matter may be settled in a court of law, and that if you are found guilty
>>of the claims given, will be responsible for any legal fees and damages
>>caused the complaining party by your use of these materials, and decision
>>to escalate this matter to be settled by the courts if desired by the
>>Pair Networks, Inc. abides by the procedures given in the Digital
>>Millennium Copyright Act for the handling of claims of copyright
>>infringement against our customers. As such, pair Networks, Inc. cannot
>>be held liable for any damages, losses, or legal fees resulting in the
>>removal of these materials. If the original claim was mistaken or
>>invalid, then the party issuing this claim in the notice below can be held
>>liable for any damages, loss, or legal fees resulting from this notice to
>>yourself, and to pair Networks, Inc. Contact information for this party
>>is included in the notice below.
>>If you have any questions regarding this procedure, please let us know.
>> > <<PairNet.doc>>
>> > Mary Walsh
>> > License Compliance Specialist
>> > Getty Images
>> > 122 South Michigan Avenue, Suite 900
>> > Chicago IL, 60603
>> > 312-344-4223
>> > 312-341-9636 fax
>> > www.gettyimages.com
>> > [email protected]
>> > =======================================================
>> > This email and its contents are confidential. If you
>> > are not the intended recipient, please do not disclose
>> > or use the information within this email or its
>> > attachments. If you have received this email in error,
>> > please delete it immediately. Thank you.
>> > =======================================================
>>Pair Networks, Inc.
>>2403 Sidney St., Suite 510
>>Pittsburgh, PA 15203
>>Dear Domain Administrator,
>>Your company hosts a website at PLAYDAMAGE - DOM which contains a copyrighted
>>photograph belonging to Getty Images as represented by the Stone collection.
>>The web site is www.playdamage.com and the image in use is BE9994-001. I am
>>attaching a screen grab of the use in question and our original image. While
>>the copyright to this image belongs to the respective photographer, Getty
>>Images is the photographer's representative and as such, is the
>>entity that is
>>permitted to issue licenses for use of this image. Any use of the image
>>without such a license from Getty Images is unauthorized. A license is needed
>>in order to receive permission to reproduce or manipulate this image.
>>We have searched our records and have found that no such license has been
>>issued by us for this use. If they have not arranged for a license
>>Images or Stone prior to commencing use of the image, they are considered in
>>violation of Title 17 U.S.C.S., the Copyright Act of 1976. The use of this
>>image on the web page hosted at your site is illegal under copyright law.
>>Under Section 512© of the Copyright Act, known as the Digital Millennium
>>Copyright Act, upon notice of infringement, in order to take advantage of
>>limitation of liability, qualified Internet Service Providers must
>>expeditiously remove the infringing material.
>>I have contacted Curt Cloninger on three separate occasions beginning on July
>>15, 2002 and as recent as yesterday requesting compliance with our terms and
>>conditions of use and have stipulated that he should cease and desist the use
>>of this image. Mr Cloninger has not yet cooperated nor has he expressed any
>>inclination to do so.
>>At this point I am seeking your immediate intercession with this matter.
>>Please remedy this offense with either:
>>(1) Your immediate contact with the site owner demanding the prompt
>>the graphics owned by and copyrighted to Getty Images (2) that you remove the
>>site itself and/or the photographic files from your server.
>>Your expeditious attention to this matter is greatly appreciated, as we find
>>no other recourse for remedy without undertaking legal action. Please
>>understand that this letter is not a warning or threat. It is being sent to
>>you as part of a legal process that must be followed in an effort to maintain
>>our legal rights. Getty Images is committed to investigating licensing
>>infractions not only to protect our own interests, but to protect
>>those of the
>>photographers who submit their photos to us as well. We feel that your
>>cooperation regarding this matter is fully warranted, and expect it will be
>>Getty Images, Inc.
>>122 South Michigan Ave., Suite 900
>>Chicago IL, 60603
Fwd: Re: [T7U9S2W] Unauthorized Use