Pixsy demanding I pay a fee for unauthorised use of an image. Urgently need help.

[stevedavies]

Sorry to sound so defeatist here, Andy. Just an additional post as victims will be keen to see updates here. I can't take the risk that this goes to court and I lose as that would result in bailiffs coming to my house to collect far more than the demanded fee.
I will try the site you sent though and also I have Find a Solicitor to try too. I need to find out how the court treats a guy who is too broke to go through the litigation costs of a lawsuit.

[AndyJ]

Hi Steve,

You have to do what you think is right for your circumstances. It is precisely because I can't do due diligence into those cicumstances via a public forum, that I cannot advise you on the course you should take.
The other problem with a public forum is that there is every chance that the claims companies like Pixsy and VRG monitor them and so gain an insight into your concerns and your intended course of action, and act accordingly.
I hope you do manage to get some professional advice which is tailored to your individual risk profile and financial position.

Andy

[stevedavies]

Thanks Andy for all your advice. I'm hoping to hear from the IP Pro Bono service.

The main issue I have is I don't feel that the fee they demand is unworthy of an IPEC court case. It's more if the lawyers feel it's not worth their time as it's such a low amount vs what they are used to.
And also how does it normally go down in the IPEC court? Is the attribution failure, while not a transgression, enough for the court to go against me?

Something going for me, other than the lack of justification they offer for the fee amount and the reasons. It seems that Flickr have updated their community guidelines and now require that artists do notify users of their images first if not attributed. I have asked Flickr to investigate the client of PIxsy, and how he uses his images to make money on Flickr. The Trust and Safety team at Flickr are not impressed that I was not notified it seems as I was asked by them if I had been.

This should carry some weight.

I'll keep updating this thread. Unlike a lot of people who just disappeared and never came back to update. Either they just paid or went through a lawsuit and can't discuss. I don't give a toss... I'll be very transparent about how it goes at the IPEC. People need to know.
I'm also contacting journalists soon to fire up a piece on Pixsy that will name and shame; and the copyright trolling culture. No matter how it goes, I won't rest until some pain goes back their way for the stress they've caused me. The first is hopefully their client getting banned from Flickr.

I'll keep updating here.

[stevedavies]

And as a useful update. This may provide weight to my case if not even help put an end to it. Hard to say.

Flickr updated their guidelines as I mentioned and I want to post that change in case anyone not read the March 2023 update.

Previously, Flickr’s community guidelines were a list of do’s and don’ts. Because of this format, our community guidelines evolved into a long list of policies and prohibited behaviors with minimal information about what type of interactions Flickr is for.

Then the big specific part that changes how they view use of the licenses:

Another significant addition is the new “Give some grace” guideline, applicable to Flickr members using Creative Commons licenses on their work, asking licensors to give good-faith reusers a 30-day grace period to correct any error or misuse of their open-licensed content with no penalty. This change was introduced to prevent the malpractice of so-called copyright trolls using the threat of litigation to generate income, and in support of the strategy for addressing license enforcement described in the Creative Commons Statement of Enforcement Principles.

Flickr applied the update in March so any demands after that that did not follow guidelines and not give 30 days grace to good-faith reusers is a breach of their guidelines. This may be a step in my favour.
https://blog.flickr.net/en/2023/05/18/h ... uidelines/

Creative Commons Statement of Enforcement Principles are also updated and at https://creativecommons.org/license-enf ... rinciples/. I am not sure when CC made the changes but it's significant. Not really directly changing how copyright was misused I guess in the IP law's eyes but significant. Or perhaps it is enough. Don't know.

As a licensor, you may always choose to reinstate a license that has been terminated, no matter which version of the license you’ve used. When you contact someone about a violation of the pre-4.0 license terms and they take the necessary steps to correct their errors, it is recommended that you follow the 4.0 practice of reinstating the license.

How a court wold view this, I'm not sure at the IPEC. Creative Commons stress that "Legal action should be taken sparingly." I don't agree with this part that says "monetary damages equal to the amount they would have requested in a negotiated license agreement" but CC don't want firms like Pixsy using the infringements as a business model as it is damaging to the wider community of artists, of course. And their statement rightly says:

But damages awarded for copyright infringement can sometimes be far out of proportion to the magnitude of the harm, and often inappropriate in the case of a good faith reuser. When enforcement becomes profitable, especially when licensors act in a way that suggests they want reusers to violate the license so they can collect fees, it crosses over into trolling and runs counter to these principles.

Anyway, don't know if this adds strings to my bow but it does put pressure on Pixsy's client to explain whey he breached Flickr guidelines.

[stevedavies]

Hi Andy

What do you think of the changes in the CC terms and Flickr guidelines?

Feel free to PM me if you prefer.

[AndyJ]

Hi Steve,

They are both welcome improvements. The ethos of the CC system has always been the free sharing of works, and any financial exploitation of the system clearly undermines this philosophy. However given human nature, I'm sure that for many creators, the desire for personal recognition probably ranks quite high among the factors for why they put their work on Flickr in the first place.

[stevedavies]

Hi Andy

What's the difference between infringement by copying or infringement of the moral right of the photographer to be credited as the author of the work? Is one more serious than the other when it comes to Flickr free images under CC 2.0?
Though, moral rights can result in damages too apparently.

I'm possibly over analysing but I still see moral rights as the focus since it's a free image, and infringement would apply if the image was not free to put the creator back in the financial position he'd be in had the image been paid for. Which doesn't apply to free images.
However, he has sold image licenses but not on Flickr. So he could compare the value of the image to those.

The IPO information on the UK GOV site is clear on infringement by copying. So, does the IPO view downloading an image and uploading to a server differently to linking to the Flickr image URL and not downloading it?

In either case, the image would still not have had the attribution as per CC 2.0 as I was not aware it was essential.
I'm accused of use of the image. Going through their emails, no mention of 'attribution' or 'moral rights'. Just that the image was used without permission.

It's the CC 2.0 license that's created the legal issue but CC want the license reinstated when misused and the user notified, and Flickr require that users are notified with 30 days to correct the transgression.
I'm not sure where favour lies here as I build my case further ahead of the next threat from them.
I understand you can't offer legal advice, but if you could shed a bit of light on this, would be great. thanks.

[AndyJ]

If you look back to page one of this thread I explained the difference between infringement by copying and infringement of moral rights. Both can lead to damages, but the way the damages are calculated in each instance is different. I can't see how any claim against you for copying can get past the first hurdle, since obviouly when it was released using a CC licence, that permitted the image to be copied. That was the permission to copy. The lack of a suitable attribution is either a breach of contract (a licence is a form of contract) or it is an infringement of the moral right of paternity. The IPO is a government agency and so its guidance on matters like this, while it is based on their best assessment of the law, is just guidance. A court is unlikely to take the IPO's views into consideration when hearing a case.

[stevedavies]

Thanks Andy. Any updates to my ongoing battle if you like with Pixsy, and I'll update the thread here.
I'm actually thinking they are on the back foot now. Despite the case investigator saying he categorically wouldn't drop the fee in a big threat a couple of weeks ago, he has now asked me for a new negotiated fee. On the form there is a 3 month payment plan and he's pointed me at that. Not a chance.
I find that funny after he said the original figure was final and reflected the harm that the photographer is due.
Probably as I said I'd negotiate but actually I'm just dropping his weight before I close it all down and refuse to get in touch unless it goes legal.

I'll keep the forum posted on updates.

[AndyJ]

Thanks Steve

[stevedavies]

An interesting case that occurred and written about in 2019. Shows how a court would likely view a case of just 'no attribution' being the accusation over CC-By licenses. Shows how much it's worth to the claimant which can be zero yet costing lots in legal costs. It's interesting when the claimant is outed as a copyright troll when it's clear that's why he or she used Pixsy. In this case, the photographer claimant was not making more than pennies out of his profession. I imagine it must be the same though even if the photographer does make a living from licensed images when it comes to a choice made to apply a free CC license to an image unless the IPEC views statutory rights and moral rights damages are justified. In my case, it was transformative and no money was made from the web page.
https://blog.ericgoldman.org/archives/2 ... -v-wos.htm

[stevedavies]

Thanks Steve

Hi Andy
Hope you had a great Christmas.

Well, as expected, Pixsy came back with the same threats as back in August, just yesterday. It's no shock now. Only no attribution is cited and therefore this is not copyright infringement at all. So based on the excellent advice here and on another forum, I am deciding whether to shut it down and request no further contact unless it goes to their "legal team" or offer a settlement, a low one as compared to their demand but at least my records show compliance then. I'll update here how it goes. But I have not decided. Seems as with the first couple of emails, their threat to escalate continues, only the 3rd time I think in 6 months. Yet not gone ahead yet.

The threats are merely the same:
"As there was no attribution to Mr. Furman on your site, the use of the work was unlicensed and is considered a copyright infringement."

The guy also again repeats: "Once agin. The UK Government provides information about Copyright and the consequences of breaching it on the link below:https://www.gov.uk/government/publicati ... e-internet"

He should also read the part that says about proving the artist's reputation was harmed i.e. economically.

He ends by saying:
"If the license fee is not promptly paid to cover the previous unauthorized use of my client’s work, the next step is for the case to be referred to our legal team for review and further action. You are not putting forward an amicable alternative so you are leaving me with very few options here.
Please review our evidence report and advise. "

Actually I was merely firm about his nonsense around infringement accusations and repeating how unjustified the fee demanded is. I also said I'd make or try to make an offer once I was clear on the accusation of no attribution. That's as amicable as it will get.

It's so repetitive, I've started yawning when reading. Anyway, updating as promised. Just got to make a decision next.

[AndyJ]

Thanks Steve

[Les]

Hi

I just wanted to say how useful Steve's story is to others threatened by Pixsy, so I'd encourage him to keep us updated on his progress, particularly whether he decided to pay them or let it go further.

A colleague has a very similar story, CC2 attribution.
Although Pixsy name the photographer (a name that features in many similar stories) they give two seemingly contradictory statements of ownership; in one place it's the photographer, in another it's a UK company that was only formed a year after the alleged infringement, and none of whose significant people are the photographer.

[stevedavies]

Hi Les

My case is different in that the photographer did seem to create the image, however it's so clear that he's trolling and Flickr need to shut him down, him and his money making Pixsy scam.

I'm in the process of deciding what to do but won't clarify that here as Pixsy may be monitoring these threads. However, I will update on each stage i.e. did it go away, get settled or go legal. That said, once it's progressed either way, I will then clarify what I did next here.

I will say that anyone reading should not just pay up, not the exorbitant fee they demand. And to read all my threads here and other Pixsy threads as Andy has been very clear on many legal aspects and given many tips. I won't go into all that as it's all so clear here in those threads how much guff Pixsy talk and how the law likely views this type of case over CC 2.0 images. So don't pay up off the bat. It feeds the trolls and a very unethical business model which is thankfully not accepted by CC, Flickr or looked on favourably in the eyes of the law. Most lawyers are not interested in representing cases over such low figures.

If you choose to pay up, negotiate but without accepting any admission of liability. And push on a low figure and even push on monthly installments.

If you can't afford it and it goes to court, that's how it gets paid anyway plus it will be a bigger initial legal expense for the claimant. Very unattractive to the claimant.

If you choose to not pay and go cavalier, do make sure to mention the unjustified threats. It may be possible to counter-sue Pixsy over that alone. And that you reserve your rights if it goes to court.

Pixsy hopes people will just pay up out of fear. I say don't give them that satisfaction. These are just points and not legal advice btw. It's all based on what I've learned over many months so you can create your own options. I can't clarify my litigation method here yet.

I'll keep posting as it moves on.