I received the following e-mail a couple of days ago:
You are using our image with out permission on your website. We have a
$2,000.00 copyright infringement fee that is automatic when you violate
our copyrights! Please give me your mailing address so I can send you
the bill. Once you pay the bill you can continue to use our photo on
your website for the rest of this year, but as it stands, its been up
for quite a while now. Please send me your updated mailing address or
we can find that with our lawyers. If we need to hire our lawyers to
collect this fee its going to be much more then the $2,000.00 (in order
to pay the lawyers). Your choice.
Sincerely,
Jimmy Dorantes
Director and CEO of Latin Focus ((c)L.F.)
I obviously did not like it. In particular the tone was not only not very nice, but it also sounded almost like a scam, maybe you send thousands like this and some people will actually send the money in. A second reason was the fact that it did not even mention the image that I had used. Third, what is this “automatic copyright infringement fee”?.
So I replied and an answer came back pointing to an approximate location where this image was. It turns out I was not “using” the image; I was linking to their image on their website. The image itself indicated that they had a copyright on it. Thus, I was being threatened for linking. After a little research I have discovered a number of things:
–Linking is considered to be legal as no case has said that direct linking to the source is illegal. This reference is perhaps the most complete I found to the issue and within my limited understanding it appears to conclude that it is legal “because the linking party is not doing anything that seems to involve a direct manipulation of the copyrighted materials at all” . In fact, the ACLU has aided in cases against linking because it considers it to be part of free speech. So, I could probably get free legal counsel.
-In one case linking was declared illegal if you linked to what was considered an illegal copy of the software to decode DVD’s. Similarly, some organizations have asked people to remove hyperlinks to illegal sites or illegally copied material, such as the case of a terrorist site and the University of California in San Diego.
-There is one case in Denmark where a Court ruled the practice of “Deep linking” illegal. The decision basically said you could link to the main page of a site but not specific items. I remembered that I still have a bank account in Denmark, from the time I was a visiting Prof. there in the eighties. Last I saw it had five bucks in it, so I guess they could sue me there.
-It is also interesting to consider the fact that my website is not for profit. I do not even have a Pay Pal link. Maybe I could declare The Devil’s Excrement under Chapter 11. In fact, if you say my time does not count, I am down forty bucks with this site so far. Well spent, but I certainly have not profited in any way from the linking to the image. Even if I had, I wonder if I could argue that I would only have to pay them the fraction of clicks on the link to their site divided by all the clicks ever made to my site. Given that it is not the most visited part of my website, it would be a miniscule amount anyway, even if mine was a well-visited, for profit site.
-I also found opinions on the web that if someone does not want his/her site linked it, it should say it on the home page explicitly and prominently. However, others disagree on this and this site has the policies of some companies. In any case, the only warning in the Latin Focus page (home page under warnings, no deep linking involved) is, as of today:
No images may used for other websites or published in any way, medium or media without written permission and appropriate fees paid to Latin Focus for each use
Notice it says you can’t use it in your website, but it does not say you should not link to their site.
-Prof. David Dorkin has a web site about the topic and I love this quote from him: “Linking policies demonstrate ignorance”
-There are other interesting possibilities. Venezuela has exchange controls, not a single dollar has been given out for essential imports in the last 80 days by the Government. Even if I lost the suit, how could I pay them? How much will the money at the official rate be worth by the end of the process? Will they sue here? Do they know the justice system does not work here? Ummm…..maybe I could get Daintily Dirty to send them a pair of panties and that will settle it……