The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Many copyright owners, when they see what appears to be online infringement of their works, send cease-and-desist letters that threaten a lawsuit if the material isn't taken down. But some copyright owners don't give alleged infringers an opportunity to avoid liability by stopping; instead, they just demand payment.
This may be legally justified: If the poster really is infringing, then he has violated the owners' rights and is subject to a lawsuit for damages whether or not he takes down the material. These damages can often include statutory damages of $750 to $30,000, or up to $150,000 if the infringement is willful, or down to $200 if it's innocent. But many people think such demands are unethical, especially when the poster has a good fair-use defense but might lack the money to litigate it.
Matthew Chan runs ExtortionLetterInfo, which criticizes companies that send such letters, and especially Getty Images:
ExtortionLetterInfo.com (ELI) is dedicated to reporting information and providing commentary on Getty Images (and other stock photo) Settlement Demand Letters. ELI is a privately-owned and privately-managed website. Every effort is made to provide factual information and professional opinions regarding Getty Images' (and the respective companies') "practice" of issuing "Settlement Letters" that we consider "legalized extortion".
As Lead Contributors of this website, we believe what they are doing is technically legal but ethically and morally questionable. "The Letter" bullies and preys upon the legal ignorance of the letter recipients. This website attempts to discover, report, and comment on the facts in a civil and orderly way. This website also provides assistance in defending unaware and unintended victims of this Letter.
You can agree or disagree with the opinions that this expresses—but under U.S. law, these are constitutionally protected opinions, and not the basis for a libel lawsuit. Though "extortion" is the name of a crime, in this context it's clear that "extortion" is actually being used to express moral condemnation. Indeed, in Greenbelt Cooperative Pub. Ass'n v. Bresler (1970), the Supreme Court so held in a case involving someone accusing a business of "blackmail":
It is simply impossible to believe that a reader who reached the word "blackmail" in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable.
The very same logic would apply to Chan's labeling Getty Images' actions as "extortion."
That's why I was surprised to see this letter, sent by French lawyer Vanessa Bouchara—representing Getty Images France—to Matthew Chan. (Similar letters were apparently sent to various other critics of Getty Images.)
I am the legal adviser of the company GETTY IMAGES.
The company GETTY IMAGES is the biggest global database. Its main activity is the supply, development and worldwide distribution of online images, videos and music under which many communication professionals made use.
Indeed, it enjoys an established reputation both domestically and internationally. However, my client found many comments which seriously jeopardize its practice on your web site www.extortionletterinfo.com …..
Indeed, the combination of the words «GETTY IMAGES» and «extortion» or «arnaque» (fraud) on the search engine Google bring us directly to your web site.
Furthermore, the regularity of the methods and of the proceedings used by our client had also been questioned, which have been described as «legalized extortion» and «Extortion Letter Scheme».
Please find bellow some of the litigious statements [quoting, among other things, the Mission Statement I quoted above -EV].
According to the judgment given by the First Civil Division of the French Supreme Court on the 12th of July 2012, this is particularly intolerable and reprehensible.
Those acts of gross disparagement seriously damage GETTY IMAGES' image.
This article discredits the services offered by my client. Moreover, it calls into question its seriousness and honesty by accusing it, in a totally unfunded manner, to be the author of dubious proceedings.
According to a judgment given by the Commercial Division of the French Supreme Court on the 15th of December 2009, disparagement is to discredit someone by spreading criticisms and malicious information about it or its business methods.
Moreover, on the 5th of June 2002, the Paris District Court ruled that interactions between web users on discussion forums which comments obviously contain fraud imputations and questionable practices exceed the limits of the liberty of expression. Indeed, it reaches denigration which impair the honor and do not respect the dignity to whom it is directed.
Thus, as the registrant of the web site in question, you are responsible for the information disclosed on it, notably regarding their reliability, veracity or completeness.
Under the judgment given by the First Civil Division of the French Supreme Court on the 5th of July 2006, you shall observed the most elementary prudence concerning the content of the comments disclosed.
Yet, in this case, those statements have undeniably exceeded the right to criticize.
Furthermore, those statements incite to violate GETTY IMAGES' rights, which is particularly intolerable.
As a result you shall withdraw every indication disparaging my client on your website.
If you do not comply with this letter of formal notice within 8 days from the date of its receipt and, in any case, before the 27th of December, I had been instructed to initiate all appropriate action against you.
We truly hope we will not go that far, and that we will quickly manage to settle this matter.
Pursuant to our professional rules, we are available to discuss this case with your usual adviser.
This is pretty striking: Chan, after all, was an American blogger criticizing an American company (Getty Images), even if this by implication may have carried over to its French branch. Now a French lawyer is threatening him—and others—in reliance on French law. One target, Zyra.info, seems to have taken down its materials based on a letter from the same lawyer, though I have not seen that particular letter.
Our readers know that I'm a pugnacious fellow when it comes to things like this. (So, I get the sense, is Chan, and I say that as high praise.) I'm getting excited. Foreign law in American courts! SPEECH Act! (That's the federal statute that provides that foreign libel judgments are generally unenforceable in U.S. courts unless they would have been consistent with the First Amendment if they had been rendered by a U.S. court.)
But Getty Images just ruined it all for me. When I e-mailed Vanessa Bouchara for her comment, she got back to me to say that she'd respond Monday, but then didn't respond further. When I e-mailed Getty Images, I got this response:
Your inquiry to Ms Bouchara of CABINET BOUCHARA—Avocats has been brought to Getty Images' attention and we wanted to provide the below statement from Getty Images:
Cabinet Bouchara was retained as our outside counsel in France, having previously been granted limited permission to act on Getty Images' behalf in this region only. The firm were under no means sanctioned to contact sites outside of this jurisdiction, including in North America, however it has come to our attention that this has in fact unfortunately occurred.
This practice has been ceased immediately and we apologize for the error.
Kind regards, …
Spoilsports. No, I mean, good to hear. Really.
UPDATE [Jan. 11, 2017]: Chan reports that Vanessa Bouchara has also retracted the letter, in this e-mail:
Whilst operating as Getty Images' French legal advisor, we sent you a formal letter dated December 23th 2016, asking you to cease and desist perceived libelous activity on your site.
Please disregard our previous letter, it was sent in error and accept our sincerest apologies.