First this is first, beautiful artwork. I would love sometime to talk with you about your art and perhaps introduce you to my wife. Though your works are very different in style, it seems you two share a common thread in subject matter and interest.

That being said, there are three problems I see with this situation.

First, the DMCA requires that OSPs ban repeat infringers. However, it is not clear about how this ban should be performed. I can ban a user account easily, but that doesn’t mean squat if the person can just create another account.

Second, the DMCA does not protect the host if they profit directly from the infringement. The DMCA protects them if they merely host the image, but once they start selling it and making money off of it, that law does not theoretically apply.

Finally, Photobucket and other image sharing services have not had the copyright pressure put on them of YouTube and various audio sharing sites. To my knowledge, they have no technology that detects infringing images as they are being uploaded and filters them out. This technology does exist, I have seen it, but its use is not widespread.

It is unclear exactly what is going on right now. It could be several things.

First, we could be dealing with morons who are uploading these images for use on their own site and not thinking twice about the “buy prints” feature. That feature of PB seems to actually be little used and the vast majority of images don’t sell at all.

The other option is that it could be someone uploading a bunch of art into PB so that they can have prints made for them to resell. This could be someone at a flea market or a county fair type stand.

Given the spammy nature of the username, it is unlikely that this person uplaoded it with the intent of getting revenue from strangers printing the images. I doubt that could ever be a viable option without serious promotion.

Looking at the images and the fact I was unable to find any of them linked elsewhere on the Web, the second seems likely. The good news is that 500 x 500 is far too small for a good print. You need at least three times that for even a 3 x 5 photo.

Considering that all of the images in the gallery are low-res, that calls into question my theory. It could, after all, be that the images are in a private forum the search engines can’t reach.

As far as plan of attack goes, there are several things I would say.

First, no matter what, register your works with the Copyright Office immediately, if you haven’t already done so. This will provide you better protection of your work and expand your options.

Second, keep up with the DMCA notices. Be a thorn in PhotoBucket’s side if needed. Get them to realize how repeated this is. If you keep this up, they might realize what is going on and take steps to stop it.

One technique I used with Google is to collect as many links as possible and drop them in one notices. It tends to get people’s attention.

Third, consider watermarking your photos. I know, it isn’t preferred but it can help. If you want, I know some great invisible watermarking solutions we can talk about over email.

Fourth, consider contacting an attorney. You need to know if they actually sold any copies of the photo before you can consider taking any action legally. An attorney can help with that. If you need, I can also help you with that process.

Finally, keep on top of the situation. Don’t get frustrated that PhotoBucket isn’t doing more to help and stop taking action. There are further steps to take, but it is important to keep up the pressure in the meantime.

Please, send me an email when you get a chance and we can discuss some more detailed ways of getting on top of this and resolving this.

I have little doubt that, by working together, we can put the breaks on much of this.

I hope to hear from you soon!

First this is first, beautiful artwork. I would love sometime to talk with you about your art and perhaps introduce you to my wife. Though your works are very different in style, it seems you two share a common thread in subject matter and interest.

That being said, there are three problems I see with this situation.

First, the DMCA requires that OSPs ban repeat infringers. However, it is not clear about how this ban should be performed. I can ban a user account easily, but that doesn’t mean squat if the person can just create another account.

Second, the DMCA does not protect the host if they profit directly from the infringement. The DMCA protects them if they merely host the image, but once they start selling it and making money off of it, that law does not theoretically apply.

Finally, Photobucket and other image sharing services have not had the copyright pressure put on them of YouTube and various audio sharing sites. To my knowledge, they have no technology that detects infringing images as they are being uploaded and filters them out. This technology does exist, I have seen it, but its use is not widespread.

It is unclear exactly what is going on right now. It could be several things.

First, we could be dealing with morons who are uploading these images for use on their own site and not thinking twice about the “buy prints” feature. That feature of PB seems to actually be little used and the vast majority of images don’t sell at all.

The other option is that it could be someone uploading a bunch of art into PB so that they can have prints made for them to resell. This could be someone at a flea market or a county fair type stand.

Given the spammy nature of the username, it is unlikely that this person uplaoded it with the intent of getting revenue from strangers printing the images. I doubt that could ever be a viable option without serious promotion.

Looking at the images and the fact I was unable to find any of them linked elsewhere on the Web, the second seems likely. The good news is that 500 x 500 is far too small for a good print. You need at least three times that for even a 3 x 5 photo.

Considering that all of the images in the gallery are low-res, that calls into question my theory. It could, after all, be that the images are in a private forum the search engines can’t reach.

As far as plan of attack goes, there are several things I would say.

First, no matter what, register your works with the Copyright Office immediately, if you haven’t already done so. This will provide you better protection of your work and expand your options.

Second, keep up with the DMCA notices. Be a thorn in PhotoBucket’s side if needed. Get them to realize how repeated this is. If you keep this up, they might realize what is going on and take steps to stop it.

One technique I used with Google is to collect as many links as possible and drop them in one notices. It tends to get people’s attention.

Third, consider watermarking your photos. I know, it isn’t preferred but it can help. If you want, I know some great invisible watermarking solutions we can talk about over email.

Fourth, consider contacting an attorney. You need to know if they actually sold any copies of the photo before you can consider taking any action legally. An attorney can help with that. If you need, I can also help you with that process.

Finally, keep on top of the situation. Don’t get frustrated that PhotoBucket isn’t doing more to help and stop taking action. There are further steps to take, but it is important to keep up the pressure in the meantime.

Please, send me an email when you get a chance and we can discuss some more detailed ways of getting on top of this and resolving this.

I have little doubt that, by working together, we can put the breaks on much of this.

I hope to hear from you soon!

http://s197.photobucket.com/albums/aa226/nanci_weber0714/?action=view&current=PaintedPony.jpg

They changed my artwork’s name from ‘Painted Pony’ to ‘’Painted Woman as you can see in the link above (note the BUY PRINTS) tab.

Then I discovered that a lot of my artwork is all over Photobucket under different names and in different galleries and all for sale!! This is blatant copyright infringement. I filed a DMCA with Photobucket and they removed one of the images but as fast as they remove them more are being uploaded. Photobucket claims no responsibility in what their users upload…but they sure don’t mind making a profit through Qoop their affiliate printing service. So basically they have a loop hole to print and sell counterfeit merchandise, make the money from said sales and the Artist never even knows. They don’t ban these repeat infringers either…just remove one item at a time. I can’t fill out DMCA’s fast enough to keep up. Photobucket is full of artwork being used and sold without the Artist’s knowledge or permission.

If you are an Artist people can steal your work, upload it to photobucket and Qoop will print it on anything and charge accordingly without you ever even knowing it. Or pictures of your dog…or children for that matter..Resolution is of no concern – they will print it anyway.

These ‘photosharing’ companies are creating situations where Artists have to compete with themselves. They are creating counterfeit merchandise and profiting from the unknowing public. This is illegal and just wrong!

I believe that Photobucket could stop this by making the accounts ”private’ by default. Accounts not set to ‘private’ offer the media in each account up for sale. Perhaps even a simply worded disclaimer to educate those uploading content…lets face it, most normal folks know nothing of IP rights, and are just ‘collecting’ work that they like. They have no idea that what they are doing is wrong, and in most cases that it is even for sale.

Any Advise?

Thanks, Sandi

http://s197.photobucket.com/albums/aa226/nanci_...

They changed my artwork’s name from ‘Painted Pony’ to ‘’Painted Woman as you can see in the link above (note the BUY PRINTS) tab.

Then I discovered that a lot of my artwork is all over Photobucket under different names and in different galleries and all for sale!! This is blatant copyright infringement. I filed a DMCA with Photobucket and they removed one of the images but as fast as they remove them more are being uploaded. Photobucket claims no responsibility in what their users upload…but they sure donÂ’t mind making a profit through Qoop their affiliate printing service. So basically they have a loop hole to print and sell counterfeit merchandise, make the money from said sales and the Artist never even knows. They donÂ’t ban these repeat infringers either…just remove one item at a time. I can’t fill out DMCA’s fast enough to keep up. Photobucket is full of artwork being used and sold without the Artist’s knowledge or permission.

If you are an Artist people can steal your work, upload it to photobucket and Qoop will print it on anything and charge accordingly without you ever even knowing it. Or pictures of your dog…or children for that matter..Resolution is of no concern – they will print it anyway.

These ‘photosharing’ companies are creating situations where Artists have to compete with themselves. They are creating counterfeit merchandise and profiting from the unknowing public. This is illegal and just wrong!

I believe that Photobucket could stop this by making the accounts ”private’ by default. Accounts not set to ‘private’ offer the media in each account up for sale. Perhaps even a simply worded disclaimer to educate those uploading content…lets face it, most normal folks know nothing of IP rights, and are just ‘collecting’ work that they like. They have no idea that what they are doing is wrong, and in most cases that it is even for sale.

Any Advise?

Thanks, Sandi

This problem is going to contnue, and proliferate like a runaway train, as long as people make excuses for infringers and for the websites that allow violators to “get away with it.”

I will grant you, what happened to me may be unique, since my infringer admitted – no, he boasted – that the photograph he uploaded to Photobucket.com was not his own. He knew the photo belonged to me, and he didn’t give two hoots about attribution. I am not surprised the DMCA doesn’t cover the behavior of an infringer who is so whacked that he actually brags about his crime.

But the fact that the DMCA doesn’t cover what to do with bragging sociopaths is beside the point, really. We have many laws in this country that govern the taking of property. All websites, including Photobucket, are accountable to the law.

Much of the law is common sense. You don’t steal photographs. You don’t brag about your crime on a public website without paying the consequences. At least, that’s how it should have gone. That Photobucket chose not to comply with the law, and their own TOS, is their problem. You can site fuzzy loopholes all day long, as can their lawyer, but the law itself is clear. Photobucket had no legal right to allow an admitted thief on their website to post a stolen work.

As long as the shady websites choose to look the other way – out of indifference, greed or laziness – Internet crime is going to worsen and artists who care about their copyright will be shut out completely from showing their work online.

Do we really want to pat the collective heads of questionable websites like Photobucket, who refuse to stop copyright infringers and and all the others who refuse to shut down stalkers? I don’t.

This problem is going to contnue, and proliferate like a runaway train, as long as people make excuses for infringers and for the websites that allow violators to “get away with it.”

I will grant you, what happened to me may be unique, since my infringer admitted – no, he boasted – that the photograph he uploaded to Photobucket.com was not his own. He knew the photo belonged to me, and he didn’t give two hoots about attribution. I am not surprised the DMCA doesn’t cover the behavior of an infringer who is so whacked that he actually brags about his crime.

But the fact that the DMCA doesn’t cover what to do with bragging sociopaths is beside the point, really. We have many laws in this country that govern the taking of property. All websites, including Photobucket, are accountable to the law.

Much of the law is common sense. You don’t steal photographs. You don’t brag about your crime on a public website without paying the consequences. At least, that’s how it should have gone. That Photobucket chose not to comply with the law, and their own TOS, is their problem. You can site fuzzy loopholes all day long, as can their lawyer, but the law itself is clear. Photobucket had no legal right to allow an admitted thief on their website to post a stolen work.

As long as the shady websites choose to look the other way – out of indifference, greed or laziness – Internet crime is going to worsen and artists who care about their copyright will be shut out completely from showing their work online.

Do we really want to pat the collective heads of questionable websites like Photobucket, who refuse to stop copyright infringers and and all the others who refuse to shut down stalkers? I don’t.

I’m sorry about that, consider it an old habit from both marriage and running this site, I answer every question directed at me. It’s an annoying habit.

I can’t answer all of your points, as you seem to have made up your mind, but I do want to note at least a few points of contention.

First, your comment about fair use being mainly about text is outright false. There have been many cases involving fair use and images, Kelly v. Arriba and Perfect 10 v. Google just to name a few. Do they apply to your case? Most likely not, but it proves that fair use is possible with images, even when using a whole image. Both of those centered around thumbnails for search engines, others have centered around use of images for commentary and review. Photobucket is in no position to debate the issue of whether or not their use was fair.

Second, you have to realize that the DMCA is a very rigid system. There is little room for flexibility here. You might not want to believe that their hands were tied after receiving counternotice, but consider that Wendy Setzler, quite legitimately, got a clip from the Super Bowl put back in her YouTube account after a counter notice. The use was indeed fair, though the NFL submitted another DMCA notice.

If you listen to my latest podcast, you’ll hear a similar DMCA/fair use battle is brewing up over a jingle from a law firm, this one less likely to be fair use.

I’m not saying this use was fair, I don’t believe that it was, but the host is not in a position to make that judgment. If you wish, I will gladly put you in touch with any of my attorney friends and have them look at your case and see if there are options I don’t,

As far as why do hosts have TOS that they don’t enforce, I’ve wondered that myself and spoken out against it. However, much of it seems to deal with that TOS are written to CYA. Most hosts will only remove what they are legally obligated to remove, even though they have to take a stand against a much broader array of things to shield themselves from other forms of laibility. Libel seems to be one of those areas of conflict. They can’t encourage it, even tacitly, but aren’t required to remove it or act on it when discovered.

I think we agree more than you realize. I agree there were ethical issues with how Photobucket has handled this and I would like to see more effort from them, but the law, as I read it, protects them.

I am sorry to say that as I truly do sympathize and want to help.

Bright:

Yes, I am very familiar with Lessig’s work. He and I have actually spoken on several occasions and his retirement from the copyright arena was a great blow to me. I actually consider him something of an idol in this area, my own CC license is something of an homage to his impact.

If someone wants to copy my work and post it on their site, with proper attribution, I am fine with it. See the CC license again. But I know that others don’t agree with me and that is their right. Lessig understood that and acknowledge that CC wasn’t for everyone.

I agree that copyright law is not ideally suited for “students and deadbeats” but here’s an intersting fact. Of the plagiarism of my own writing I’ve seen in the past year, over 60% of it has been on social networking sites. Most of the remained has been on blogs. If someone uses my work with attribution, I leave them be, as per my license, but I will not tolerate plagiarism and you yourself indicate a disgust with that.

Why do I help others who are just protecting their copyright and not necessarily dealing with plagiarism? Because I don’t think anyone should be forced into a license agreement they don’t want. If they are hurting themselves, as I suspect in some cases at least, I view it as their decision. I’ve written several times about the benefits of CC licensing and copyleft, but everyone has to make their own call.

In the end, the free market, not the law, will decide what uses are acceptable. The law moves too slow. In the meantime, all artists deserve a voice in that. I’m not going to deny someone the tools to defend their legal rights just because I think it is a mistake to do so. I don’t know their situation, I don’t know their beliefs, it is not my place to say.

I believe in letting people making their own decisions about right and wrong and, so long as their decisions do not run afoul of the law, I respect their wishes.

All in all, I try to keep my personal views about licensing and copyright out of the equation and stick to the law itself. If people ask my opinion, I give it, but otherwise stay out of it.

I don’t see that as championing, but perhaps pragmatism.

I hope that helps you understand where I’m coming from. I think we’re, much like Kate and I, are more on the same page than is obvious at first glance.