There is a Hungarian non-profit organization in the EU, which has a website. One of the members posted an article on that website and use a copyrighted image as an illustration. The image was available on another site, which apparently had the permission for it. After a while the organization got an email from a German lawyer (from photoclaim) that they are violating copyright law and they should remove the image and pay. Looks like the price will be around $1000, which is more than the non-profit organization has on its bank account. The organization removed the image, but did not send any response so far. What happens when they ignore the email and don't respond? Can they be forced to pay? Can they make the member who uploaded it responsible for the infringement and give the contact info to the lawyer, so the member will be sued?
1 Answer
If the communication verifiably came from the PhotoClaim attorneys, then the answer is more strongly in the "must pay" column, whereas otherwise it could be a scam. It appears that they require confirmation from clients that a use is infringing. They offer to negotiate in case the fee is unaffordable, but their business is to protect their client's rights.
What happens next depends on the company and the client. They could directly sue the organization, but the organization can shift blame and perhaps get them to sue the individual following OLG Frankfurt a. Main (Higher Regional Court), Urteil v. 22.8.2017, Az. 11 U 71/16 and providing the individual's name and email address. But it is not at all clear that the individual is legally on the hook for this uploading, done as an agent / on behalf of the organization
The firm is not imposing a fine on the organization, it is proposing a settlement figure where, if accepted, they won't file an infringement lawsuit. The firm has a list of prior cases here which you can read along with summary of judgments. The organization should get specific advice on what to do from their attorney, but as a general matter, one can always ignore a letter from a lawyer if one is willing to face the consequences. As a delaying tactic, one might ignore the email and hope that they will go away (perhaps what their attorney is thinking). You might think that they would not bother with such a piddly sum, but their own data indicates that this is a possible amount that they will sue for (and won, in at least one instance).
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It’s worth noting that the “removal” is correction of the infringement, and the “pay us X” is more a “or else we might take this to court and demand damages” rather than a fine that the copyright holder can levy and must be paid. In most jurisdictions, the damages must be established and do not automatically exist, so it’s hit and miss for the copyright holder to take it that far, especially for such a low sum.– user28517Commented Nov 20, 2019 at 17:39
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Afaik. a Hungarian lawyer suggested to ignore it, because it is just an email, not an official letter through the post office. I am curious about the case. I mean I do web development and if somebody uploads such a thing in an article or a comment, then I will be responsible, if I pay for the hosting, domain, etc. Ofc. I can still tell my customers to pay to the domain and hosting provider directly, not through me and problem solved...– inf3rnoCommented Nov 20, 2019 at 17:46
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@inf3rno right now, under Electronic Commerce Directive 2000/31/EC you have protection via a "notify and takedown" procedure under Article 14, so you would be safe so long as it was a third party contributing the content and you remove the offending content when requested. This will change when the EU Copyright Directive goes into effect in 2021, and you are expected to do some form of filtering before the fact.– user28517Commented Nov 20, 2019 at 19:30
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@Moo As far as I understand they want to build something like the NSA, or even worse. All user content will go through filtering services. Which as far as I understand violates GDPR too. I mean filtering is not a technical requirement to send a comment or a blog post so it should be disableable. :S Isn't there a workaround? For example using some sort of forum module hosted from Russia?– inf3rnoCommented Nov 21, 2019 at 7:40
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Btw. how do I prove that something is 3rd party content? For example in the case I described in the question the organization could add public registration to the website and say that the photo was uploaded by a 3rd party. There is a good chance the lawyer did not check if registration is public or what you can do after you register.– inf3rnoCommented Nov 21, 2019 at 7:48