Doing reviews for copyright infringement cases including DMCA and possible criminal charges are not just a single item. I figured it would be best to write an article about this as it is a point now with all the cases being filed and the possibility of the small claims courts. More information can be found at Studio 1 The Magazine which is under a make over at this time. It may take a minute or so to load.
The point is that you have several decisions to make for each case before you file anything. It takes time, patience and a lot of study so that you can make intelligent decisions instead of emotional ones or ones based on assumptions.
I have three different types of infringement cases that are in the works. One involves a single person, another involves several people or entities and the third is a blogger and her blog provider. All of these cases have DMCA implications for a false assertion of copyright. This is quite serious intentional or not. Not only is it illegal it is an item that can be used to prove willingness to infringe. That raises the statutory damages to the highest level which is the $ 150,000.00 for each image. That is where the $ 1.2 million dollars came from in the Morel case. It is also the item that raises the possibility of criminal charges.
I was going through the notes the other day and found the list of people on Pinterest that have used my images that I had not put up there and did not give anyone permission to do so. It is a staggering number. Not all where on Pinterest as some of them were later posted on Tumblr also. I pretty much have done a review of the possible cases. It runs well over a hundred. The review process, the first one is about making sure there is a claim and to see if it is worth the time and effort. As I have mentioned before some of the infringers contacted me when the word got out about them being found out. Many were given a free license to post the images to promote their websites. Others decided to remove them like Hertz and Realtor.com.
You have to be serious and honest about knowing the implications to all parties when you do an infringement case. When you do your reviews be sure to make sure there is a case, first and foremost. Once you do that, whether you think there is a case or not, have an expert check it out. I have checked with three on cases that I am filing. When you get the case to the point that you have decided to file and the attorney is on the same page, you need to do a couple of more reviews of the facts in the case to double and triple check those facts and then you have a review to verify how you can proceed and which way you wish to proceed. If all you have is a copyright infringement case for one photo, it probably is not worth the effort. However, if there are multiple images, DMCA violations and willingness to violate copyrights then that is something else.
Saying something is under review could mean a couple of stages. At the present time mine are in the final stages which will also dictate what order the cases are filed. When that is decided the letters will go out, subpoenas for information will be forthcoming and then the summons to court.
One question keeps coming up and I will answer it using the real estate case for an example. The real estate case will involve several entities and probably multiple individuals. It will be by far the most detailed and expensive case. It could very well be more expensive than the other put together. The question covers how to get information to find out what happened and how much someone made. In the real estate case there will be a subpoena to the real estate company and the broker requiring them to furnish all the documents for the property that is involved in the infringement. It will also require them to produce copies of all the listing agreements the homeowner signed to prove she did willingly sign them. All communications between her and the real estate company will be subpoenaed. Any rental or lease agreements that produced income and the sales documents that involve the closing will also need to be produced. Do not worry about getting information the attorneys know very well how to get it. The communications and computer records for the real estate company of the showings, who bought the property and the information forwarded to the MLS either by personal involvement or an automated system has to be looked at also.
The case for the taking of images on the disk is not an infringement case and has to be handled separately. It is just not about the "professional library" and hidden files on the disk. Many of the images are scans from photographs over the years. Many are of the decease mother of my children with them especially during the little league years and they want them restored to them. This case has no option but to be pursued and it also has by far the most serious consequences for all parties who had anything to do with taking of the disk and allowing it to be stored or used on their property. Serious may not be the best word to describe how bad this can get.
Now you should start to understand how complicated these things can get. Every step in the real estate system will try to put this on another entity or individual so all parties will have to produce all the pertinent information so the actual damages can be assessed to the proper infringers.
I am not an attorney. These are my personal opinions and general information only. These are not legal advice and should not be used as such.