The past few weeks have been interesting as I’ve learned a lot about the legal system from friends and lawyers and I’ve had the chance to go back to the time when my days were spent ignoring harassment and bullying by people that don’t like me. I haven’t had that sort of hate since I was living in San Francisco and hooded guys would follow me and call my work issuing death threats simply because I was an outspoken citizen who was sick of crime at my doorstep. I don’t think anything in my life can compare to what happened running AdamsBlock. Luckily, this instance is all via Twitter so that’s pretty easy to ignore. The Cyberbullying from Jason Wilder I can deal with but I’d like to set some things straight, update you all on recent developments and share with you my opinions on this matter. Unfortunately, the summons to appear in Federal Court didn’t arrive following my counter-notices to Jason’s DMCA takedown notices so his Twitter bullying is for naught as his opportunity has passed when it comes to bringing me up on charges. If you’re just tuning in, this is a follow up to this post concerning a DMCA notice (that eventually became 3 DMCA notices) from Mr. Wilder that I posted on September 6th.
Following the notices of my infringement of copyright, I met with a lawyer here in Lebanon, NH who specializes in patent and copyright law. Our hours spent over the next few days helped me arrive at these key takeaways:
- Jason Wilder was the copyright owner of the image in question depicting someone photographing a concert using their iPad
- Jason never uploaded the image to his domain or other web galleries such as Flickr
- Jason did upload the image to Twitgoo and their Terms of Service is designed in a way that allows me or anyone else to hotlink to it (more on this below)
- Jason does not own copyright over the text of his tweets
- Jason does not hold a copyright or trademark (registered with the Federal Government) for his logo (ishotyourband)
- Jason’s first claim for the photograph said I was using the image for commercial reasons and he made this remark under penalty of perjury
- Jason’s second claim for the screenshots I took also made, under perjury, that he was the owner of the copyright for those tweets and logo was also false
With these takeaways, I was confident that the DMCA take down notices issued by Jason for the use of his photography (with watermark) and the screen shots of his Twitter account taken on my PC were allowed by me for use on my blog since I was not operating the blog for commercial reasons.
I’d like to say that if the photo I used was hotlinked from Jason’s website or Flickr or if the photo I used was uploaded to my server, I would be at fault for copyright infringement. By that definition I stole it and he’s right and, under different circumstances Jason would be entitled to royalties and removal of the image at his request. These claims made by him I’m not disagreeing with but, as confirmed by Twitgoo’s support team via email, you don’t even need to be a registered user of their service and, simply by linking and embedding the image hosted at Twitgoo.com, you are a “user” by definition. However, for clarity’s sake, I am also a registered user of the service and Jason’s claims that I am not are false.
Since, I am a user of Twitgoo and Jason agreed to their TOS by joining the service, the image I was hotlinking on my site is exempt from royalties and licensing restrictions held by the copyright holder (Jason Wilder). The image was not saved to my PC or to my web host’s servers. It was linked to. Hotlinking is covered under the DMCA but this note from the Twitgoo TOS (section 6.1) exempts me from DMCA territory as confirmed by Twitgoo’s support team via email:
Twitgoo does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Twitgoo Services. By displaying or publishing (“posting”) any Content on or through the Twitgoo Services, you hereby grant to Twitgoo and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels. Content will be publicly available, and Twitgoo and other Users may copy or display Content outside of the Twitgoo Services through the quick link feature or through any other display mechanisms.
On the post that was initially subject to Jason’s initial DMCA notice, I added this:
I am currently linking to TwitGoo.com. If Jason Wilder would like this photo to be removed from display on my blog, he will only need to remove the photo from TwitGoo (URL HERE). Removing the photo from TwitGoo will break the IMG link on my page and revoke the license I was granted by TwitGoo as a user of their service. This is the only statement I will make on this matter. Jason can remove the image at any time.
I am happy to share that Jason finally took my advice and removed the photo and others from Twitgoo. As a fellow photographer, I do not share photos on services such as Facebook where I know I have given up my rights. Camera-phone pictures are one thing but photos I shot, edited and maybe one day will profit from don’t get posted to services like TwitPic or TwitGoo. Jason has removed all photos and thus retained his rights to his photos. If you go to the post linked above, you’ll see now that that the image in question is missing and I assure Jason that I won’t be re-posting it, downloading it or copying it now that my rights as a Twitgoo user don’t apply now that the photo was deleted from their service. Jason revoked rights to me as a Twitgoo user to that image and I will respect those rights.
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Now, for a few lose ends:
First of all, Jason made this tweet yesterday:
“I decided to sell @adamjackson prints to pay for the licensing fees he owes me, would people buy it? I am thinking “Portrait of a Infringer””
Unfortunately, this is illegal. My photos are licensed under Creative Commons because I believe that my photos should be shared if anyone would like to do that. However, I use this license for my work that is published online:
You are free:
- to Share — to copy, distribute and transmit the work
Under the following conditions:
- Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
- Noncommercial — You may not use this work for commercial purposes.
- No Derivative Works — You may not alter, transform, or build upon this work.
Jason is actually allowed to download, upload and then share my works with anyone that he would like assuming he doesn’t use them to sell products or services. Now, if he’d like to package my work and sell it to others for profit that is against license and I am stating that I will sue him for damages. He may pose an argument that he is selling them as an artistic representation of me as a thief and thus it is allowed via fair use but this will be false and I will continue with my suit against him. I believe that, from a moral argument, to profit from my work is far worse than my case where I displayed the work on a page that only received 50 page views (prior to Jason linking to it) and was not used for profit in any way. I hope Jason doesn’t go through with this plan as it will cost us both a lot of money in legal services and I’d rather go home to Florida to see my family for Christmas than spend it in a Tampa courtroom arguing with a fellow photographer who’s work I respect and appreciate.
Secondly, there’s this bit of Florida law that I’d like to share:
Cyberharassment. Cyberharassment differs from cyberstalking in that it is generally defined as not involving a credible threat. Cyberharassment usually pertains to threatening or harassing email messages, instant messages, or to blog entries or websites dedicated solely to tormenting an individual. Some states approach cyberharrassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone cyberharassment statutes.
Jason and I no longer have any business to conduct. He applied a DMCA take-down notice which proved to be false and I had a lawyer assist with a counter-notice. When Jason failed to file a lawsuit with Federal Court within 14 days of my counter-notice, the content was put back up on my site and that’s the end of this story. The continued harassment of me via Twitter and other forms of communication where tweets are being directed to my employer and Jason’s thousands of followers and continues to escalate is simply too far. As far as I’m concerned and assuming that Jason doesn’t proceed with the sale of my works, we have nothing else to discuss. The targeting of me and my employer is a form of Cyber harassment and I’d like it to stop.
I respect Jason’s work and his contributions to photography and he’s doing a hell of a job tracking down guys like me and getting them to pay up. I love watching artists’ publish work and then fight to keep their rights to it and insure they are paid for the use of their work. I want Jason to continue doing that and I’ll follow his tweets so if I see a chance to yell at someone who stole his work, I’ll join that fight because I believe in what he’s doing. I was wrong to use his photo and it’s only a minor technicality that allowed me to do so but it was still wrong. For now, I hope this is the last time I have to write about this situation. I hope my work isn’t sold commercially and I hope the harassment will stop. We’ll see. I’m including below more screenshots of the bullying from Jason and linking to the original screenshots of our conversations when this ordeal got started.
Jason, good luck to you and thanks for the big educational lesson on how this system works. Sorry to cause you some gray hairs and I promise to not link to any of your work ever again without your expressed permission.
PS: I love your beer selection. You’re quite the connoisseur.
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Additional Media:
Initial Screenshots of Conversations we had 3 weeks ago: (Previously DMCA noticed by Mr. Wilder)
Recent Tweets directed at me:
