When you start viewing infringement as a personal offense against you and your creation(s), there's a good chance you'll start heading off the rails when attempting to do something about it. Techdirt reader Jorge sends in this impassioned, but clearly wrong, article at PetaPixel dealing with a photographer's attempt to track down the infringer behind an infringing product for sale at Etsy.
The title -- "Is Etsy the New Silk Road for Copyright Infringement?" -- clearly indicates the highly subjective and misguided statements contained therein. It also should be noted up front (rather than footnoted the way it is at PetaPixel) that the photographer writing the post is also the founder of PIXSY, a "service that helps photographers find and fight copyright infringement," by acting as a takedown service as well as an intermediary for the extraction of licensing fees. Photographer Daniel Foster opens the article with this:
While browsing through my image search results on PIXSY (a new service that finds and invoices image theft for you), I was surprised to see my picture for sale on Etsy (above). My immediate reaction:
1. What an ugly mousepad. I’d never print my photo like this.
2. The seller seems to be stealing thousands of photos. How could Etsy let this happen?
3. Who had the nerve to think they could do this?
The Etsy seller in question, Kharma Lu
, apparently does nothing but print images on mousepads, cell phone/tablet covers and other flat surfaces. The sheer number of items for sale suggests
infringement and Foster's experience definitely proves at least one
. Foster obviously wants the product using his photo removed, and it is.
I sent both a DMCA takedown request (which Etsy complied with)...
That's hardly Silk Road-esque and the "story" should be over. But Foster wants more than compliance. This is where it's helpful to know up front that he is a founder of a service that helps photographers collect licensing fees. Foster isn't satisfied with the removal. He wants to find the seller.
...and a separate message to Etsy about the situation. I made sure to provide a copy of the photo source as well as a copyright registration certificate so that Etsy could be sure I am the rights owner. Maybe they would be able to identify the name and address of the seller?
(He states this with complete credulity, as though it were impossible for a non-copyright owner to attach a picture and a copyright registration to an email and start making demands...) Etsy won't reveal this information, not with a DMCA takedown request and not because someone demanded they do. After a couple of more discussions, Etsy points Foster at his legal options.
According to Danny, I would have to file a lawsuit and obtain a subpoena before Etsy would disclose Kharma Lu’s contact information. Yes, that’s right. In order to simply find out who is stealing my photo, I would have to a) hire an attorney, b) go to court and c) request a subpeona for Etsy. Assuming Etsy did not challenge the subpeona, it would cost at least $3,000- $5,000 just to get Kharma Lu’s address.
He moves from severely dubious legal arguments to complaints about life not being fair.
LiilProducts’ shop is still active, even after I reported the copyright infringement to Etsy. Kharma Lu appears to have gotten away scot-free thanks to Etsy’s protection. This just isn’t right.
It may not be right, but neither is demanding service providers hand over customers' information without the proper legal authority. Sure, that may suck subjectively for Foster, but both the DMCA Safe Harbors and small legal barriers are there to deter abusive activity
, not shelter infringers, no matter how victims of infringement spin it.
Foster sums things up with this ridiculous demand:
It’s time to clean up your act, Etsy. You can’t let your sellers steal from other artists and get away with it. At least have the decency to shut down seller accounts when the law is broken.
Foster doesn't actually attempt to verify whether the rest of the photos being used are infringing or not. He simply assumes that because his was, they all (or most of them) are. Etsy isn't willing to make the same mental leap and that makes him unhappy -- as a creator, but probably more importantly, as the founder of a service that's going to run into these built-in protections over and over again
. His service markets itself as cost-effective and easy but the reality of the situation isn't quite so rosy. Once PIXSY starts telling users that they'll have to pay to file lawsuits and issue subpoenas in order to obtain infringers' info, they're not going to be any happier than Foster is.
Beyond all the palpable anger, there's a near-complete lack of effort on Foster's part. He did order one of his "own" mousepads in hopes of obtaining seller information but got nothing more than a shipping department address located in California.
Redditors commenting on his posted rant
performed some ad hoc "due diligence," uncovering the home address
linked to the registrant of the business listed at Etsy -- something Foster could have performed himself if he wasn't so obsessed with making Etsy do the highly subjective
"right thing" in response to his complaints.
This lack of a thorough investigative effort also
doesn't bode well for PIXSY. If its founder thinks the answer runs through third parties protected by safe harbors from the DMCA and Section 230, his service isn't actually of any use to photographers looking to police use of their photos. Actual infringers are the problem and they're harder to track down. It can be done, but you can't find them by banging your head repeatedly at the nearest corporate wall and demanding it bend to your will (and violate their own privacy policies).
Foster wants heaven and earth moved (seller info, account closed, etc.) because he can prove one
product offered is infringing. That's what's actually ridiculous and infuriating -- not Etsy's policies.