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Pixsy.com alleging copyright infringement

Posted: Tue Aug 11, 2020 2:36 pm
by Seb99
Hello,

I've had an email from Pixsy.com threatening me with legal action unless I pay them a substantial fee for what they say was unauthorised use of an image. The 'original' image they link to is on etsy.com where you can buy it as a print for well under £10, but they want closer to £1,000 for infringement.

Now, if I had copied it off the internet and put it on my site then maybe they had a case, even though the amount may be excessive. But it's not as simple as that, as I'll explain below.

My site is an Amazon affiliate site, which means Amazon allow us to put their products on our site. They provide us with access to all their products (millions of them) and give us URLs to images to use to promote them.

So in theory, every Amazon product is listed on our site, though in reality we only get the information off Amazon when somebody looks at a page. So for a product like this the only time it's viewed is when somebody (like Pixsy.com) looks at the page, or when the Google spider crawls the website. I can look back over our website stats and see that the only time that page was ever viewed by a person was in the last few days, which will be when they looked at it.

So, facts about the unauthorised use:

1) The image is hosted on Amazon, not our site. Even the URL of the image they provided was on Amazon.com. Our site's product page's HTML includes that image, but the source of that image is Amazon. We never download it to our server.

2) As our images are provided (and hosted) by Amazon, it's not reasonable to expect that we could check the hundreds of millions of images Amazon allow us to (in theory) display on our site. Amazon explicitly make these images available to display on affiliate sites (I've not just copied it or linked to one without them knowing) and it's not reasonable for me to expect images provided by one of the World's biggest companies would include unauthorised images.

3) The image is only a relatively small image. The normal sort of size a website product image is, not a high quality version that the prints (costing under £10) would be printed from.

4) The product page is never viewed by any actual people. We technically list pretty much every Amazon product on our site, but in reality only a small number are actually viewed by people.

5) As nobody has viewed the page, we've not profited from it. Which also means that the copyright owner hasn't last anything.

6) Until somebody views the page, it doesn't exist. It's not stored on our server, either the image, URL to the image, product page or anything. Once somebody decides to view the page we then call Amazon giving them the product ID. They then give us the product details (including URL to the image) and we then construct the HTML page. So it's never hosted/stored by us.


What I want to know is how best to proceed. My initial thoughts are to remove the page - as point 2 says, it's not reasonable for us to know in advance that an image on Amazon might be unauthorised but if alerted we'll remove it immediately. It makes no difference to us, as nobody actually even looks at the page, but I'll happily stop the product page being displayed.

But what next? Do I reply and make my points? That may be the best thing to do, but I then expect them to reply telling me I'm wrong and threatening me more. Not because they're right, but because they make money by threatening people with legal action whether or not it's something they'd actually win.

What I don't want to do is to get into a legal dispute that costs even more, even if they'd not actually win in court. I also don't want to pay a huge amount to get them off my back, only to open myself up to more as they find more Amazon images they can threaten me with!

Re: Pixsy.com alleging copyright infringement

Posted: Tue Aug 11, 2020 10:20 pm
by AndyJ
Hi Seb99,

Thank you for providing all the details. From what you have told us we can be reasonably confident that under EU law you are not liable for any infringement. This is based on two important decisions by the Court of Justice of the European Union known as Svensson and GS Media.

The Svensson case established that linking to copyright matter hosted on another website did not amount to making the material available to the public (this is one of the rights available to a copyright owner) provided that the link did not circumvent any restriction such as a login or paywall on the hosting site. The court said that as the copyright work was already being made available to an unrestricted public via the hosting site, there was no widening of this access for the public by providing a link, so no infringement of copyright. Svensson addressed the issue from the standpoint that the hosting site was hosting an authorised copy of the material concerned.

The GS Media case allowed the Court to go on and look at the situation where the material being hosted was unauthorised, ie it was infringing. The court concluded that in normal circumstances a third party who linked to that material, even though it may have been infringing material, was nonetheless not widening the extent of the infringement and therefore was not liable, even though the hosting site was. There was one proviso with the GS Media decision and that was that where the linking site might benefit financially from providing a link, the site had a duty to first satisfy itself that the material was authorised.

Unfortunately the court was not very clear about what they meant by financial benefit: at one point they talk about "the posting of hyperlinks [...] carried out for profit" and elsewhere they mention "those links are provided [in] the pursuit of financial gain". Two slightly different things, I suggest. As you say, while the link you provided might have resulted in a sale, and thus a financial gain to you, it was not the image per se which would lead to a successful sale, but the product information in the Amazon listing. I think there is a reasonable argument to be made that as the image only formed part of the journey towards a sale, it was not the main or even a critical part, and so the posting of the link to the image alone was not solely for financial gain. However let's assume for a moment that the use you made of this link was exactly the sort which the CJEU had in mind when it spoke about financial gain. The court was then even more unclear about what a site which intends post a link for gain is supposed to do before activating such a link.
Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
(paragraph 51 of the judgment)
The fact that Amazon is the hosting site in this case clearly provides strong grounds to rebut the presumption that the 'necessary checks' were inadequate. This view is strengthened by the fact that large sites such as Amazon, Youtube and ebay etc all have perfectly good systems for reporting alleged infringements and therefore, if Pixsy has genuine grounds for alleging this, it is reasonable to believe they would have first tackled the source before going after a hypothetically infringing link to it by a third party.

All this leads me to suspect that the Pixsy claim may well be based on a mistake. Either the image concerned has been correctly licensed for use by Amazon (highly probable) and therefore you fall under the Svensson heading of legal linking, or the photographer on whose behalf Pixsy is operating does not have a valid claim to copyright (possibly the image on Amazon though similar is in fact the work of another photographer) in which case both Svensson and GS Media apply.

And even if I am wrong on these matters, you are clearly not liable for primary infringement. You have been implicitly authorised (see section 16(2) of the Copyright Designs and Patents Act 1988) by Amazon to use the images they host and therefore, if Pixsy's claim is indeed valid, primary liability lies with them. At most you might be liable for secondary infringement (section 23 of the CDPA) - possessing in the course of business - and because you did not know and had no reason to believe the image was an infringing one, you have a full defence in answer to such a claim.

Re: Pixsy.com alleging copyright infringement

Posted: Wed Aug 12, 2020 11:52 am
by Seb99
Hello AndyJ

Thank you for your extremely detailed and helpful reply! It's much appreciated!

Just to potentially clarify one point - where you say that the image is likely to have been correctly licensed by Amazon I'm less sure about that as it's not a product sold directly by Amazon but one sold by a third party on their site. I can't say whether this third party has correctly licensed the image or not, and there's no reasonable way I can check every single Amazon product has been licensed correctly - I just have to believe that if Amazon are listing them on their site and providing me the product information that it is licensed, but that if anything unlicensed is brought to my attention then I'll remove it.

But as you say, Amazon should have a good system for reporting alleged infringements and as they are the source then that is who Pixsy should be dealing with.

While I'm as confident as I can be that I'm legally ok, what worries me (and maybe any small business that gets a similar email) is where it could go if they decide to pursue this. Could I find I have legal costs and/or have to pay their legal costs in the (hopefully unlikely!) event things went their way?

What I plan to do is to remove the product and reply to them telling them why they need to talk to Amazon not me. I'll explain that I'm not hosting the image, that we've not gained from it and that they've not lost anything (as nobody's ever even viewed it, other than them), that we had no knowledge that the product was unlicensed and couldn't reasonably be expected to, and that we've stopped it appearing in future as a goodwill gesture while they pursue this with Amazon.

Maybe they'll reply and accept this. I understand that there is a lot of copyright abuse that they're often sending these emails to people that are making unauthorised use of images, so maybe when I point out that this isn't the case with me then they'll leave it at that.

However, I really expect that they'll still try to bully money out of me, whether they have a case or not, by threatening legal action. So I shall probably keep simply replying that it's a matter for them to contact Amazon about, and keep replying that while ignoring their threats.

Re: Pixsy.com alleging copyright infringement

Posted: Wed Aug 12, 2020 8:21 pm
by AndyJ
Hi Seb,

I think what you propose to do is probably the right response. Companies like Pixsy don't tend to have in-house legal teams and are probably not that clued up about the ramifications of court decisions like Svensson and GS Media. They are looking for quick-turnaround payments by people who are scared by their threats. In my experience they don't want to get involved in long complicated legal battles because that is not cost effective for them. For that reason I suspect they will not follow through on their threats to take you to court if need be because there is a good chance they will lose and the precedent will then be set for future cases of the same type.

Even if this went to court, there's very little chance you would incur substantial legal costs. This is because the case would be scheduled for the small claims track of the Intellectual Property Enterprise Court (IPEC) where each side bears its own costs. And given that you say the same image is available on Etsy for £10, I find it difficult to believe that the market value of a licence for use of the image would be substantially greater than that, assuming of course that the Etsy use is authorised. This is an instance where there were no grounds for a claim of infringement until they themselves activated the link which caused the image to be downloaded. To that extent they have, in effect, caused the infringement, if that is what this is. I can't see any court seeing that as straightforward strict liability infringement. And if, as I suggested in the earlier posting, this is actually secondary infringement then you have a strong defence.

I should interested to hear, assuming they reply, what they have to say about the action they have taken or are intending to take with Amazon. Obviously Amazon can employ a high-priced legal team who will see off Pixsy in short order. They (Amazon) will argue that they are protected by Articles 12, 14 and 15 of the EU's E-Commerce Directive which say
Article 12

"Mere conduit"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement. Article 14

Hosting

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

Article 15

No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
Arguably some of this negation of liability might also apply to your business too, although I don't think the UK courts have ever been asked to decide such an issue.

Suffice it to say if Pixsy are stubborn and stupid enough to think this claim stood a reasonable chance of success given all the levels of legal uncertainty in play here, you would have little trouble in finding support from other small business and consumer rights organisations etc, eager to resolve this as a test case. Given our impending departure from the EU and the ending of the direct effect of future CJEU decisions on UK copyright law, It would be interesting to see if the UK courts used such an opportunity to flex their muscles and correct some of the anomalies thrown up by the GS Media decision.

Finally, I am intrigued to know what this image depicts. Is it a picture of a product or is it the product itself, ie a piece of artwork which is for sale via Amazon and Etsy. If it is latter then you have a further defence due to section 63 which permits the making of a copy of an artistic work in order to advertise it for sale. And if it is the former, that is to say, a product shot, than it is fairly well established business practice that such images may be re-used by anyone selling the product depicted, in much the same way as the Section 63 exception works. This is not a legal defence but a court would certainly take it into account.

Re: Pixsy.com alleging copyright infringement

Posted: Thu Aug 13, 2020 3:01 pm
by Seb99
Hello Andy

Thank you for the information about the small claims track - as somebody that has never had any dealings with court there's always the worry when somebody threatens to take you to court that if they won you would be liable for not only the amount of the claim but also tens of thousands in costs that they decide to rack up! So if it would be dealt with in a court where costs were limited then I can be happier about refusing their demands.

The cost of the image in Etsy is actually well under £10. However, that's for a single, small print of it. I think a small print would be more comparable with a product image on a website so am using that as the price for comparison, though even their biggest print is only just over £30. However, that's the cost to buy a print, not the cost to license it for displaying on a website - so I can't be sure what they think that would be worth as it's not an option. But still, the cost they're selling prints for must be an indication. And the amount they're asking for is well under the £10,000 that the small claims track handles.

One aspect that may be different to the Svensson case is that we're not so much linking to something on another site, but are displaying an image from another site embedded on our web page. So if you visit our product page you will see the image - but the image is held and served by Amazon, who make the image available to us to display. So I don't know if there's a slight distinction between linking to Amazon's page where they display the image, and with us embedding the image on our product page but where the image is, nevertheless, hosted on Amazon's servers. So maybe it could be said we were widening the access for the public by displaying the image on our product page, even though the URL of the image shows it is hosted by Amazon?

As for what the image depicts - what they claim is the original is a drawing that they will (on etsy.com) sell you as a print. The product on Amazon shows the same image but on a cushion. It's quite possible that the person selling it has taken the image unlawfully, but there would be no way of me knowing that in advance. For all I know they're doing it legally under license. The image has been altered slightly from the original, in that it's now on a cushion, but it's pretty much the same just with the border of the cushion around it.

What I will do is reply to them with a relatively short email that lays out the basic facts, as I mentioned before. If it's a genuine mistake by them then they ought to drop it. If they still demand money, which I think would demonstrate that they're concerned with scaring/bulling people into paying money when they have no case, then I'll reply with more detail about the Svensson and GS Media cases. I'll possibly ask for actual proof that their client does own the copyright (currently, it's just them saying they do and expecting me to believe it and pay them a huge settlement!) and for confirmation that the person selling the product on Amazon isn't actually licensed to do so. That may give them enough hoops to jump through to drop things.

If they keep at it then I'll just have to keep referring them to Amazon, who host the image. They'll eventually then have to decide whether to carry on or drop it.

I'll certainly let you know how it goes!

Re: Pixsy.com alleging copyright infringement

Posted: Thu Aug 13, 2020 11:03 pm
by AndyJ
Hi again Seb,

While your situation may not be identical to Svensson, it is to another CJEU case known as Bestwater, where the issue was about a framed image* which describes your situation. I didn't mention it before because it didn't seem relevant. Unfortunately there is no English version of the judgment. If you would like to read it, you could run the French or German version through Google Translate. It's only 20 paragraphs long and you can find it on the Curia website here.

If I have understood you correctly the Pixsy claim relates to an original piece of artwork or drawing and not a photograph, and what is available via your website is a photograph of substantially the same drawing depicted on the cushion. If I have that correctly then the claim is even more tenuous, because the work you made available via your website was not a copy of the original, but a photograph of a derivative work. In other words the due diligence process which the GS Media decision mandated would not have applied to the drawing, only to the product shot which Amazon served you. Presumably the maker of the cushion was also responsible for the product shot of it and so would be able to say whether the use of the drawing was authorised or not. Having previously said that Pixsy would be foolhardy trying to take this claim any further, this extra complication adds further layer of uncertainty to the whole legal situation. While the artist has every right to protect his/her copyright, it is sounding increasingly likely, given the Etsy prints, that the use on the cushion was also possibly licensed, and that therefore there is no basis for this claim, or at the very least, no claim should be raised against you until after the cushion supplier and Amazon have been in the crosshairs. If neither of them are found to be liable, and they are higher up the chain linking the work of the artist to this product shot, then you certainly cannot be liable.

*The copyright work in the Bestwater case was actually a video clip about a water treatment process, but the principle is identical.

Re: Pixsy.com alleging copyright infringement

Posted: Fri Aug 14, 2020 9:45 am
by Seb99
Hello Andy

Yes, it does sound like the Bestwater case covers my situation and that their case has no grounds as I'm hotlinking/embedding the image. Actually - it led me on to some Googling that led me to the following page:

https://www.pixsy.com/academy/image-owner/hotlinking/

Yes, that's actually a post on Pixsy's own site where they say "Embedding images without permission remains legal in the EU and US."!

I had been planning a long email response to them where I lay out all the details about why we're not liable for this. I now think I'll just send almost a 1-liner back asking them to confirm that they are actually invoicing me nearly £1k for an image hosted by Amazon and suggesting that surely they should be directing this to Amazon instead! If they say I still need to pay it then I can just point them to their own site says there's nothing illegal about it!

Your description of the image is partially correct - it is ostensibly a photo of a product (a cushion) with the artwork printed on it. However, to me it looks like it might have been mocked up in Photoshop rather than a photo of an actual product - so it's like a photo of a white cushion where somebody has overlaid the image and are using that as a product image. It's not that it looks obvious - most people would look at it and think it was a photo of the product, but having seen the 'original' too I think it may well be a mock up. That said, it could be argued that it was a photo of a derivative work as that is what it appears to be. I'll send you a private message with a link to it so you can see the actual images, rather than post links in the forum.

Re: Pixsy.com alleging copyright infringement

Posted: Fri Aug 14, 2020 11:03 am
by AndyJ
Hi Seb,

Thanks for the link to Pixsy's academy. I hadn't seen that before. I love how they portray hotlinking as morally unethical and an anomaly in the law, while at the same time making claims for unreasonable amounts of money, unrelated to the actual market value of the images concerned. Not sure they can occupy the moral high ground on that one.