Print Story Threatened for not Giving Away My Train Video?
Law
By lylehsaxon (Mon Aug 16, 2010 at 04:05:31 PM EST) (all tags)
Sigh... That train video again.  I asked one of the copiers to stop illegally using my video.  He/They ignored me.  So I asked Google to help.  They took the illegally posted video down.  Since then, the guy and his company have been harassing me trying to get me to give them permission to use it - which they promise not to do.  Now they are threatening to sue me!  Does this make any sense?


Here's the most recent e-mail I got from the guy's lawyer:

     I wanted to follow up regarding your discussions with XYZ-Co.
     As I mentioned in my previous emails, it views the email agreement between you and Aabbc Bbdde as enforceable.  However, it would be willing to consider modifications to the agreement.  If you'd like an additional cash settlement amount, XYZ-Co. would be willing to consider it.  If you'd like to alter the language around the license, that would be a possibility as well (but the agreement must include a provision that you will remove the takedown notice or authorize XYZ-Co. to do so).  XYZ-Co. wanted to make clear that it is not looking to use any of your content in the future and has no intent to do so.
     Please call or email me and let's try to resolve this.  The next step from XYZ-Co. will be to initiate a lawsuit to enforce the settlement.  This will be a hassle for all involved and it doesn't seem like it's in anyone's interest to go down this route.  However, XYZ-Co. may be forced to do so.
     Let me know if you have any questions.  I'm happy to answer them and to walk through the agreement with you.  Either way, this is a significant issue for XYZ-Co., and it needs to resolve the issue one way or the other.
     I'm at 123-456-7891.  I'm happy to get on a call with you and short this out.  (Also, I should mention that if you are at any time represented by counsel, please let me know, and I will speak with him or her directly.)

Is there some legal reason why I have to give someone permission to use my video?  This particular site seems to be nearly purely copied material, so maybe they've gotten in trouble with Google?

The "agreement" the lawyer refers to was a preliminary discussion about coming to an agreement with the guy who copied the video.  At one point we were close to an agreement, but before committing to it, I reread it and realized the wording was weird - designed to enable them to claim that something like a previous agreement had been in place.  Now I don't want anything to do with these people and don't see why they think I am obligated to give them legal permission to repost the video.  This is just wrong....

What do you think?

Lyle

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Threatened for not Giving Away My Train Video? | 39 comments (39 topical, 0 hidden) | Trackback
It's bullshit by notafurry (4.00 / 8) #1 Mon Aug 16, 2010 at 04:18:41 PM EST
They're hoping you will cave to the threat.

I'd respond by informing the lawyer that there is no agreement, there has never been an agreement, and that the client's previous use of the material without such an agreement constitutes a valid reason in your mind not to enter into any agreement with the client. Also, you regard the implied threat to be unprofessional behavior on his part and will be contacting the Bar in his state.

When someone is firing shots across your bow but doesn't have the firepower to back up the threat, the best response is to let them know your next shot will be through the wheelhouse.

^^This^^ by Breaker (4.00 / 2) #2 Mon Aug 16, 2010 at 04:28:19 PM EST
Eleventy.

I'd also add a rider that you view the matter closed, and any further communications that require your attention will be charged at $1000 per item.


[ Parent ]
Are there reasonably cheap attorneys in Japan? by wiredog (2.00 / 0) #3 Mon Aug 16, 2010 at 04:47:17 PM EST
If so, maybe you should consult one. Have him send the nastygrams...

Earth First!
(We can strip mine the rest later.)

[ Parent ]
I'm not sure.... by lylehsaxon (2.00 / 0) #6 Mon Aug 16, 2010 at 04:53:32 PM EST
The situation with lawyers in Japan is a bit different than in the US - I read once that there are more lawyers in San Francisco City than there are in the entire country of Japan.  It's vastly more difficult to become a lawyer here and anything that goes to court takes years and years to settle, so people try to avoid lawsuits like the plague.

The shortest way home is the longest way 'round....
[ Parent ]
Reason for charge: by BadDoggie (2.00 / 0) #4 Mon Aug 16, 2010 at 04:49:23 PM EST
Bad faith, illegal previous use of the video and spurious legal threats. But basically what notafurry wrote.

woof.

OMG WE'RE FUCKED! -- duxup ?

[ Parent ]
Sounds like a plan - by lylehsaxon (2.00 / 0) #7 Mon Aug 16, 2010 at 04:55:33 PM EST
Thank you everyone for responding.  Some common (or not so common?) sense right now is just what I needed to hear.

Thanks again!

Lyle


The shortest way home is the longest way 'round....
[ Parent ]
Additionally by BadDoggie (2.00 / 0) #9 Mon Aug 16, 2010 at 05:20:36 PM EST
You may want to include a warning that they'd better not use your video again in any way without written authorisation from you and if they do you'll be coming after them with the full force of law and a demand for $150K per incident as US federal law allows. If you don't have the US as a base and they're not in the US, assign the copyright to someone who is.

woof.

OMG WE'RE FUCKED! -- duxup ?

[ Parent ]
$150K per incident? by lylehsaxon (2.00 / 0) #12 Mon Aug 16, 2010 at 05:27:39 PM EST
Seriously?  That's got to be what this is all about then!  They had it on YouTube with unmoderated comments that generated about 3.5 million (not an exaggeration) hits.  The title was insulting and wrong and the comments were racist and uninformed etc.  And it damaged the marketability of the video on top of everything else.  $150K eh?  Hmmm......  Interesting....

The shortest way home is the longest way 'round....
[ Parent ]
$150K is what RIAA demands for a song by BadDoggie (2.00 / 0) #13 Mon Aug 16, 2010 at 05:30:22 PM EST
Per song/copyrighted work.

woof.

OMG WE'RE FUCKED! -- duxup ?

[ Parent ]
I don't have any personal experience by notafurry (2.00 / 0) #18 Mon Aug 16, 2010 at 05:58:51 PM EST
But an online acquaintance uses YouTube for video distribution and reports receiving approximately US$1 per 1000 hits. I don't think that's enough money for them to resist if you fight back.

[ Parent ]
Spurious legal threats? by ammoniacal (2.00 / 0) #22 Mon Aug 16, 2010 at 07:22:42 PM EST
"Settle now or we litigate" is SOP for the American system. In spite of the e-mail being a mirror-universe C&D letter, nothing adverse will happen to this lawyer.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
Sounds logical by lylehsaxon (2.00 / 0) #5 Mon Aug 16, 2010 at 04:50:13 PM EST
That sounds logical.  Regarding contacting the Bar - what are the logistics for doing that?

The shortest way home is the longest way 'round....
[ Parent ]
might be of use by clover kicker (2.00 / 0) #10 Mon Aug 16, 2010 at 05:21:40 PM EST
Thanks! by lylehsaxon (2.00 / 0) #15 Mon Aug 16, 2010 at 05:32:17 PM EST
I'll have a look at that.  The scoundrels are in the US incidentally.

The shortest way home is the longest way 'round....
[ Parent ]
from ABA's website by greyshade (2.00 / 0) #14 Mon Aug 16, 2010 at 05:32:09 PM EST

DIRECTORY OF LAWYER DISCIPLINARY AGENCIES 2010 

www.abanet.org should be able to handle any other questions you might have.

 



"The other part of the fun is nibbling on them when they get off work." -vorheesleatherface
[ Parent ]
Thanks! by lylehsaxon (2.00 / 0) #16 Mon Aug 16, 2010 at 05:34:33 PM EST
Thanks!  I'll have a look at that.  Need to get some sleep now....

The shortest way home is the longest way 'round....
[ Parent ]
My pleasure (nt) by greyshade (2.00 / 0) #19 Mon Aug 16, 2010 at 06:00:51 PM EST
null text

"The other part of the fun is nibbling on them when they get off work." -vorheesleatherface
[ Parent ]
IAWTP by ad hoc (2.00 / 0) #21 Mon Aug 16, 2010 at 06:17:37 PM EST
The copyright is yours to do with as you please. That includes doing nothing at all with it.
--
[ Parent ]
Just a thought by TheophileEscargot (2.00 / 0) #8 Mon Aug 16, 2010 at 05:12:35 PM EST
But does the guy know you live in Japan, and presumably can only be sued under Japanese law?

It sounds like he's issuing empty threats in the hope you'll panic, and to waste your time. Maybe you should insist that all future emails should be in Japanese so that you can show it to your lawyer (even if you don't have one). Then you can make him waste his time and money on translators, or back down since his bluff has been called.
--
It is unlikely that the good of a snail should reside in its shell: so is it likely that the good of a man should?

Good question - by lylehsaxon (4.00 / 1) #11 Mon Aug 16, 2010 at 05:22:47 PM EST
I had been assuming that they knew I was in Japan - but maybe  they don't.  If I do consult with a local lawyer, then having them send everything in Japanese could be a good thing.  They're the one's harassing me, so it would a reasonable request.  Really I don't want anything to do with these people....  That there was never an agreement is a fact, although I almost agreed to being paid - until I realized the wording of the contract was a trap.  At one point, I said something "sounded good" and was on the verge of agreeing, until I read it through carefully....

It certainly is irritating though.  It's my video - they stole it.  And now they're harassing me and threatening me.  Scoundrels!


The shortest way home is the longest way 'round....
[ Parent ]
that's not the case. by aphrael (4.00 / 2) #17 Mon Aug 16, 2010 at 05:50:33 PM EST
presumably can only be sued under Japanese law?

I am not a lawyer. What I am about to say is not legal advice. Consult with a lawyer if you are in a situation where this is relevant.

But, gods man, that's just not true.

At a minimum, you can be sued anywhere you have assets whose presence subjects you to the jurisdiction of the state in which the assets are located.

It may be expensive and more procedural trouble than it's worth. It may not be reasonable given the basis for the suit and the assets which can be attached.

But not being present in a country doesn't protect you from that country's legal system, generally speaking, unless your assets are also not present.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
AND EVEN THEN. by aphrael (4.00 / 1) #20 Mon Aug 16, 2010 at 06:14:40 PM EST
it may not - it just may turn out to be impossible for that country to enforce its judgments unless you show up unexpectedly within their borders.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
first thing to do by gzt (2.00 / 0) #23 Mon Aug 16, 2010 at 09:40:53 PM EST
think back very carefully about whether you've said anything to them at all that could be construed as letting them use it. if the answer is no, then fuck 'em. others have given you good advice about that. if the answer is yes, what exactly did you say?

Reems of e-mails.... by lylehsaxon (2.00 / 0) #24 Mon Aug 16, 2010 at 10:14:20 PM EST
They began using it with no contact whatsoever, and after they ignored my request to take it down, and then Google took it down for me, they attempted to claim it was a "wrongful take down notice".  I sent off an impassioned e-mail to Google saying, basically that is was totally wrong and it was my video etc.  A month or two passed and then I started getting more e-mails from the guy - which went on and on until he agreed to pay, at which point they (the initial e-mails were all from the head guy at the company) sent me a convoluted contract that I said I wouldn't sign, because it wasn't in English.  More e-mails followed, leading to him sending a simplistic text that didn't seem outlandish, so I said it looked good and I'd sign it *after looking it over again in the morning* since it was the middle of the night, I was half-asleep at the time and stressed out about other things at work, etc.  When I reread it with a clear mind and in a wakeful state, I realized that it was a trap, so I backed out - without ever signing anything.

So - at one point, I said that what *they* had written looked okay (and that I would sign later after going over it again), but I have never said from my end that it was okay to use my video.  In fact, that was the sticking point.  The contract I almost signed said I had given them permission to use the video for the period they had used it, and since it was a period of time fully in the past, I thought I would go along with it, but then I noticed that the usage dates were such that they would have predated my request for them to stop using my video, which would have invalidated my request to stop using it.  I reworded the contract then, saying very clearly that the money was to be compensation for their illegal use of it (and it wasn't very much money, BTW), and it in no way permitted them to use my video.  This they balked at, and then the guy started having his lawyer harass me.

All of this is on file somewhere....


The shortest way home is the longest way 'round....
[ Parent ]
allrighty then. by gzt (2.00 / 0) #28 Tue Aug 17, 2010 at 09:42:21 AM EST
dick 'em. dick 'em in the ear.

[ Parent ]
I called that lawyer at that number, Lyle. by ammoniacal (2.00 / 0) #25 Mon Aug 16, 2010 at 10:14:55 PM EST
He says he's never heard of you.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

That's strange... by lylehsaxon (4.00 / 2) #26 Mon Aug 16, 2010 at 10:17:45 PM EST
Did you ask for Aabbc Bbdde?

The shortest way home is the longest way 'round....
[ Parent ]
I did by ammoniacal (4.00 / 2) #27 Tue Aug 17, 2010 at 12:25:43 AM EST
but I pronounced it "Mangrove Throatwarbler."

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
Bullshit lawyer tactic by Gedvondur (2.00 / 0) #29 Tue Aug 17, 2010 at 10:19:47 AM EST
It's a tactic designed to play to your ignorance.

Email is not a contract.  Tell them "NO" fuck off and die.  You explicitly do NOT have permission and email exchanges DO NOT constitute a contract.



Gedvondur


"Adrenaline dumbs pain" - xth
Email *is* a contract by anonimouse (4.00 / 1) #30 Tue Aug 17, 2010 at 10:44:28 AM EST
....but only if it is clear that one party is accepting the terms offered by the other in the previous communication.

As long as the elements required to implement a contract (offer,acceptance, consideration, intention to create legal relations) are present in an email exchange (or an exchange over any other medium for that matter including verbal provided it is not disputed that the elements are present), it is legally binding.

Lyle is ok, providing his email where his  "it looks ok" clearly also includes the "let me think about it overnight" part.


Girls come and go but a mortgage is for 25 years -- JtL
[ Parent ]
From what point? by lylehsaxon (2.00 / 0) #31 Tue Aug 17, 2010 at 12:05:32 PM EST
It's been my understanding that a contract is not binding until both parties have signed it.  How can preliminary discussions be considered a legal contract?

The shortest way home is the longest way 'round....
[ Parent ]
You should know that by ammoniacal (2.00 / 0) #32 Tue Aug 17, 2010 at 02:18:21 PM EST
even most verbal agreements may be legally binding contracts, provided that the other aspects of the contract are met (Offer, Acceptance, Mutual Consideration, etc.). In your case, the clincher may be a judge examining your statement about it "looking good." In any event, attend any court dates with an attorney so they don't get a default judgment against you. Also have an attorney if they want to depose you. Good luck!

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
But... different intent... by lylehsaxon (2.00 / 0) #36 Tue Aug 17, 2010 at 09:45:19 PM EST
But the intent was different.  I was on the verge of accepting payment for the period on which they illegally posted my video, but they keep insisting that I rescind my original request to have it taken down.  This just feels wrong, as I was fully within my rights as the sole copyright owner to request it be taken down.  I thought we were working towards an agreement where they compensated me for their illegal use of the material and - since I still don't want them using it - nothing further needed to be done.  Why would it be necessary or desirable for me to rescind my original request, which I fully within my rights to make?

Is my logic there amiss?


The shortest way home is the longest way 'round....
[ Parent ]
Where I think you made a wrong turn: by ammoniacal (2.00 / 0) #37 Wed Aug 18, 2010 at 02:19:53 AM EST
"I thought we were working towards an agreement where they were compensating me . . ."

IANAL, but I sure as hell wouldn't have tried to navigate that swamp without a lawyer right there with me. I think you should discuss this with an IP attorney who's admitted to the California Bar. Don't let the 'gators bite you.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
It seems like.... by lylehsaxon (4.00 / 1) #38 Wed Aug 18, 2010 at 03:02:00 AM EST
It seems like the modern legal system is set up to persecute the innocent and protect the guilty.  Steal someone's money, use part of that to hire a team of blood-thirty lawyers, and then go on a thieving spree, always feeding some back to the attack dogs to help steal ever more.  Parasites rule - everyone else suffers....

The shortest way home is the longest way 'round....
[ Parent ]
Yes, that's correct. by ammoniacal (2.00 / 0) #39 Wed Aug 18, 2010 at 03:45:09 AM EST
Lawyers sign my paycheques, so that's all the hand I'll bite for now.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
that's generally not the case. by aphrael (4.00 / 1) #34 Tue Aug 17, 2010 at 03:47:17 PM EST
IANAL. This is not legal advice. I can't give legal advice.

But: shrink-wrap contracts are legally binding. (http://en.wikipedia.org/wiki/ProCD_v._Zeidenberg)

There's a case with no signatures at all.

Signatures are a proxy for intent to form a contract, and it's very hard to dispute them. But they aren't required; what's required is evidence of intent to form a contract.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
note that by aphrael (4.00 / 1) #35 Tue Aug 17, 2010 at 03:56:36 PM EST
i'm discussing the basic principles of anglo-saxon contract law.

i have no clue whatsoever what Japanese contract law is.

I would presume your interlocutor is not Japanese, though, in which case there's probably some international treaty which covers it.

I would consult with a lawyer.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
I don't see any reason by aphrael (4.00 / 1) #33 Tue Aug 17, 2010 at 03:45:01 PM EST
why email couldn't form a contract.

you'd need some evidence that it was intended as a contract and that there was some consideration for the promise, but email seems just as legitimate as any other form of communication.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Threatened for not Giving Away My Train Video? | 39 comments (39 topical, 0 hidden) | Trackback