Italy Bans Photo-Crawling Service From Sending Aggressive ‘Legal’ Claims
Photo 190358092 © Sergei Babenko | Dreamstime.com
In a hallmark move, Italy’s market regulator has prohibited a photo-tracking program and its lawyer from sending out “misleading” copyright takedown notices to small businesses and taking advantage of their unfamiliarity with intellectual property law.
PhotoClaim, a Warsaw-based reverse image search tool that scours the web to identify work by photographers who engage its services, has been fined €35,000 (US$34,000). Meanwhile, its German lawyer whose aggressively-worded letters were at the center of this decision will have to shell out €10,000 (US$9,700). Both the company and its litigious representative have been ordered to immediately withdraw their activities in Italy, as shared by journalist Giovanni Franchini.
The service and its lawyer operate in ways that can be deemed by some as “copyright trolling,” in which copyrights are enforced on unsuspecting individuals for opportunistic gains, instead of protecting the holder’s interests.
Letters from the same lawyer have been shared around by other users abroad (see here, here, and here), so it seems that their techniques aren’t just being applied in Italy. As seen in those documents, intimidation tactics include threatening to file a criminal complaint in German court (it doesn’t matter where they live) if compensation is not given soon. Moreover, recipients are told that their fees will get much steeper if the case progresses in court—a potential life-or-death situation for businesses on tighter budgets.
Intriguingly, some people have also reported never receiving the initial cease and desist in their inboxes due to issues like spelling errors in their email address, which allegedly reduces their time to react, resulting in a further bump in interest charges.
Per a bulletin published October 3, the Italian Competition & Market Authority also convicted PhotoClaim for its “failure to supervise” the attorney’s professional conduct, which the regulator noted was not compliant with the high standards of “diligence required by professionals in the legal protection of online copyright.”
Also, the bulletin highlighted that “Photoclaim receives from the photographer a percentage between 35% and 45% of the sum paid as compensation for damages, as well as 50% of the sum paid as legal fees. The lawyer receives the remaining 50% of the legal fees.”
Click to view enlarged version
Screenshot of bulletin by the Italian Competition & Market Authority dated October 3, 2022, with English translation on the right. Click to view enlarged version
The authority began investigating PhotoClaim and the lawyer in January after receiving a complaint from a business that had gotten one of their takedown notices.
The latter, pressured to pay up €3,000 (US$2,900), relented but bargained the amount down to €2,000 (US$1,900). However, another letter came in demanding an additional €6,000 (US$5,800) for violating the cease-and-desist order. The recipient asked to settle for €1,000 (US$970) and coughed up the extra money, but not without raising the matter to the regulator.
Accordingly, a similar photo to the one used by the plaintiff can be licensed online for anywhere between €9.99 and €360. The watchdog thus deemed PhotoClaim and its lawyer’s fees to be “disproportionate” and against “objective criteria.”
The fines were apparently determined by how much they claimed to have earned from their disputes in Italy—an eye-for-an-eye retort, if you will. The authority revealed that PhotoClaim had declared its turnover in Italy to be over €40,000 (US$39,000) in 2021, while the attorney said he had raked in over €11,000 (US$10,700).
As of the time of publication, PhotoClaim shares on its website that it has detected a total of 345 cases and recovered €609,000 (US$593,500) in Italy so far. Meanwhile, it says it has captured 456 possible infringements in the United States, where it has retrieved €1.05 million (US$1.03 million).
The Italian Competition & Market Authority has now formally prohibited both PhotoClaim and the lawyer from further dissemination or continuation of what it has ascertained as “unfair commercial practice” in the country.
With the nation taking the first steps to shake off such processes, it might only be a matter of time before the rest of the world catches up.
If you’re a user or photographer living in the United States who believes they have been unfairly served in a copyright suit, you may wish to file a claim with the US Copyright Claims Board, a tribunal newly established within the US Copyright Office this year to look into disputes seeking damages of up to US$30,000. The board aims to be a faster, more accessible, and cheaper alternative to settling matters in a federal court, and is open to anyone with or without legal representation. There will be no court appearances required for claims filed in this tribunal, though pro bono assistance is also available.
Those living outside of the US should reach out to their respective Copyright Office or local police for guidance.
[via Giovanni Franchini, Help Consumatori, Italian Comeptition & Market Authority, images via various sources]
