A Warning To Webmasters

or

How I made £27k from two evenings tracking down copyright infringements

In November 2007 this site was shut down rather hurriedly under legal advice following a claim for damages under the Copyright, Designs & Patents Act, 1988, as added to and amended by the Copyright & Related Rights Regulations 2003, the Electronic Commerce (EC Directive) Regulations 2002 and other related legislation. The following piece is offered as a warning to others who might be about to fall foul of the same legislation.

Clydesailing, like not a few other sites has previously taken a fairly casual view of appropriating photographs from elsewhere on the WWW. We have previously taken the view that a small scale not-for-profit site with a limited readership such as this would not be a target for litigation. Usually the photos we have stolen are by professional sailing photographers in other countries and we have posted only cut down low resolution images which would be useless for downloading and printing. We were much more careful with sailing photographers in the UK in the knowledge that their work is on sale to local buyers. Occasionally we may have posted a low resolution sample but such a sample usually has a highly visible logo across it and we almost always attempted to have a direct link to the originating website. We have taken the possibly mistaken view that any publicity is not bad publicity and in general there have been few upsets. On a rare occasion we have been asked to remove an image which we have always done immediately with due apology. By and large, sailing photographers are enthusiasts for sailing and as an enthusiast site we never felt at any risk of being sued. However this lax attitude to copyright legislation can lead to trouble as I found out to my cost.

The photographer who pursued Clydesailing over the theft of an image is not a specialist sailing photographer. He is a specialist in taking high quality aerial photographs by remote control from a film camera mounted on a kite. What was claimed in 2006 to be his most successful photograph can be seen here and you can see examples of his work on his own site www.197aerial.co.uk. The image which Clydesailing used was an aerial photograph of Troon Marina from the landward side, lifted from that site, resized and degraded and used as a relatively small image to illustrate the piece we ran on the upcoming CCC Troon Race back in June 1997. The proprietor of the 197aerial.co.uk site, one Alan W. Mackie makes it quite clear that all of his images are copyright, that 'all moral rights are asserted' and that prices for permission to use any of his images can be obtained on application. Whilst the terminology is doubtless correct in the strictly legal sense, one might possibly conclude that the casual image thief unfamiliar with the assertion of 'moral rights' might be better deterred by a more upfront statement that anyone found using an image without paying for it will be sued but presumably there are reasons for this such as making the site appear unfriendly. Nevertheless, should the visitor to 197aerial.co.uk take the trouble to inspect the page on 'copyright' (which is linked from every page) it is manifestly clear that no permission to use any images without payment will be given and that Mr Mackie's intention to defend and pursue his rights can be in absolutely no doubt. However, unlike the work of many professionals and contrary to the general trend of professional advice, the 197aerial images do not have any banner or watermark across them to denote their origin and make them less appealing to image thieves but details of their origin are present in the EXIF metadata which is concealed as part of digital images if you know where to look. It is therefore all too easy to ignore the warnings, do a right click and save-as. In doing just that, late one night, in a hurry,and foolishly ignoring the warnings, Clydesailing was in contravention of the legislation listed at the top of this page. Much later it turned out to be, if you like, a fair cop.

Consequently it was with some surprise that I received an email, followed the same day by a recorded delivery letter stating, in impressive legal terms, Mr Mackie's recognition of the offending image as his own, a demand for it to be removed immediately with a threat of immediate court action to be instituted without warning if I did not and a statement that a claim for damages would follow in due course. There was a further statement that if I failed to meet his claim for damages, court action would follow and that on the basis of previous experience Mr Mackie would be likely to be successful. A quick Google search revealed that this was indeed likely to be true and following up a contact revealed that Mr Mackie is zealous in pursuit of his rights as of course he is entitled to be. It is important to stress that whatever one might think of the tactics, the position of the image thief, where copyright is clearly asserted, is essentially indefensible.

I subsequently received the 197aerial.co.uk price list dated February 2007 and a demand based on the commercial web use of an image for up to 12 months (£400) plus an additional surcharge for damages under the Moral Rights section of the Act. It was clear to me that negotiation attempts on the basis that Clydesailing is not a commercial site would be to no avail and given that the legal position was quite clear and to avoid the trauma of court action and potentially much greater costs I felt I had no real choice but to pay up under the terms stipulated.(Incidentally there would have been an additional charge of £250 for each additional year or part year and for a non-commercial website the equivalent charges are/were £250/£150). There is an email link on the 197aerial.co.uk site for you to enquire about current prices.

The first message then to anyone running a website, no matter how small or apparently insignificant, is that illegally purloining copyright images from other sites is ill-advised and can in fact lead to legal action for damages. It is easy to prove that an image has been used as web archives hold all sorts of obsolete pages. Defending your action against somebody who knows the legal score is not going to be easy and may well be costly. We understand that Mr Mackie represents himself and in such event the cost of instituting action in the Small Claims Court is negligible. The pursuer therefore has nothing to lose but the time and effort involved. Moreover, since 2008 the maximum sum that can be claimed through the Small Claims Court has risen to £3000.

But who is going to find out that I stole an image for my obscure website? This is the interesting bit. What Mr Mackie subsequently revealed, was that he is a founder member of a group of photographers who track and pursue copyright thefts of their own and other group member's work. Naively I hadn't realised that such activities exist but clearly they do. I don't know what techniques are employed but Google Image is pretty powerful and there are also commercial image tracking services. Mr Mackie, it turns out, has been successful in numerous copyright actions in Scotland. Clydesailing is by no means the first to fall victim and doubtless will not be the last.

So the second message to webmasters is - Don't think that nobody will ever find your stolen photo. There may be someone out there looking for it and and the opportunity which that brings to sue you. Use of copyright photographs without permission is just asking for trouble.

Furthermore I would urge that you think carefully before you create a link from your own website to any image present on 197aerial.co.uk

Update

As more and more instances of Mr Mackie claiming for damages come to light it would appear, given the time it takes to pursue several individuals simultaneously, that serial litigation may well be the principal source of income of 197aerial. In more recent times it has been speculated by some victims, particularly in view of the continued absence of any visible watermarking on the images and also the numerous successful court actions that the 197aerial website exists primarily to induce website creators to steal photographs for their own use - despite the plentiful warnings that 'all moral rights will be asserted.' It would however be impossible for us to comment on the veracity of such speculation.

It is unfortunate that most people who find this page after googling for 197aerial have already had a notification by Mr Mackie much along the lines of what I have described above. It would appear now however that an official 197aerial price list is not generally available and in recent times it is the view of several who have had a claim made upon them that the sum demanded is considerably in excess of the worth of the original photographs. (If you are attempting to compile a defence, having a look at the NUJ suggested fees page may give some rudimentary guidance.) Others, using tracking techniques, are of the view that Mr Mackie may visit a website repeatedly over some time before instituting a claim.

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