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Copyright Online Piracy

Photographer sues Imgur and the Internet Retaliates

DMCA and the Pirate Bay

The Internet can be a harsh mistress should you get on its bad side. Just ask the photographer Christopher Boffoli, who just had his entire life’s work uploaded to file-sharing site, the Pirate Bay, in retaliation for suing the photo site Imgur for copyright infringement.

Boffoli created a series of fine-art photograph entitled Big Appetites, in which tiny, meticulously detailed figures pose in real food environments. The series references both a cultural fascination with tiny things, as well as an American enthusiasm for excess, and the Internet fell in love with them. Love in the context of the Internet means an abundance of sharing on social media, usually without any attribution to the photographer.

Boffoli’s makes his money by licensing and selling his photos. He became quite upset to see so much of his work being copied without his permission, which he viewed as potentially hurting his income stream, so he decided to take action. According to Torrent Freak, Boffoli has filed lawsuits against Twitter, Google and others, which were settled out for court under undisclosed terms. Most recently, Boffoli sued Imgur for posting 73 instances of his work.

Safe Harbor and the DMCA

Companies like Google and Twitter are protected under the Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA), so are difficult to sue. The DMCA protects only those sites that are merely hosts, and not actively involved in generating or promoting the content. To qualify, they must register as a Safe Harbor company with the Copyright Office and provide a DMCA specified mechanism for users to request removal of infringing material.

Copyright is strict liability law. If anyone posts copyrighted material without authorization, they are liable regardless of the reason for infringing. Without the safe harbor provision; website owners would be liable anytime a user uploads infringing material. The practical result would be sites inundated with lawsuits, effectively making it impossible to operate. The DMCA alleviates that burden by giving qualifying websites immunity from any copyright lawsuits.

The DMCA procedure for takedown requires that any infringing material be removed upon request. Should the original uploader disagree with the takedown request, they can make a counter-claim at which point the site can reinstate the material until the outcome of a lawsuit on the matter.

Imgur Never Removed Boffoli’s Work

In the case with Imgur, Boffoli requested removal of 73 infringing works, received acknowledgement but the work was never removed. Because Imgur didn’t following DMCA procedures, Imgur may have lost its Safe Harbor status. Without immunity, Boffoli could sue. As well, Boffoli had registered his work with the U.S. Copyright Office prior to the infringements. He can, therefore, receive statutory damages, which range from between $750 and $30,000 per infringement, as well as have his legal fees paid for by Imgur should he prevail. More importantly, since Imgur was aware of the infringements and did not remove them, the infringement could be considered willful, which increases the statutory damages up to $150,000 per infringement. So, even on the low- end, Imgur could be liable for over $2 million.

While that all may sound good for Boffoli, he didn’t consider the backlash that could result from his series of lawsuits. There is a strong movement for a more open Internet, not hampered by Copyright; where sharing is the norm, as long as nobody profits from the copied works. The entire social media space is built on sharing with minimal harm to any authors, and may very well increase sales due to the free marketing and exposure. Some people in that group, who took Boffoli’s actions as a form of censorship, saw the Imgur lawsuit as the last straw, despite his legal right to decide how to present his photos.

One user retaliated by uploading Boffoli’s life’s work, 20,754 photos, to the Pirate Bay, and others followed suit by downloading and sharing the photos. Based on comments from users, it seems that the upload was in direct retaliation for his lawsuit against Imgur. One commenter said, “Sued for 73 images, got 20,754 uploaded to TPB, LOL. About the Big Appetites series, if I ever get my hands on a copy, I’ll scan it at 600 dpi and upload it here, have fun trying to censor the internet, Boffoli ;D.” Another chided, “Gosh, it looks like copyright trolling is a business model that may generate the occasional, unintended consequence.”

The moral of this story is that in an anonymous environment like the Internet, taking actions, even ones that are legal, may have unintended consequences. Sometimes it pays to consider alternatives. Maybe Boffoli had other options. It doesn’t take too many people to turn the situation against someone. While its true that Imgur users had posted 73 photos, what is the real harm? Did Boffoli’s see a decrease in sales, or did seeing his photos on Imgur and other social media cause people to buy his photos and books? Still, it is Boffoli’s right to decide whether he wants his photos shown on Imgur. Should he have to accept the infringement just because a few angry Internet users wanted to steal his work?

What do you think about Boffoli’s actions? Please let us know in the comments section below.

Boffoli v. Imgur

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

6 Comments

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  • “Maybe Boffoli had other options”? You are right! He did. And, he exercised that OTHER option by sending a DMCA removal request, which was ignored. Had Imgur simply complied, then this whole thing could possibly have been dropped.

    I think that many photographers understand that hosts can not always control their subscribers, however, if the host fails to take the appropriate action, it’s just ANOTHER problem.

  • I have to agree that Christopher Boffoli seems to have misunderstood the above article, and I think the only one of his complaints that might have substance is the characterization of his “life’s work” being posted in retaliation for his actions with regard to protecting his copyright.

    • I can see that. It was the way the Pirate Bay upload was being characterized around the web given the large amount of images in the file. I didn’t want to download it of course, to see what was in it.

  • How do you write something like this, making declarative statements, without ever bothering to verify the information? Some of what you’ve written is factually inaccurate. This story is nothing but hyperbole and you don’t really serve your readers by regurgitating nonsense. I realize people love Internet revenge stories but this one’s not really true. First, 99% of what was posted to bittorrent is pulled directly from my personal and travel images that I’ve posted to Flickr and that anyone can already see if they go to my page. The rest is low-res images gathered up from around the Internet where my work has been published. To say my “entire life’s work” was uploaded to file sharing sites is completely untrue. It is also a bit overly cynical to characterize my legal actions as being about damages. Imgur didn’t upload my work to their site. One of their users did. Considering that there are about a billion websites on the Internet, and that my legal team has probably filed 4 or 5 lawsuits in the past three years, I’m hardly out to censor the Internet. But I do think that sites with multi-million dollar valuations, who profit from the existence of my work on their sites, should actually comply with the law when properly and politely asked to remove large groups of images they don’t have permission to use. As for this revenge story, this is nothing more than the work of some disempowered, anonymous coward who wanted to feel powerful for a change and thought they’d make me a target. But I’m certainly not going to let some bully change the way I go about defending my copyrights.

    • I am not sure where your anger is coming from. I didn’t make declarative statements. Some of this comes from articles while some came from your complaint. The article clearly says that you have the right to defend your work. It merely is trying to show that the internet, being anonymous can have pushback which can be detrimental. I do not condone the actions of the person who put your work and I believe I stated both sides.

      The article is using this situation as a case study to let people know that litigious actions aren’t always the best course of action. They may or may not be for you. That is your decision. But I am an attorney and have seen many cases where clients wish they had never sued.

      As well, the article doesn’t say you are wrong or right, it just poses questions. I have no idea whether you felt that uploading your photos was harmful or not, however, the people who uploaded them and the hundreds of people who downloaded them also do, which is a considerable number of people. Other photographer in your situation may not have wanted their photos uploaded to the Pirate Bay. So it is a cautionary tale. And I stand by the lessons it tries to impart.
      Should it stop you from suing? That is purely your choice. As I mentioned, Imgur didn’t respond to your takedown request and that probably alleviates them from hiding behind the DMCA. That fact allows me to tell my audience about the DMCA rules in case they ever get into that kind of situation.

      If you choose to sue companies like Goole and Imgur, then you have to expect people will write about it and not every author may write the way you wish. Disparaging an article like this one isn’t helpful.

      However, I did forget to attach your complaint to the article for my audience to read, which I have fixed.

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