Legal:DMCA/Estelle Maersk

From:	rgarbarini@garbarinilaw.com
To:	legal@wikimedia.org
Date:	February 5, 2019 at 14:23:28 UTC
Subject:	Third and Final D<MCA Notice
Content:	File:Maersk 2011-09-23 1316804100 (6955076278).jpg File:Estelle Maersk.jpeg
An attachment to the below has been uploaded as DMCA Estelle Maersk.pdf.
From: Richard Garbarini <rgarbarini@garbarinilaw.com> Date: Tue, Feb 5, 2019 at 6:23 AM To: <legal@wikimedia.org> Legal: This is the third, and final DMCA Notice. If Wikimedia Commons continues to refuse to disable the infringing images, we will bring suit. Richard Garbarini GARBARINI FITZGERALD P.C. 250 Park Avenue 7th Floor New York, New York 10177 Office : 212.300.5358 Fax : 212.731.0278 www.garbarinilaw.com certa bonum certamen CONFIDENTIALITY NOTE -- THIS E-MAIL TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL OR EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this transmission is NOT the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the GARBARINI FITZGERALD immediately by telephone at 212.300.5358 and delete this message from your system. ---------- From: Wikimedia Legal <legal@wikimedia.org> Date: Tue, Feb 5, 2019 at 3:21 PM To: Richard Garbarini <rgarbarini@garbarinilaw.com> Dear Mr. Garbarini, My apologies that you did not receive an answer earlier, the Foundation was hosting an all-staff conference last week and we were therefore delayed in reviewing incoming requests. Looking at the images in question, the issue here appears to be that there is some debate about whether the images in question were licensed to Wikipedia or not. According to your letters, the photographer did not license the images. However, the uploaders of the images assert, with some authority, that they are licensed under a Creative Commons CC BY 2.0 license. See for example the note on https://commons.wikimedia.org/wiki/File:Estelle_Maersk.jpeg The CC license, once used, is not revocable and allows the image to be used freely with proper attribution, even if it is removed at its source. While checking the source link in the above example page does lead to a 404 error, the page also has a confirmation from August 9, 2013 that the source was checked and it was confirmed that the image was licensed under the Creative Commons license. This was done by a computer program, the Magnus bot mentioned there, which you can read about at https://commons.wikimedia.org/wiki/User:File_Upload_Bot_(Magnus_Manske) I will note that the bot creator admits that it's possible that some images with questionable copyright could be uploaded, but the functioning of the bot is such that if the original photographer of the image did upload it to flickr, it is very unlikely that the bot would make a mistake in confirming the relevant license. As such, if you could provide more information about the situation in 2013, this would allow us to evaluate the situation better and properly comply with this DMCA request if the images were in fact improperly licensed. I would, in particular, ask you to confirm as part of the statements in your notice under penalty of perjury that the image was, in fact, not licensed despite the record on Wikipedia that appears to state that it was. Once we have that information, we can take appropriate action on the DMCA notice. Sincerely, Jacob Rogers Senior Legal Counsel Wikimedia Foundation NOTICE: This email message and all attachments transmitted with it are intended solely for the use of the addressees and may contain legally privileged, protected, or confidential information. If you have received this message in error, please notify the sender immediately by email reply and please delete this message from your computer and destroy any copies. You must not copy or disclose the contents of this message or any attachment to any other person. ---------- From: Richard Garbarini <rgarbarini@garbarinilaw.com> Date: Wed, Feb 6, 2019 at 2:45 AM To: Wikimedia Legal <legal@wikimedia.org> Mr. Rogers: Thank you for your considerate response. By way of background information. Engine manufacturer Wartsila retained my client to photograph the maiden voyage of the container ship the Estelle Maersk. The images were taken from a fixed wing aircraft. By law, my client could not fly within 500 feet of the vessel without permission from Maersk. My client called Maersk and received permission along with a request to see the images for possible licensing. My client sent the images to Maersk, but no license for any external use was ever entered. Years later, Without license or permission from my client, the Head of Social Media, Mr. Jonathan Wichmann, posted the images to the Maersk Flickr.com account. Once my client discovered the illegal use of the images, I was retained and oversaw the the removal of all of my client's copyrighted images from Flickr.com. Now we are faced with the last remaining issue, to wit, the copyrighted images which were taken by Wikimedia from Flick.com. I must disagree with your statement that no 404 errors appear when the original files are accessed. Again, all images have been removed from Flickr.com. That includes the illegal Maersk uploads as well as all uploads by other individuals or entities (who, by the way, copied the images from Maersk. All links show a 404 error with the exception of the links to Wikimedia. For instance, the below link shows a 404 error on Flickr. https://commons.m.wikimedia.org/wiki/File:Maersk_2011-09-23_1316804100_(6955076278).jpg The author for the second image, also shows a 404 error on Flickr.com. See https://commons.m.wikimedia.org/wiki/File:Estelle_Maersk.jpeg. I have no idea what original image or images you are looking at, but if you could kindly provide any original links that are still active, I will gladly file suit against those individuals or entities immediately. As you know, we have settled one matter with Maersk regarding their illegal upload of my client's very valuable images, and we are in the process of an arbitration as well. The basis of the arbitration is Maersk's failure to timely disable all of my client's copyrighted images. We are very reasonable people (both my client and myself). We only demand Wikimedia remove the images not only because they are in violation of 17 USC 206, but because they are damaging my client considerably. Provided the copyrighted images are removed immediately, we can consider this matter closed. Regrettably, if Wikimedia elects to continue to publicly display my client's copyrighted images, we will have no choice but to bring a suit against Wikimedia. Frankly, it would be within my client's right to file right now. But that is not what my client nor I would like to do. We have great respect for Wikipedia and the service it provides. I don't believe litigation would be in either parties interest. Kindly call me at 212.300.5358 with any questions, or if you need additional information. Again, I don't want to see this matter go to the next level. Richard Garbarini Garbarini FitzGerald P.C. ---------- From: Richard Garbarini <rgarbarini@garbarinilaw.com> Date: Wed, Feb 6, 2019 at 5:54 AM To: Wikimedia Legal <legal@wikimedia.org> SUBJECT TO FRE 408 Mr. Rogers: There is one more significant point. You requested information on what changed in 2013. <redacted> was hired in 2011 to be the Head of Social Media Maersk. Mr. <redacted> was terminated in 2013. See <redacted>. Mr. <redacted> was the individual responsible for posting my client's copyrighted images on Flickr and Instagram. See <redacted>. This was all part of an aggressive social media campaign. See <redacted>. In 2006 Maersk paid 140 British Pounds to use the Estelle Maersk images FOR INTERNAL PURPOSES ONLY. Maersk was expressly prohibited from any external, public display, or commercial uses. Mr. <redacted> apparently did not read the prohibitions when he posted my client's copyrighted images. This Creative Commons license was never authorized by my client. In fact, it was expressly forbidden. But the images on Wikimedia are creating a significant problem for my client. That's why we have to make sure they are disabled, by ant means possible. All that being said, we have no interest in going after your company. I personally have donated money to Wikipedia because I consider it a public trust. To be candid, it would really bother me if I have to file an injunction against Wikimedia, or file an action. If you believe you can't disable the images as a matter of policy, please call me, so we can explore every avenue that would avoid litigation. Thanks, Richard Garbarini GARBARINI FITZGERALD P.C. 250 Park Avenue 7th Floor New York, New York 10177 Office : 212.300.5358 Fax : 212.731.0278 www.garbarinilaw.com certa bonum certamen CONFIDENTIALITY NOTE -- THIS E-MAIL TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL OR EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this transmission is NOT the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the GARBARINI FITZGERALD immediately by telephone at 212.300.5358 and delete this message from your system. ---------- From: Wikimedia Legal <legal@wikimedia.org> Date: Wed, Feb 6, 2019 at 5:33 PM To: Richard Garbarini <rgarbarini@garbarinilaw.com> Dear Mr. Garbarini, Thank you very much for providing the detailed explanation. Given the aggressive use of the images on social media and your removal of them from Flickr in this context, we can also grant the DMCA to remove them from Wikipedia here. I'll pass this along to our legal operations team and will let you know when the removal has been effected. Sincerely, Jacob Rogers Senior Legal Counsel Wikimedia Foundation NOTICE: This email message and all attachments transmitted with it are intended solely for the use of the addressees and may contain legally privileged, protected, or confidential information. If you have received this message in error, please notify the sender immediately by email reply and please delete this message from your computer and destroy any copies. You must not copy or disclose the contents of this message or any attachment to any other person.