ArtId Art Blog
It's beginning to appear as though the Web comes to us with a bigger price tag than we all might have imagined. I've been writing about the Internet for Art World News for nearly a decade, says columnist Todd Bingham, and I have repeatedly observed that the advantages to having instant information available can be sweet--and sour. Consider this: We now live in a world where I can go online and look at artwork that was created by an artist living on the other side of the Atlantic, in a small town in Denmark. The painting was completed only yesterday and already I know about it! And what's more, I can purchase that work of art directly from the Danish artist and have it shipped to me. All of this, without leaving my office. Isn't that amazing? But wait, that's not all! If I want to, when I receive the painting, I can have it digtally scanned amd make giclees of it that I sell on eBay. What? Pay the artist? Why should I do that? I own the painting, don't I? I paid for the prints, didn't I?!
Of course we know my goofy, Danish scenario, while not uncommon, only scratches the surface of the variety of incalcuable volume of copyright infringements that occur on the Web even while I type these words. While it's probably true that a good many of these violations are committed unknowinly out of sheer ignorance, it's also true that many are perpetrated by what has come to be known as "rogue" websites--that is to say, illegally operated, often-moved, offshore websites that are engaged in illegal e-commerce.
"Not exactly hot news," you think. "we all know about this." Sure, we cluck and shake our heads when we hear about the porn sites, gambling sites, or illegal music download sites. Am I the only one whose reaction is somewhat like watching the Middle East horrors on CNN: awful, horrible, deplorable but, still...it's "over there."
"Oh, that stuff just happens to other people," we think. "That doesn't affect me." But what happens when it does? What happens when we realize that not only are we being ripped off, it's happening with some regularity?
Admittedly, the subject of Internet fraud pales in comparison to the horrors of the Mideast conflicts raging as I write this, but I'll push on, anyway.
What Is Being Ripped Off?
Suspicious that knockoffs of its jewelry were being widely sold on eBay, The Tiffany Company secretly purchased several hundred items from the auction site which purported to be genuine. Tiffany's discovered that three out of four of the items were fakes. As a result, in 2001, Tiffany's tried suing eBay for "facilitating the sale of counterfeit Tiffany products." They lost. eBay's defense was a predictable position: They claim that the auction site is nothing more than a marketplace and that it's unreasonable to contend that they should be required to police each of the gabillion (the court records probably did not use that word) listings the site offers every day.
This defense worked O.K. and resulted in the 2001 Decision of Hendrikson vs. eBay when a federal court ruled that eBay was protected from copyright claims under the Digital Millennium Copyright Act (DMCA) "as long as eBay removes protected material auctions once they are notified by the copyright holder."
These notifications, called "take-down notices," are rife. As many as 10,000 trademark infringement sales a month are slated for removal on eBay alone.
Apparently having recovered from the loss of Round One, Tiffany's is now counterpunching with a new suit over trademark infringement, claiming that eBay is profiting from an activity that essentially erodes their brand, reduces the perceived value of their product, and thereby diminishes their ability to conduct business. According to Frank Fortunator of the e-commerce forum (ecommerceguide.com) "...this is a complaint echoed by online watchdog sites and many eBay users; the point being that eBay profits from faudulent, illegal activity on its site, thus, in effect, becoming a facilitator of fraud." Now that got my attention, because the outcome to this issue really does land squarely in the fine art arena.
I'm not sure which of the two contenders--eBay or Tiffany's--has the deeper pockets, which I suspect is probably the criteria to use when placing your bets.
Do They Hire Dick Tracy?
"How does Tiffany's know about all these fake eBay listings?" you might wonder. Good question. I also was curious. Tiffany's not only has people who monitor the activity of their brand on eBay, they observe it on the entire Internet, world wide. For this, they utilize the service of a far reaching and sophisticated company calling themselves GenuOne From their website schpiel: "GenuNET (one of their product packages) is a secure, web-hosted enterprise brand-protection dashboard which provides sales, marketing, security, and legal teams with online intelligence regarding brand misuse and product pricing." In short, Tiffany's pays a digital pit bull to scour the Internet for them.
GenuOne using highly refined and, I'll wager, expensive software, makes note of copyright infringement violations of Tiffany's brand, or offerings of fake and fraudulent "Tiffany" merchandise. In my research for this article, I found that almost all the "big boys," who are protective of their international "brand," have a similar program in place.
Must be nice. Deep pockets can stave off a lot of potential tarnish to those Tiffany trinkets. (Some suspect, by the way, that Tiffany's "real" agenda is to squelch the secondary market on their jewelry so that they can control it themselves. That also got my attention.)
"So, O.K., Tiffany's and eBay duke it out," you say, "but what about the rest of us?" (*See footnotes.)
Is that Really a Rembrandt?
Despite the frequent listings on eBay and (to be fair) other auction sites featuring the long lost Turner landscape that was found in grandma's attic, I suppose the most common lament in our business comes from the publishing side. A typical scenario: The representative and distributor of an artist's reproductions finds out that not only are instances of a specific image apprearing on rogue websites but that these works of art are being offered for sale by unauthorized vendors and, worse, at prices that are usually below the publisher's suggested retail price.
The fact that the images appear on these sites, by the way, is in itself not necessarily a violation of copyright or the of "fair use" laws--according to postings at chillingeffects.org, an oddly-titled, self-proclaimed watchdog "monitoring the legal climate for Internet Activity."
This is part of that hefty price tag associated with the evolution of the Internet: I recall a day, not so very long ago, when the worst thing an art publisher had to face was finding out that his otherwise legitimate lithographs were being framed up and sold in an empty parking lot downtown. The level of piracy that is now commonplace has been ratcheted up quite a bit in this The Information Age.
Is There a Remedy?
So, if that is the most common issue with copyright infringement at least insofar as the art gallery business goes (and, of course, I know there are many others) what can a publisher or individual artist do? Is there a way to know about these "rogue" websites? How can you identify them? And after that, determine who is responsible for them? Is there a way to get them to stop?
The answers to these questions are steeped in the murky and unknowable depths of both the legal world, as well as the digital ether we know as The Internet. What is possible in one, may not apply to the other.
But isn't it interesting to know about "takedown notices?" Does that suggest then, that if we come to be aware of someone violating our copyrights, and notify them, they are legally obligated to take down those images in question from their websites. Or does that only apply to Tiffinay's?
This question was recently posed to me: If one comes to know of a website that is engaged in illegally representing and selling artwork--whether fraudulent or not--is it possible to find out who is running those websites? Or even from which ISP the sites are being served? Of course, I did not have the answer and, ironically, was forced to pursue the Internet to research it.
I asked the guys at the ISP I use. Kevin Brooks, one of the principals of Netgate Internet (Netgate.net) in Silicon Valley--a bunch of ex-Apple geeks--was kind enough to respond via e-mail.
I asked him, "Is there a way for a civilan (read: non-geek) to determine from which ISP a particular website is being served?"
"Not easily," he responded. "There are tools that you can use to find out (on) what "name servers" (sic) a domain resides...(but) smaller Hosting Providers...often use someone else's DNS servers so it's not evident where the domain is being hosted. You (can) use a tool like "dig" (for Unix servers), or a webbased tool such as dnsstuff (dnsstuff.com to look up the "A" record for the website in question. (An "A" record is used to point Internet traffic to a specific IP address.)
O.K., there's more from Kevin, but let me try and translate for him up to this point: His answer is the one you might predict: "Yes and No." One can locate or perhaps identify the perpetrator using a utility like www.dnsstuff.com, but the trail may not end there.
Kevin goes on to say: "...(one can usually) tell from the name server records where the domain is hosted...(though) that's not always the case...some hosting providers use third party servers so it's not always easy to tell where the domain is hosted...(but) there's always IP addresses. (Every computer connected to the Internet has a unique, number known as an IP or Internet Protocol address). These are assigned to organizations in blocks of various sizes. So, if you know the the IP address of the site, which you can find out using the above tools, you can trace that IP address to an owner.
Unfortunately that's not always the end of the road. The IP address may lead you to an Internet Service Provider who had sold dedicated servers to people who in turn provide hosting services themselves. The bottom line? It's not easy, especailly for a non-net savvy person..." Translation: you might find the hosting company but then what?
Are the ISPs Insulated?
"But what about the ISP's liability in this kind of thing?" I responded. "Will the ISP, once they learn that they are hosting a 'rogue' website (let's say having been notified by an irate art publisher?) will they do anything about it?"
Kevin Brooks' response: "...we never get involved. We use the "common carrier" (sic) statute that prevents communications companies from being liable for content hosted on or transmitted across their network. If not for such a statute we'd have to monitor and censor all content transmitted on our networks and housed on our servers.
"Our terms of conditions do allow us to terminate an account for illegal activity, and copyright infringement is illegal. But, even so, we're not going to play judge and jury and we would usually require that a court find our customer guilty prior to taking action. Fortunately, these issues are usually resolved long before it gets to that stage."
Obviously, it's helpful if a publisher or artist has registered the copyright and can send a copy of that to the ISP host or website owner.
"Intellectual property rights need to be protected and laws need to catch up with the technology," Kevin continues. "There are ways you can protect your intellectual property using watermarks, digital rights management (DRM), and link blocking which are probably far more cost effective than using the current legal system.
This is a global issue, and an issue that's not easily resolved using today's (sic) copyright laws."
Is he playing dodgeball? O.K., maybe a little, but one can see his point. Suppose an ISP operator gets a flaming e-mail or a telephone call from someone he doesn't know, claiming that the artwork on some site he's never visited or even seen, but that is being served from his company's computers, is selling fraudulent artwork--vis a vis the "takedown notice" concept I referred to earlier. Does he say, "Right. I'll just shut that paying customer down."
Well, probably not. He'd say, "Show me proof that the client is engaged in wrongdoing, then I'll shut down his site."
Kevin's mention of DRM refers to any of several technologies used by publishers to control access to digital data, such as software, stock photography, music, and movies. It's not entirely applicable to what we do in the art gallery business, since it relates primarily to works of art that are of a digital nature.
However, in my initial, goofy scenario concerning the reporduciton of the Danish painting, this controversial issue now gets brought to our doorstep.
What's worse, an additional yellow sticky on all this is that DRM may allow publishers to restrict access to copyrighted material which may or may not be "in accord with their legal rights."
To exacerbate and further confound the issue, consider these two notable news items concerning (Internet search engine giant) Google: In the first item, the company was served with a lawuit over its Google Library Program.
The Authors Guild filed a suit charging that Google's plan to digitize the collections of certain libraries violated the copyrights of those books. (Actually, this is the latest in a string of such accusations made against Google.)
And the other: The owner of a website that features and purveys photographs of models, (who shall go unnamed because of the inapropriate content of this site) is also suing Google claiming that rogue websites are capturing his photos, offering them on offshore websites from which Google's spider (**See foonote) had automatically listed them in its Google Images area.
In the former case, Google announced last year its Google Print Program in which it had made legal agreements with several publishers to scan and offer the contents of specific books online. The program was launched to great fanfare.
That is, until Google's announcement of future plans for "Google Library" in which was revealed the company's intent to scan the "entire contents of every book in the New York Public Library" and make it available. For free.
This, not surprisingly, was received about as well as a biker at a bridge tournament. The hue and cry from the Author's Guild has still not died out.
In the second case--the website offering photos of models--the suit came after the owner of the site was at first fended off by Google stating that his argument was not with them but rather with the operators of the rogue sites. His answer? He was coming after Google because they were visible and accessible.
I mention these two lawsuits, not to kick around the legal ramifications but to point out that here again, the distance between the real world and the legal world can sometimes be a yawning chasm.
But, at least in my mind, these developments do seem to put Google into the same boat as the ISPs who host these illegally operated websites. I'm sure I don't haved to tell you how easy it is to locate the image instance of any notable artist's work in the Google image library.
So What's the Bottom Line?
In summary, I haven't offered much blue sky, I know.
We do hold this truth to be self-evident: That the remedies open to publishers and artists who find their work being offered for sale by unauthorized persons, or worse, by counterfeiters, are not any more effective than were those of pre-Internet days.
I recall my days with Mirage Editions back in the early '90's when the company was involved in investigations concerning fraud, illegal trafficking, and counterfeiting of the work of the late Patrick Nagel. somehow or another, I was put into the position of being the company's liaison with the FBI during the investigation. I don't suppose I have to relate to you how enthusiastic the FBI agents were about their plumb assignment--not exactly The Thomas Crown Affair. Despite that, the matter went on and on (I came into it at the end) and only because of Mirage's publisher, who kept his foot on the pedal.
After many years (nearly 10, as I recall) and untold tens of thousands of lost dollars later, the FBI finally did uncover a garage in New Mexico with a serigraphic printing set-up and pallet upon pallet of counterfeit Nagel serigraphs. But the damage had already been done.
What's to be Done?
Nothing has changed. It's still a matter of diligence and the willingness to rattly one's sword. Admittedly, when beginning this article, I had set out to determine if there was any tangible, physical remedy open to the victims of Internet copyright infringement, apart from the legal and moral issues. But the two areas run together like cheap batik, as we knew they would.
Footnotes: *I'll keep you posted on the outcome of this lawsuit between Tiffany's and eBay because if eBay loses, this will have a serious ripple effect. As Frank Fortunato, of the e-commerce Guide put it in a recent editorial, "...should the suit go against the company, a flood of similar suits will surely follow. (If) eBay settles out of court, many other similiar suits are still likely to ensure. Followed, perhaps, by class action suits from disgruntled buyers..." **A spider is a drone computer, which randomly wanders the Internet 24/7 and robotically makes note of website URLs-uniform resource locaters--which it encounters. Even pictures that appear on the Web will have their own URLs.
Todd Bingham is a consultant and sales trainer to the art gallery community. In cooperation with Art World News, he has also written eight books on selling art in the art gallery. For further information, visit: toddbinghamfineart.com or telephone 800-697-8935