Meyer, Suozzi, English & Klein, P.C. v. Higbee et al
Filing
10
AFFIDAVIT/DECLARATION in Opposition re #9 Motion to Dismiss for Failure to State a Claim filed by Meyer, Suozzi, English & Klein, P.C.. (Attachments: #1 Exhibit Plaintiffs Complaint, #2 Exhibit Printout of the Blue Gallery Website page, #3 Exhibit Printout of the recently-altered version of the Blue Gallery Website, #4 Exhibit Demonstration of how the Image previously could be obtained directly from a Google search, #5 Exhibit Demonstration of how the Image can, now, no longer be obtained directly from a Google search) (Schlosser, Kevin)
EXHIBIT 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.,
Docket No.:
Plaintiff,
-against-
COMPLAINT
MATHEW K. HIGBEE, Esq.,
NICK YOUNGSON,
RM MEDIA, LTD.,
And HIGBEE & ASSOCIATES,
Defendants.
Plaintiff Meyer, Suozzi, English & Klein, P.C., pro se, complaining of defendants Nicholas
Nick” Youngson, RM Media, Ltd., Mathew K. Higbee, Esq., and Higbee & Associates
(collectively, the “Defendants”), alleges as follows:
NATURE OF ACTION
Plaintiff brings this action as one of the unsuspecting victims of a fraudulent scheme
in which Defendants abuse the copyright laws by filing copyright registrations over effortless and
mundane photographs, making the photos freely available on the internet for no charge so that
Defendants can thereby catch innocent people unwittingly using the photos without an
'attribution” that is requested on Defendants’ purposefully convoluted website where the photos
are offered under “license,” and then, by using harassing scare tactics to extract money from their
victims to “settle” purported copyright claims with the specter of statutory damages of up to
$150,000 to which Defendants know fully that they are not entitled.
2.
Thus, upon information and belief. Defendants have conspired to orchestrate their
fraudulent scheme through the following deceptive tactics, among others:
a. An individual who reportedly lives in England takes photographs of common text
printing.
b. A copyright registration is filed with the United States Copyright Office for the subject
photos.
c. The photos are then made available on the internet, and easily found through the use of
common search terms of the text in the photos, for anyone to copy the photos and use
such in whatever manner and for whatever puipose they wish, including for commercial
use.
d. On the website page where the photo is found, no charge or any fee is requested for use
of the photo as it appears, as Defendants know that no one would actually pay any
meaningful money for such mundane photos, yet Defendants have used this scheme to
extract thousands of dollars from unsuspecting victims as further described herein.
e. The website from which the photos can be easily copied has a convoluted configuration
by which the user would be forced to “click” through a series of different pages and
websites to try to decipher who is really entitled to the so-called copyright, under what
terms the photos can be used, what the “license” agreement is, who the actual licensor
is, what the attribution requested is and what connection the attribution has to the
copyright owner, if any, none of which is clearly set forth or even decipherable on
careful study.
f The deceptive website indieates the license is automatically given to the user, but then
requires the user to “click” through a series of hyperlinks that lead to a third-party
website where there is a different form of “license.'
2
g. Although on the original website where the photo is located, the photo is offered free
under license, there is also a free “shared” form of license agreement on an entirely
different page and website (published by an independent company having nothing to
do with these photos or the copyrights) that does not even contain the names of the
parties to that form of license or any place in which either party can sign or agree to the
terms.
h. In their pursuit of catching innocent victims. Defendants then troll the internet by using
precise search criteria tied to the photos so that they can easily monitor who has copied
the photos on the internet.
i.
Once Defendants identify someone who has used the photo(s) and unwittingly failed
to include the “attribution” that is requested on the convoluted website. Defendants
launch their extortionate tactics to harass, intimidate and scare the user into paying
thousands of dollars.
j. Although, in the website maze in which the photos appear, a party called “Blue
Diamond Gallery” is purportedly making the photos available. Defendants do not
purport to assert claims on behalf of “Blue Diamond Gallery” or the individual who
filed the actual copyright registration, or the entity for which an attribution is requested.
(On the website where the photo appears, there is no explanation of who or what “Blue
Diamond Gallery” is or what connection it has to the photos or any copyrights.)
k. As part of their extortionate tactics, Defendants send threatening letters through use of
a California lawyer and law firm to the unsuspecting victims demanding thousands of
dollars to “settle,” claiming that the use of the photo constitutes copyright infringement
and thereby exposes the user to statutory damages of up to $150,000.
3
1. Defendants’ demand letter does not provide any factual basis under which damages of
up to $150,000 would ever be awarded.
m. In fact, contrary to the assertions in the demand letter, there is no copyright
infringement under the circumstances because the photos are freely made available to
the user under a “license,” which thereby precludes a claim for copyright infringement
and simply renders the use subject to a mere alleged claim of breach of the “license,’
for which no such “statutory damages” are available and for which no actual damages
can be proved, certainly not the thousands of dollars deceptively demanded by
Defendants.
n. Defendants then continue their harassing conduct by repeatedly attempting to extract
some form of “settlement” money from their victims, including threatening suit, or in
some instances, bringing suit and then quickly settling and/or dismissing such suits.
3.
As a result of the foregoing. Plaintiff brings this action for a declaratory judgment.
pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, determining and declaring
that (a) Defendants have no legitimate claim for copyright infringement because Plaintiff did not
infringe as a matter of law, and (b) Defendants have no cognizable or recoverable damages for
breach of contract or otherwise.
4.
Plaintiff also seeks relief, including damages, for Defendants’ false, fraudulent and
deceptive practices, which violate N.Y. Gen. Bus. L. § 349.
PARTIES AND JURISDICTION
5.
Plaintiff is a professional corporation duly organized and authorized to do business
in the State of New York, with a place of business at 990 Stewart Avenue, Suite 300, Garden City,
New York 11530.
4
6.
Upon information and belief, Defendant Nick Youngson is a natural person who
resides in the United Kingdom and who claims to be photographer by trade.
7.
Upon information and belief, Defendant RM Media, Ltd. is a foreign business
entity that operates out of the United Kingdom.
8.
Upon information and belief. Defendant Mathew K. Higbee is a natural person, and
an attorney licensed under the laws of the State of California.
9.
Upon information and belief, Defendant Higbee & Associates (the “Firm”) is a law
firm with a principal place of business in and formed under the laws of the State of California.
10.
Upon information and belief, the Firm is the agent for and conducts business
through and on behalf of Defendant RM Media, Ltd., including in and throughout the United
States, including the State of New York.
11.
An actual, antagonistic and justiciable controversy now exists between Plaintiff and
Defendants with respect to which Plaintiff is entitled to have a declaration of its rights and
protections, as well as relief, from Defendants’ unlawful conduct.
12.
This Court has original jurisdiction pursuant to Title 28 of the United States Code,
Section 1338(a) (federal question) because this action arises under the Copyright laws of the
United States (17 U.S.C. §§ 101 et seq.), and pursuant to the Declaratory Judgment Act (28 U.S.C.
§§2201 and 2202).
13.
This Court has personal jurisdiction over Defendants because they are doing
business, and/or transacting business within and directed to New York, and Plaintiffs claims
herein arise from those activities.
14.
At all relevant times hereto. Defendants’ acts and practices occurred in and
throughout the United States, including in the State of New York.
5
15.
Defendants’ wrongful acts and practices, including those upon which the claims
herein are based, have crossed into and taken place in the State of New York.
16.
At all times relevant herein, upon information and belief. Defendants have acted in
concert with each other, with the knowledge and participation of each other, to commit the
wrongful acts alleged herein.
17.
Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b)(2) because
a substantial part of the alleged events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action, is situated in this Judicial District.
FACTS
18.
On or about December 26, 2017, Plaintiff published, on one of its blogs, an article
(the “Article”).
19.
To accompany the Article, Plaintiffs marketing personnel used a generic stock
photograph (the “Image”) from a website offering “[t]he burden-of-prooffree pictures for your
web site.” (Emphasis added.).
20.
The Image was “offered” by the Blue Diamond Gallery and hosted on the following
website page; http://thebluediamondgallery.eom/b/burden-of-proof.html (the “Blue Diamond
Website”).
21.
Copies of the Blue Diamond Website and other related web pages, where the Image
was “offered,” are annexed hereto as Exhibit 1.
22.
On February 5, 2018, Plaintiff received a letter from Defendants, dated January 30,
2018 (“Demand I”).
23.
Immediately upon receiving Demand I, Plaintiff removed the Image from its
website and discontinued such use.
6
24.
Plaintiff has received no monetary benefit from the Image.
25.
Any failure by Plaintiff to provide any attribution with the Image was inadvertent,
innocent and unintentional.
26.
Any failure to provide any attribution with the Image has not resulted in any
monetary or other known damage to any of the Defendants.
27.
In Demand I, Defendants Higbee and the Firm claimed to represent Defendant RM
Media concerning the Image.
28.
The Image is a copyrighted work registered to Defendant Youngson.
29.
In Demand I, Defendants falsely contended that Plaintiff had infringed Defendant
RM Media’s alleged copyright in the Image and that “[i]f forced to go to court, [Defendants] will
ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. [5/c]
504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement.’
30.
In Demand I, Defendants referenced an already-established online collection
account associated with Plaintiff to which payments were to be immediately made.
31.
In making these allegations against Plaintiff, Defendants did not set forth a good
faith basis to believe that Plaintiffs use of the Image constituted copyright infringement.
32.
In fact, Defendants sent Demand I to Plaintiff knowing that there was no claim of
copyright infringement as a matter of law because the Image was offered under license for free
including for commercial purposes.
33.
In Demand I, Defendants attempted to extract a “settlement” of $5,280 from
Plaintiff without ever explaining how Defendants arrived upon that amount, what the basis for
such amount could be, or any other explanation.
7
Upon information and belief, Defendants sent Demand I to Plaintiff as a means of
34.
harassing and intimidating Plaintiff into thinking that it was exposed to such significant damages,
even though Defendants knew full well that there was no legal basis for their claim.
Though Demand I provides that Plaintiff had thirty (30) days to respond, in
35.
furtherance of their intimidation tacties, Defendants sent multiple eommunications to Plaintiff
within that time that were harassing and threatening.
On February 13, 2018, Plaintiff responded to Defendants, informing them of the
36.
inherent flaws in their claim, the innocent and de minimus nature of the use of the Image, that
Plaintiff had discontinued use of the Image and considered the matter closed, and requested that
Defendants likewise consider the matter closed.
37.
Defendants thereafter sent additional emails and repeatedly called Plaintiff to
extract money from Plaintiff, by falsely claiming copyright infringement and demanding
thousands of dollars.
38.
Defendants then sent an escalated communication dated May 9, 2018, which
Plaintiff received on May 22, 2018, which included a purported draft of a civil complaint
(“Demand IF’)39.
In Demand II, Defendants falsely claimed again that Plaintiff “engaged in copyright
infringement when it posted [the] client’s copyrighted image on its website without a valid
licensing agreement.
40.
However, Defendants were fully aware that the Image was made available by
license (albeit in the convoluted and confusing websites that Defendants used to trap unsuspecting
victims of its fraudulent and deceptive scheme).
8
41.
In Demand II, Defendants again claimed that they are “entitled to recover Statutory
damages of up to $150,000 for each infringement and may also recover attorney fees and court
costs. See 17 U.S.C. §§ 504 & 505.'
42.
Demand II stated that the “offer will be open for fifteen (15) days from the date of
[the] letter, after which our client has instructed us to file the enclosed Complaint and seek damages
to the full extent of the law.'
43.
Upon information and belief. Defendants falsely and strategically claimed
entitlement to the maximum statutory damages, emphasized the discretionary fees and cost, and
marked Demand II with a period of urgency, to further pressure, intimidate, and frighten Plaintiff
into immediately paying the requested settlement amount.
44.
Defendants’ assertions of copyright infringement are false and deceptive for
various reasons, including, but not limited to, the fact that the Image was “offered” expressly under
license, and thus. Plaintiff had a license and did not infringe the copyright as a matter of law.
45.
Defendants are also guilty of fraudulent business practices in violation of N.Y. Gen.
Bus. L. § 349, for various reasons, including, but not limited to numerous wrongful and deceptive
acts as further set forth herein, including as alleged above and as follows:
a. promoting the Image as “free,” with no restriction on access and no requirement to agree
to terms before use, with the intent that it be so used;
b. trolling the Internet for users of the Image with intent to trap innocent and unsuspecting
victims, whom Defendants could then intimidate into unjustifiably paying thousands of
dollars;
9
c. sending demand letters falsely claiming that Plaintiff does not have a license to use the
Image and that Plaintiff infringed the Image copyright, while knowing fully that there is
no infringement as a matter of law because the Image was “offered” under a license; and
d. sending the aforementioned demand letters with the intent and purpose to threaten and
intimidate Plaintiff into paying money that the Defendants are not entitled to, while
knowing fully that there was no good faith basis to believe any claim existed.
FIRST CLAIM FOR RELIEF
(For Declaratory Judgment of Non-Infringement)
46.
Plaintiff repeats and re-alleges each of the allegations of this complaint as though
fully set forth herein.
47.
There is a substantial controversy between Plaintiff and Defendants, and they have
adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.
48.
By reason of Defendants’ wrongful allegations of infringement and other
wrongdoing committed by Defendants as alleged herein, a declaratory judgment is necessary to
resolve, clarify and settle the respective rights and legal positions of the parties.
49.
As such, the Court should issue a declaratory judgment that (a) Plaintiff s use of
the Image under license does not constitute copyright infringement as a matter of law, and (b)
Defendants cannot sustain any claim for breach of contract (any license) because there are no
resulting damages.
SECOND CLAIM FOR RELIEF
(For Defendants’ violation of N.Y. Gen. Bus. L. § 349)
50.
Plaintiff repeats and re-alleges each of the allegations of this complaint as though
fully set forth herein.
10
51.
By reason of the Defendants’ deceptive practices of attempting to extort money
from Plaintiff under false claims of copyright infringement and as more fully described in this
complaint, the Defendants have violated N.Y. Gen. Bus. L. § 349 and thus, Plaintiff is entitled to
damages from Defendants, jointly and severally, in an amount established at trial.
WHEREFORE, Plaintiff Meyer, Suozzi, English & Klein, P.C., respectfully requests
judgment as follows:
1)
Issuing a declaratory judgment that (a) Plaintiffs use of the Image under license
does not constitute copyright infringement as a matter of law, and (b) Defendants cannot sustain
any claim for breach of contract (the license) because there are no resulting damages.
2)
Awarding Plaintiff damages against Defendants, jointly and severally, including
Plaintiffs full costs of this litigation, including reasonable attorneys’ fees as provided for in 17
U.S.C. § 505 and N.Y. Gen. Bus. L. § 349(h); and
3)
Awarding Plaintiff such other relief as this Court may deem just and proper.
Dated: Garden City, New York
June 6, 2018
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.
Pro Se
A/
By:
Kevin Schlosser
990 Stewart Avenue, Suite 300
Garden City, New York 11530-9194
Tel.: (516)741-6565
kschlosser@msek.com
11
4112009
EXHIBIT I
Burden of Proof
5/28/2018
llTipO
se R aci
.C
Close
e maybe used for free including
The irn c; ■i on ili|. lie Oiterea under C re all Commons Altribu on-: Tiare/dike lie
Tor coni men
purp
or'lOuSd you not be familiar'wilti Creative Commons licenses including
ubje to the terms ottne iic
"I rociuirerru
then please road tiie license here
iheir aliribu
1
j(-
The Blue Diamond Gallery
The burden-of-prooffree pictures for your web site
Advert
The image below related to the word burden-of-proof is licensed by it's creator under a Creative Commons AttributionShareAlike license which permits the free use of the image for any purpose including commercial use and also permits
the image to be modified, attribution required, see license details below and FAQ.
Please ensure the license and image size are suitable for your use, alternati\«ly you can purchase the original full size
image on a rights managed license for a few dollars from AlphaStocklmages.com here
http://thebluediamondgallery.eom/b/burden-of-prcx3f.html
1/4
5/28/2018
Burden of Proof
1^.
,%/i
€:
Im^e n;ay be used for free but
CC BY-SA 3.0 Nick Youngson / Aloha Stock Images
Burden of Proof definition.
Burden of Proof synonyms
DETAILS:
Title: Burden of Proof
File size: 105 KB
Free License permits: Sharing, copying and redistributing in any medium or format including adapting, remixing,
transforming, and burden-of-proofing upon the material for any purpose, even commercially. Attribution required.
License: Creatii^ Commons 3 - CC BY-SA 3.0
Required attribution: Alpha Stock Images - link to - http://alphastockimages.com/
Original Author: Nick Youngson - link to - http://nyphotographic.com/
Original Image: http://vvww.thebluediamondgallery.eom/b/burden-of-proof.html
Should the above licence or the size of the image not be suitable for your use then you can purchase the original full size
image on a rights managed basis at here for a few dollars.
ORIGINAL PREMIUM IMAGES
You may also be interested in one of these series of original premium images;
http://thebluediamondgallery.conn/b/burden-of-proof.html
2/4
5/28/2018
Burden of Proof
Dictionary image with a choice of hundreds of words for just $9.95.
Click here to view full selection
if..
j
Handwriting image with a choice of hundreds of words for just $9.95.
Click here to Mew Hill selection
■
Highway sign image with a choice of hundreds of words for just $9.95.
Click here to view full selection
f. 1
Word Cloud image with a choice of hundreds of words for just $9.95.
Click here to view full selection
http://thebluediamondgallery.eom/b/burden-of-proof.html
3/4
Burden of Proof
5/28/2018
Acl\«rt
&
dfeam/bime
Search 74 mUHon /mages
. SlfyiPWCRIftT STOCK
ABCDEFGHIJKLMNOPQRSTUVW
Terms and Conditions
FAQ
http://thebluediamondgallery.eom/b/burden-of-proof.html
Privacy Policy
Copyright 2017 RM Media Ltd t/a AlphaStocklmages.com
4/4
5/28/2018
Creatiw Commons —Attribution-ShareAlike 3,0 Unported — CC BY-SA 3.0
Creative Commons License Deed
Attribution-ShareAlike3.0 Unported (CC BY-SA3.0)
This is a human-readable summary of (and not a substitute for) the license.
You are free to:
Share — copy and redistribute the material in any medium or format
Adapt — remix, transform, and build upon the material
for any purpose, even commercially.
The licensor cannot revoke these freedoms as long as you follow the license terms.
Under the following terms:
Attribution — You must give appropriate credit, provide a link to the license, and indicate if
changes were made. You may do so in any reasonable manner, but not in any way that
suggests the licensor endorses you or your use.
ShareAlike — If you remix, transform, or build upon the material, you must distribute your
contributions under the same license as the original.
No additional restrictions — You may not apply legal terms or technological measures that
legally restrict others from doing anything the license permits.
Notices:
You do not have to comply with the license for elements of the material in the public
domain or where your use is permitted by an applicable exception or limitation.
No warranties are given. The license may notgive you all of the permissions necessaryfor
your intended use. For example, other rights such as publicity, privacy, or moral rights may
limit howyou use the material.
https ://creativecommons.org/licenses/by-sa/3.0/
1/1
Creati\« Commons Legal Code
5/28/2018
Creative Commons Legal Code
Attribution-ShareAlike 3.0 Unported
CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL
SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT
RELATIONSHIP CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS.
CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED,
AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.
License
THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS
PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR
OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS
LICENSE OR COPYRIGHT LAW IS PROHIBITED.
BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE
BOUND BY THE TERMS OF THIS LICENSE. TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO
BE A CONTTTACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION
OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.
1. Definitions
a. "Adaptation" means a work based upon the Work, or upon the Work and other pre-existing works,
such as a translation, adaptation, derivative work, arrangement of music or other alterations of a
literary or artistic work, or phonogram or performance and includes cinematographic adaptations or
any other form in which the Work may be recast, transformed, or adapted including in any form
recognizably derived from the original, except that a work that constitutes a Collection will not be
considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work
is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with
a moving image ("synching") will be considered an Adaptation for the purpose of this License.
b. "Collection" means a collection of literary or artistic works, such as encyclopedias and anthologies,
or performances, phonograms or broadcasts, or other works or subject matter other than works listed
in Section 1(f) below, which, by reason of the selection and arrangement of their contents, constitute
intellectual creations, in which the Work is included in its entirety in unmodified form along with one
or more other contributions, each constituting separate and independent works in themselves, which
together are assembled into a collective whole. A work that constitutes a Collection will not be
considered an Adaptation (as defined below) for the purposes of this License.
c. "Creative Commons Compatible License" means a license that is listed at
https://creativecommons.org/compatiblelicenses that has been approved by Creative Commons as
being essentially equivalent to this License, including, at a minimum, because that license: (i)
contains terms that have the same purpose, meaning and effect as the License Elements of this
License; and, (ii) explicitly permits the relicensing of adaptations of works made available under that
license under this License or a Creative Commons jurisdiction license with the same License
Elements as this License.
d. "Distribute" means to make avaiiable to the public the original and copies of the Work or Adaptation,
as appropriate, through sale or other transfer of ownership.
e. "License Elements" means the following high-level license attributes as selected by Licensor and
indicated in the title of this License: Attribution, ShareAlike.
f. "Licensor" means the individual, individuals, entity or entities that offer(s) the Work under the terms
of this License.
https ://creati\«commons .org /I icenses/by-sa/3.0/leg alcode
1/5
5/28/2018
Creative Commons Legal Code
g. "Original Author" means, in the case of a literary or artistic work, the individual, individuals, entity
or entities who created the Work or if no indiydual or entity can be identified, the publisher; and in
addition (i) in the case of a performance the actors, singers, musicians, dancers, and other persons
who act, sing, deliver, declaim, play in, interpret or othenwise perform literary or artistic works or
expressions of folklore; (il) In the case of a phonogram the producer being the person or legal entity
who first fixes the sounds of a performance or other sounds; and, (iii) in the case of broadcasts, the
organization that transmits the broadcast.
h. "Work" means the literary and/or artistic work offered under the terms of this License including
without limitation any production in the literary, scientific and artistic domain, whatever may be the
mode or form of its expression including digital form, such as a book, pamphlet and other writing; a
lecture, address, sermon or other work of the same nature; a dramatic or dramatico-musical work; a
choreographic work or entertainment in dumb show; a musical composition with or without words; a
cinematographic work to which are assimilated works expressed by a process analogous to
cinematography; a work of drawing, painting, architecture, sculpture, engraving or lithography; a
photographic work to which are assimilated works expressed by a process analogous to
photography; a work of applied art; an illustration, map, plan, sketch or three-dimensional work
relative to geography, topography, architecture or science; a performance; a broadcast; a phonogram;
a compilation of data to the extent it is protected as a copyrightable work; or a work performed by a
variety or circus performer to the extent it is not otherwise considered a literary or artistic work.
i. "You" means an individual or entity exercising rights under this License who has not previously
violated the terms of this License vwith respect to the Work, or who has received express permission
from the Licensor to exercise rights under this License despite a previous violation.
j. "Publicly Perform" means to perform public recitations of the Work and to communicate to the
public those public recitations, by any means or process, including by wire or wireless means or
public digital performances; to make available to the public Works in such a way that members of the
public may access these Works from a place and at a place individually chosen by them; to perform
the Work to the public by any means or process and the communication to the public of the
performances of the Work, including by public digital performance; to broadcast and rebroadcast the
Work by any means including signs, sounds or images.
k. "Reproduce" means to make copies of the Work by any means including without limitation by
sound or visual recordings and the right of fixation and reproducing fixations of the Work, including
storage of a protected performance or phonogram in digital form or other electronic medium.
2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from
copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright
protection under copyright law or other applicable laws.
3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a
worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to
exercise the rights in the Work as stated below:
a. to Reproduce the Work, to incorporate the Work into one or more Collections, and to Reproduce the
Work as incorporated in the Collections;
b. to create and Reproduce Adaptations provided that any such Adaptation, including any translation in
any medium, takes reasonable steps to clearly label, demarcate or otherwise identify that changes
were made to the original Work. For example, a translation could be marked "The original work was
translated from English to Spanish," or a modification could indicate "The original work has been
modified.
c. to Distribute and Publicly Perform the Work including as incorporated in Collections; and
d. to Distribute and Publicly Perform Adaptations.
M.
e. For the avoidance of doubt:
i. Non-waivable Compulsory License Schemes. In those jurisdictions in which the right to
collect royalties through any statutory or compulsory licensing scheme cannot be waived, the
Licensor reserves the exclusive right to collect such royalties for any exercise by You of the
rights granted under this License;
ii. Waivable Compulsory License Schemes. In those jurisdictions In which the right to collect
royalties through any statutory or compulsory licensing scheme can be waived, the Licensor
waives the exclusive right to collect such royalties for any exercise by You of the rights
granted under this License; and.
https://creativecommons.Org/licenses/by-sa/3.0/legalccx1e
2/5
5/28/2018
Creafivs Commons Legal Code
iii. Voluntary License Schemes. The Licensor waiws the right to collect royalties, whether
individually or, in the event that the Licensor is a member of a collecting society that
administers wluntary licensing schemes, \4a that society, from any exercise by You of the
rights granted under this License.
The above rights may be exercised in all media and formats whether now known or hereafter devised. The
above rights include the right to make such modifications as are technically necessary to exercise the rights
in other media and formats. Subject to Section 8(f), all rights not expressly granted by Licensor are hereby
reserved.
4. Restrictions. The license granted in Section 3 abo\« is expressly made subject to and limited by the
following restrictions:
a. You may Distribute or Publicly Perform the Work only under the terms of this License. You must
include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the
Work You Distribute or Publicly Perform. You may not offer or impose any terms on the Work that
restrict the terms of this License or the ability of the recipient of the Work to exercise the rights
granted to that recipient under the terms of the License. You may not sublicense the Work. You must
keep intact all notices that refer to this License and to the disclaimer of warranties with every copy of
the Work You Distribute or Publicly Perform. When You Distribute or Publicly Perform the Work, You
may not impose any effective technological measures on the Work that restrict the ability of a
recipient of the Work from You to exercise the rights granted to that recipient under the terms of the
License, This Section 4(a) applies to the Work as incorporated in a Collection, but this does not
require the Collection apart from the Work itself to be made subject to the terms of this License. If
You create a Collection, upon notice from any Licensor You must, to the extent practicable, remove
from the Collection any credit as required by Section 4(c), as requested. If You create an Adaptation,
upon notice from any Licensor You must, to the extent practicable, remove from the Adaptation any
credit as required by Section 4(c), as requested.
b. You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a
later version of this License with the same License Elements as this License; (iii) a Creative
Commons Jurisdiction license (either this or a later license version) that contains the same License
Elements as this License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative Commons Compatible
License. If you license the Adaptation under one of the licenses mentioned in (iv), you must comply
with the terms of that license. If you license the Adaptation under the terms of any of the licenses
mentioned in (i), (ii) or (iii) (the "Applicable License"), you must comply with the terms of the
Applicable License generally and the following provisions: (I) You must include a copy of, or the URI
for, the Applicable License with every copy of each Adaptation You Distribute or Publicly Perform; (II)
You may not offer or impose any terms on the Adaptation that restrict the terms of the Applicable
License or the ability of the recipient of the Adaptation to exercise the rights granted to that recipient
under the terms of the Applicable License; (III) You must keep intact all notices that refer to the
Applicable License and to the disclaimer of warranties with every copy of the Work as included in the
Adaptation You Distribute or Publicly Perform; (IV) when You Distribute or Publicly Perform the
Adaptation, You may not impose any effective technological measures on the Adaptation that restrict
the ability of a recipient of the Adaptation from You to exercise the rights granted to that recipient
under the terms of the Applicable License. This Section 4(b) applies to the Adaptation as
incorporated in a Collection, but this does not require the Collection apart from the Adaptation itself to
be made subject to the terms of the Applicable License.
c. If You Distribute, or Publicly Perform the Work or any Adaptations or Collections, You must, unless a
request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work and
provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or
pseudonym, if applicable) if supplied, and/or if the Original Author and/or Licensor designate another
party or parties (e.g., a sponsor institute, publishing entity. Journal) for attribution ("Attribution
Parties") in Licensor's copyright notice, terms of service or by other reasonable means, the name of
such party or parties; (ii) the title of the Work if supplied; (iii) to the extent reasonably practicable, the
URI, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to
the copyright notice or licensing information for the Work; and (iv), consistent with Ssection 3(b), in
the case of an Adaptation, a credit identifying the use of the Work in the Adaptation (e.g., "French
translation of the Work by Original Author," or "Screenplay based on original Work by Original
Author"). The credit required by this Section 4(c) may be implemented in any reasonable manner;
provided, however, that in the case of a Adaptation or Collection, at a minimum such credit will
appear, if a credit for all contributing authors of the Adaptation or Collection appears, then as part of
https ://creati\«commons.org/licenses/by-sa/3.0/legalcode
3/5
5/28/2018
Creative Commons Legal Code
these credits and in a manner at least as prominent as the credits for the other contributing authors.
For the abidance of doubt, You may only use the credit required by this Section for the purpose of
attribution in the manner set out above and, by exercising Your rights under this License, You may
not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the
Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work,
without the separate, express prior written permission of the Original Author, Licensor and/or
Attribution Parties.
d. Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by
applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of
any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action
in relation to the Work which would be prejudicial to the Original Author's honor or reputation.
Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in
Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion,
mutilation, modification or other derogatory action prejudicial to the Original Author's honor and
reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent
permitted by the applicable national law, to enable You to reasonably exercise Your right under
Section 3(b) of this License (right to make Adaptations) but not othenA/ise.
5. Representations, Warranties and Disclaimer
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS
THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND
CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE
PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS
DO NOTALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY
TO YOU.
6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT
WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE
USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7. Termination
a. This License and the rights granted hereunder will terminate automatically upon any breach by You of
the terms of this License. Individuals or entities who ha\« recei\ed Adaptations or Collections from
You under this License, howe\«r, will not ha\e their licenses terminated provided such individuais or
entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any
termination of this License,
b. Subject to the above terms and conditions, the iicense granted here is perpetuai (for the duration of
the applicabie copyright in the Work). Notwithstanding the above, Licensor reserves the right to
release the Work under different license terms or to stop distributing the Work at any time; provided,
however that any such election will not serve to withdraw this License (or any other license that has
been, or is required to be, granted under the terms of this License), and this License will continue in
full force and effect unless terminated as stated abo\«.
8. Miscellaneous
a. Each time You Distribute or Publicly Perform the Work or a Collection, the Licensor offers to the
recipient a license to the Work on the same terms and conditions as the license granted to You
under this License.
b. Each time You Distribute or Publicly Perform an Adaptation, Licensor offers to the recipient a license
to the original Work on the same terms and conditions as the license granted to You under this
License.
c. If any provision of this License is invaiid or unenforceabie under appiicable law, it shall not affect the
validity or enforceability of the remainder of the terms of this License, and without further action by
the parties to this agreement, such provision shall be reformed to the minimum extent necessary to
make such provision valid and enforceable.
https://oreatiwcommons.Org/licenses/by-sa/3.0/legalcode
4/5
5/28/2018
Creativs Commons Legal Code
d. No term or provision of this License shall be deemed waived and no breach consented to unless such
waiver or consent shall be in writing and signed by the party to be charged with such waiver or
consent.
e. This License constitutes the entire agreement between the parties with respect to the Work licensed
here. There are no understandings, agreements or representations with respect to the Work not
specified here. Licensor shall not be bound by any additional provisions that may appear in any
communication from You. This License may not be modified without the mutual written agreement of
the Licensor and You.
f. The rights granted under, and the subject matter referenced, in this License were drafted utilizing the
terminology of the Berne Conxention for the Protection of Literary and Artistic Works (as amended on
September 28, 1979), the Rome Convention of 1961, the WlPO Copyright Treaty of 1996, the WlPO
Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on
July 24, 1971). These rights and subject matter take effect in the relevant jurisdiction in which the
License terms are sought to be enforced according to the corresponding provisions of the
implementation of those treaty provisions in the applicable national law. If the standard suite of rights
granted under applicable copyright law includes additional rights not granted under this License, such
additional rights are deemed to be included in the License; this License is not intended to restrict the
license of any rights under applicable law.
Creative Commons Notice
Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with
the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages
whatsoever, including without limitation any general, special, incidental or consequential damages arising
in connection to this license. Notwithstanding the foregoing two (2) sentences, if Creative Commons has
expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor.
Except for the limited purpose of indicating to the public that the Work Is licensed under the CCPL,
Creative Commons does not authorize the use by either party of the trademark "Creative Commons" or
any related trademark or logo of Creative Commons without the prior written consent of Creative
Commons. Any permitted use will be in compliance with Creative Commons' then-current trademark
usage guidelines, as may be published on its website or otherwise made available upon request from
time to time. For the avoidance of doubt, this trademark restriction does not form part of the License.
Creative Commons maybe contacted at httosY/creativecommons. ora/.
https ://creati\ecommons.org/licenses/by-sa/3.0/legalcode
5/5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?