Once is happenstance. Twice is coincidence. Three times is enemy action.
Background
In January, I published an article describing how a company called Pixsy sent me repeated legal threats in a bid to get me to pay $600 for a Creative Commons image I’d used. Pixsy falsely claimed that I had violated the Creative Commons license by failing to correctly attribute it to its creator, the photographer Nenad Stojkovic. After I challenged them on this, they apologized and withdrew the threats, but refused to answer any of my questions about how this happened or how their business operates (Stojkovic also failed to answer multiple messages seeking clarification).
In my article, I expressed my disgust with the unethical practice of “copyleft trolling” — where predators post photos under outdated, out-of-use versions of Creative Commons licenses, then threaten to sue the people who use these images over minor administrative errors in their attributions (the current Creative Commons licenses require rightsholders to offer a 30-day grace period to “cure” attributions after notifying users before taking any further action).
I named both the Pixsy employee who threatened me and their supervisor, who apologized but refused to answer my questions about how these threats came to be sent, and whether Pixsy was a company that made a practice out of copyleft trolling. Though these employees only gave their first names (apparently, Pixsy is a company that sends pseudonymous legal threats, which is a giant red flag), I included links to the LinkedIn profiles of Pixsy employees with matching first names.
On February 2, Pixsy CEO Kain Jones sent me a letter with yet more baseless legal threats, inviting me to an “open conversation.”
Open conversations do not take place under a cloud of baseless litigation threats. Open conversations are not conducted at lawyerpoint. “Legal intimidation” is fundamentally incompatible with “open conversation.”
Which is why I’ve decided to reply to Mr Jones in public.
The Letter
Dear Mr Jones,
I am in receipt of your letter of February 2. I find it frankly confusing and more than a little frustrating. While I appreciate your apology for sending me a baseless legal threat and your offer of an “open conversation,” the fact that you included multiple, new baseless legal threats saps both your apology and your offer of conversation of sincerity.
The Airing of Grievances
I’ll begin with addressing your grievances, and then move on to your threats.
You repeat your claim — first made on your company’s Twitter account — that “[my] article is [not] a fair representation of your business.” However, nothing in your letter refutes anything in my article describing your business practices. I said that I believe that you engage in the unethical practice of demanding license payments over minor Creative Commons attribution errors. You write that “we do not send claims where there is proper attribution.” This does not address my claim in any way.
You also write that your business is ethical inasmuch as you “were very forthcoming about having made a mistake” and “took steps to terminate the matter.” Again, you appear to be laboring under the misapprehension that I am accusing you of being unethical because you made a mistake. That is not the case.
Once more, and for avoidance of doubt: I believe that you are unethical because you send demand letters over minor attribution errors.
Not only is this something that the Creative Commons organization has unequivocally condemned as contrary to the spirit of its licenses, but the attribution errors you’ve built a business out of not forgiving are precisely the sort of human error that your firm committed when it sent me multiple, baseless legal threats.
And that’s another reason I find your company’s conduct unethical. When you commit these minor errors, you send a letter asking me to be understanding because “people occasionally make mistakes.” But the legal threat you sent me was at great pains to remind me that “copyright is a strict liability offense” and that I am “liable…regardless of [my] knowledge or intent.” Your FAQ reminds your victims that removing the image will not make the issue go away, because this “does not resolve the period of unlicensed use.” Your appeal to my forgiveness cannot be squared with your absolute denial of forgiveness for the targets of your speculative invoices.
In your letter, you insist that your company is not a “robosigning mill.” While “robosigning mill” has no formal, agreed-upon standard meaning, one of the widely accepted meanings of this phrase is “a company that sends out legal threats without having them reviewed by a lawyer or other legal professional.” Your firm gives every impression of engaging in that conduct. Your senior employee declined to answer my request for clarity on this matter and your own letter offers no clarity.
Once more, for avoidance of doubt, allow me to make clear that the reason your apology doesn’t change my view that your firm is unethical is that sending legal threats without oversight by a legal professional is incredibly sleazy.
Finally, to your grievance that your employees shouldn’t be subjected to “vitriol” for their role in this unethical operation: I disagree. One of the employees I named is listed on your website having “overseen over 140,000 cases” on your firm’s behalf, and is described as being in charge of your “Case Management” (that is, your legal threats).
Criticizing a senior executive for their professional conduct by name is not “vitriol” — it is a standard way of holding powerful people to account for their professional activities.
The other employee I named personally signed two emails and four PDFs threatening me and telling me to expect no forgiveness or understanding, and insisting that the invasive methods used to (incorrectly) uncover my personal information were inoffensive.
In other words, I only engaged in conduct that your own employees insisted was legitimate.
MORE Legal Threats?
Now, onto your legal threats. You write that the “inaccuracies and false statements” in my article are “extremely damaging to Pixsy’s business.” But you decline to “[list] them all line-by-line … escalating things legally.”
I wrote to your employees repeatedly seeking clarification on your business practices. When your employee declined to reply to my repeated messages, I sought out satisfied Pixsy customers and made sure to include their perspective in my article; and offered your firm a chance to clarify those practices in the article itself.
Nothing I have seen since suggests that anything in my article is wrong, though again, I invite you to clarify or correct my impression of your commercial practices; see the bottom of this letter for a list of questions.
You further assert that by naming your employees and linking to their LinkedIn profiles, I violate the GDPR (you note that these employees live in the EU).
Though I haven’t lived in the EU for six years, I do have some passing familiarity with European digital law (and I also spent a lot of time in Brussels agitating for the passage of the GDPR). However, out of an abundance of caution I consulted with a German lawyer with significant experience. Here is what he wrote:
According to Art. 85(2), member states shall provide for exemptions or derogations from the GDPR for “processing carried out for journalistic purposes or the purpose of academic artistic or literary expression”. Germany has done so. According to Art. 23 of the State Media Treaty and § 19 of the Berlin Data Protection Act, journalistic content is largely exempt from the GDPR. That applies to your post as well. The term journalism also includes the electronic press. Even if the GDPR were applicable, the processing would be justified under Article 6 (1) (f) GDPR (legitimate interests).
[Pixsy employees] can invoke German libel law. However, the post is also justified from this perspective. It contains true facts that do not violate the private or intimate sphere and also do not have a stigmatizing effect.
Regarding a possible libel lawsuit by the company itself: Pixsy has not named any specific statements that are false or inaccurate.
Lamentably, the USA does not have a federal privacy law, however, I have taken legal advice regarding my letter as it relates to the CCPA, and am confident that I have not violated California law, either.
That said, I am happy to report I have removed the names of your employees from my article. I don’t do this because you threatened me, but because I am an ethical person, and ethical people do not deliberately seek to cause distress in others (for example, by sending thousands upon thousands of unethical legal threats).
Some Questions
I have been a journalist for a quarter of a century and always strive to be accurate in my journalism. To date, both you and your employees have declined to answer any of my repeated questions about your operations, leaving me to rely upon inference and secondary sources. I’d welcome your answers to the following questions and will update my article with any answers you provide:
- Do you send legal threats and invoices to people whose only Creative Commons license violation is an error in their attribution string?
- In these cases, do you provide an option to your clients to seek correct attribution, rather than a “license fee”?
- What proportion of your enforcement actions — by monetary value and volume — are triggered by incorrect Creative Commons attributions, rather than bona fide copyright infringements?
- Do lawyers or other legal professionals review your threats before they are sent?
- What proportion of your revenues are attributable to enforcement actions taken on behalf of Marco Verch?
Some Unsolicited Advice
In your promotional materials and your letter to me, you describe Pixsy as a firm whose mission is getting a fair shake for photographers. But in your dealings with me, peppered as they are with baseless legal threats, you come off not as a defender, but as a bully.
As a professional creator — that is, someone whose works are purchased by publishers voluntarily, without my having to resort to legal threats — I appreciate the role that copyright enforcement can play in ensuring that we who make things get our due (however, this does not apply to “creators” who pay gig-workers in low-income countries to produce works-made-for-hire on platforms like Upwork).
Dude, you have got to stop threatening people. Yes, it’s absolutely true that people who don’t know their rights and don’t have friendly lawyers all over the world who’ll represent them pro bono can be intimidated by baseless legal threats, and those people will give you money and let you dictate what they can and can’t publish.
But if you open with threats, you can’t have “open conversations.” This Trump-style, “do what I say or I’ll see you in court” act works well, but it fails really badly. Eventually you’ll threaten someone who knows the law, someone with ethics, someone who understands that if they don’t stand up to you, you’ll continue to deal out wholesale legal threats to people who don’t have the wherewithal to refuse.
Look, I am the kind of person you claim to represent. I am a professional creator. My books are bestsellers all over the world. If you respect creators so much, you would have responded to my absolutely reasonable requests for clarity on how you came to send me those baseless legal threats with answers, not silence.
And certainly not with threats.