Cease and Desist letter from Amazon / dpreview

My recent post about the Canon EOS 7D caused a bit of controversy on the Internet and it is not surprising considering that in that post I’m essentially showing that the EOS 7D, Canon’s supposedly latest and greatest APS-C sensor camera body, is offering worse image quality compared to the two year older model, the EOS 40D. This was my conclusion based on my discussion of dpreview’s review of the EOS 7D and some of their test data.

After posting my article about the EOS 7D, I notified people of the post and one of those people was Philip Askey, the guy who started dpreview before Amazon bought them some time ago. Shortly after sending my email to Askey, he replied demanding that I take down the sample images from dpreview which I included in my post about the 7D. You can see the email conversation that followed below:

From: Philip Askey

Sent: Sunday, November 08, 2009 7:47 PM

To: Karel Donk Please remove the copyright image quality crops from your blog post, you did not seek permission to reproduce these. —- From: Karel Donk

Sent: Sunday, November 08, 2009 8:55 PM

To: ‘Philip Askey’ Hi Philip, Thank you for reading. I was hoping you guys would mention how the noise in 7D images was still worse compared to the 40D, like you did when you reviewed the 50D. Also I use some of the crops to discuss the result of your published reviews and show how from your own reviews and samples, the 7D performs worse than the 40D, while also mentioning how you guys failed to mention in your own review that the 7D performs worse at low ISO compared to the D300s, as you can clearly see.

My use falls under fair use and that’s why i did not ask permission. But let me know if you think otherwise. Regards, —- From: Philip Askey

Sent: Sunday, November 08, 2009 8:59 PM

To: Karel Donk Karel, You clearly have an axe to grind against Canon and I’m not hear to have a conversation, we would compare the 7D to the 40D if it were the clear predecessor. Your use of our numerous images does not fall under fair use. Please remove all these images immediately. —- From: Karel Donk

Sent: Sunday, November 08, 2009 9:03 PM

To: ‘Philip Askey’ Philip, Can you explain to me why you think this is not fair use? Thanks,

After my last email to Askey above, I didn’t hear from him again. However, after this email exchange I started contacting a few people to ask them for their opinion about my use of the images in my post. I was sure my use of the images fell under “fair use” but I still wanted to hear the opinion of others just to be absolutely certain that I wasn’t infringing on dpreview’s rights. As a photographer myself, I too would love to be able to protect my work, so I take such matters very serious. One of the people I contacted was Dan Heller, well known in the photography business community online, he has written about many similar topics in the past. We started a very insightful email discussion on the subject, and Dan basically confirmed my “fair use” argument.

In case you’re not familiar with “fair use” of content, the Electronic Frontier Foundation (EFF) has the following to say about it:

The public’s right to make fair use of copyrighted works is a long-established and integral part of US copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment’s guarantee of freedom of expression. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law”. 3. How Do You Know If It’s Fair Use?

There are no clear-cut rules for deciding what’s fair use and there are no “automatic” classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include: a. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes — Courts are more likely to find fair use where the use is for noncommercial purposes.

b. The nature of the copyrighted work — A particular use is more likely to be fair where the copied work is factual rather than creative.

c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole — A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.

d. The effect of the use upon the potential market for or value of the copyrighted work — If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use. 4. What’s been recognized as fair use?

Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

Based on the criteria in point 3 above, there’s absolutely nothing wrong with my use of some of dpreview’s images as I did in my post about the EOS 7D. Especially considering the fact that I was mainly criticizing dpreview’s review of the 7D (they worded the review in such a way to make the 7D look positive at times) and using their own data to show what I feel that they failed to mention about the 7D (that it offers worse image quality compared to the Nikon D300s from ISO 100 – 1600 and worse compared to the EOS 40D at all ISOs).

But the next day, after I sent my last reply to Askey, I get the following email from a lawyer at Amazon:

From: Radliff, Lynn

Sent: Monday, November 09, 2009 8:36 PM

To: Karel Donk

Cc: Sheehan, Kathryn

Subject: Cease & Desist Dear Karel Donk: I am Associate General Counsel for Litigation and Regulatory Matters for Amazon.com, which owns dpreview.com. It has recently come to our attention that you are using dpreview.com’s copyrighted material in your blog posts, specifically http://blog.kareldonk.com/canon-eos-7d-review-noisier-than-40d/, in connection with Karel Donk In My Opinion. Your use of this content is unauthorized by dpreview.com and infringes dpreview.com’s intellectual property rights. The purpose of this e-mail is to demand that you immediately cease using or otherwise infringing dpreview.com’s copyrighted content and related rights. dpreview.com would prefer to resolve this matter amicably with your cooperation. However, dpreview.com needs your written assurance that you are willing to immediately cease and desist from any and all use of dpreview.com’s intellectual property, including any images and content from the dpreview.com web site.

We look forward to hearing from you, and ask for your written response by Friday, November 13, 2009 to indicate your position on this matter. If we do not hear from you by this date, we will take those further steps that we believe are necessary to protect our rights.

Thank you for your prompt attention to this matter. Kathryn Sheehan

As you can see, they wanted me to assure “that you are willing to immediately cease and desist from any and all use of dpreview.com’s intellectual property, including any images and content from the dpreview.com web site.” This would mean that I could not even quote some of their review text so that I could comment on it or criticize it. And of course this would severely limit me in exercising my right to free speech, so I couldn’t possibly agree with this. In addition, there was nothing wrong with my use of the dpreview images in the first place. So I replied as follows:

From: Karel Donk

Sent: Monday, November 09, 2009 9:03 PM

To: ‘Radliff, Lynn’

Subject: RE: Cease & Desist Hi Kathryn, In my blog post, which you mention in your email, I am discussing, among other things, the review done by DPReview of the EOS 7D. I quote part of their findings from the review, and offer my own comments and criticism on their review. I have included browser screenshots of their review images (not the original images) from the review which were relevant to my comments, to support my comments and criticism to show that THEIR OWN images show things that I feel they failed to mention in their review. I believe that this is “fair use” of the material. I would not be able to discuss their review and make my points if I could not quote some of their text and show SCREENSHOTS of SOME of their images, and my comments and criticism would not be possible. If you think this is not fair use, please let me know and also let me know why you think it is not, so I can consider taking the images down if I see that I am in fact infringing on dpreview.com’s rights. Regards,

I have yet to receive a response from them on my last email above. Dan Heller later told me that he thought I used way too many words in my reply, and that an email asking the following would have been enough:

Explain to me why you feel my use of the images doesn’t meet the four criteria established by the courts in fair use assessments.

And I couldn’t agree more. Short, powerful and to the point.

I thought this information might be useful to many people out there, as the use of copyrighted images on blogs is an often discussed topic on the Internet, and I think it’s going to be discussed a lot more often in the future as more people discover the Internet and start blogging. Certain use of copyrighted images on your blog is certainly permitted as long as you keep the “fair use” guidelines in mind. But I’ll leave it to experts like Dan Heller to talk about this subject more in-dept.

Update January 23, 2010:

There’s a nice article at Black Star Rising about understanding fair use. Check it out.

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