DoctorC - 6:53 pm on Aug 19, 2011 (gmt 0)
I hear you and I agree with you about the word "accidental." But so many people get images from Google Images or Yahoo or wherever and they don't know that it is not public domain. They did not intend to take licensed art. I have a case where the website was not done by me or my people, we hosted it. Getty is going after the hosts first. You know the link at the ottom that says to contact the WEBMASTER or similar.. Getty goes after that. The author is probably the business owner's high school kid or some outside consultant.
I cannot prove if the image was taken by my hand or that of another person. Getty Does not care. So if the person that created to the site is now living somewhere in Costa Rica or Panema, I can only point to a map for that. But Getty says that I am responsible.
"Accidental use" is meant to be "unintended" or "not willful." Look at the law on theft as an example. If you buy or have stolen property (and that is discovered), it goes back to the original owner. But were you a thief? So posession is not necessarily theft and that is the problem, you need to prove to Getty how you got it, but the thief is in Costa Rica or Panema and that thief did not know that the Google Images site contained Rights Managed materials.
I want to note that we license all of our images and in the next year we'll proably buy about 500 more images for projects. So we intentionally play by the rules, but our site "accidentally" had an image from someone elses web development. If I had filed the DMCA provisional filng for about $135.00, then I would have had some protection as an ISP hosting the site and then I could have pointed to a map of Costa Rica or Panema and say "Hey Getty, he left the country, I only had his GMail address."
Look at AOL, Comcast, RoadRunner, Cox, Etc. and all of the server bank hosting solutions like 1and1 or GoDaddy. How many accidental media items are they hosting? Probably millions.
Educating my clients and having you educate all WebMasters to inform their customers is a good thing. Saving bandwith is a good thing. Having Webmasters protect themselves with proper filing of the safe harbor provision is a good thing because we don't want you to accidentally get sued for something that you did not write, download, author or steal and where there are 1,000 images at an average price of $4,000.00 each. That would be some accident, right?