Friday, January 09, 2009

VPS, LLC + Pictage = Patent Highway Robbery?

I received this somewhat depressing e-mail from Pictage today...

Dear Valued Pictage Partner:

Last week Pictage completed a settlement of a patent infringement lawsuit brought against Pictage and some of our clients by VPS, LLC. Among other things, VPS's patents cover the online display of digital images and sale of products based on those digital images. VPS has licensed these patents extensively and requires that companies (including professional photographers) providing online sales of products based on online digital images pay VPS a license fee or royalty on all such online sales.

As part of the settlement with VPS, Pictage is paying a multi-million dollar fee for a license covering past and future online sales on All of your past sales and those you will make in the future on are covered by the license to Pictage and the fees paid by Pictage. However, it is important to note that any sales that you have made or will make on any other website (including your own) are not covered by the license to Pictage.

The fees that we are paying VPS make it impossible for Pictage to continue to honor our legacy commission rate of 10%. Effective immediately, our commission rate will be 15% of online consumer sales. Those currently at 15% will see no change. In addition, we will now charge a monthly fee of 1.5% (still substantially below the best available credit card processing rates) for all sales made though our Pictage Payment Processing (P3) system.

I thank you again for your ongoing support. If you have any questions, comments or concerns please feel free to contact me.

Best regards,

Jason B. Kiefer
Founder & CEO

Did a quick Google search and found this docket:

Which is probably the one that they are settling out of court and passing along to there partners. I wonder if SmugMug and Yahoo are next. I am reading this VPS, LLC patent and I think it is bogus. I assume Pictage hired some competent patent lawyers but rolling over to highway robbers like VPS, LLC sucks and makes the entire patent system suck more.

Every time one of these blood suckers gets paid, it attracts more of them, like moths to the flame.

Thanks to a gentle reader, Ryan, I now have the actual link to the patent:

Thanks, and as always, comments & feedback welcome.

[EDIT #2:]

Another (this time anonymous) reader pointed out a few other important VPS related links. They have sued HP, Shutterfly and some other big retailers. I am in fear...

I cannot find the dockets regarding Flickr (Yahoo) or HP, but that might be just from bad googling again.


Cory Trese
ph#: 937-609-9644


California Wedding Photography


At Friday, January 09, 2009 12:44:00 PM, Blogger Ryan said...

At Friday, January 09, 2009 12:45:00 PM, Blogger Ryan said...

I posted a link above to the patent itself.

Trying to sue a company for the sale of digital images online is like trying to sue every online store in the world for the sale of products online.

This thing is bogus and easy to defeat in court.

At Friday, January 09, 2009 12:56:00 PM, Blogger Kevin Swan said...

Um, apparently not easy to defeat in court.

At Friday, January 09, 2009 1:06:00 PM, Blogger Cory said...


I understand your sarcasm (I think?) but after reading the Patent ... I must disagree. I believe that I am actually in possession of 'prior art' source code written by myself and a development team in 1999.

Now, the interpretation of patents is not my strong suite, but that system (vintage 1999 and written in Perl4) but it allowed a user to select from a group of digital images and route them (system internally) to a kitting and printing system. Same thing Pictage was doing but we were making post-cards, not albums.

At Friday, January 09, 2009 1:07:00 PM, Blogger Cory said...


Thank you for the link. I must have been Googling badly because I could only find the brief.

Current Score:
Ryan 2
Cory 0

At Friday, January 09, 2009 1:11:00 PM, Blogger Ryan said...

If you think about the nature of the patent itself, it creates an anti trust lawsuit.

Target, Wal-Mart, Walgreens, Kodak, Apple, Microsoft, Google.... all companies that allow the uploading of digital high resolution images, and the purchase of products based on those images.

This patent would not hold validity in court. Just because Pictage is weak and wont stand up to the system doesn't mean it would have validity.

You'll remember when Microsoft had a patent on software systems that operated a personal computing device, they were eventually sued nearly out of existence for incorporating and restricting their software to only include and use their products.

This patent was created simply because some patent clerk received the paperwork, didn't pay attention and filed the patent.

Now we have to look at if the patent allows a company to violate the law. In this case, VPS technically "owns" the right to all online posting and display of digital images for the purposes of selling products based on those images...

That's an antitrust lawsuit in the works. Lets join together as professional photographers and sue VPS.

At Friday, January 09, 2009 1:42:00 PM, Anonymous Mihkel said...

" In this case, VPS technically "owns" the right to all online posting and display of digital images for the purposes of selling products based on those images..."

... so if I post a photo of my sofa for sale on a local site, will they require a cut from the sale of my sofa?

WTF can we do about all our wedding clients and online proofing?

This is as bogus as patenting the wheel!

At Friday, January 09, 2009 1:45:00 PM, Blogger Cory said...

I think maybe the best stuff to blog about is patents & photography.

Seems to make my blog mighty popular.

At Friday, January 09, 2009 1:49:00 PM, Blogger Cory said...


I agree, bogus. I also find it concerning that they named not only Pictage, but Pictage's best performing clients in the law suite (the photographers whos work was generating Pictage revenues.)

Nothing stops VPS, LLC from going after tons of small fish and looking for little settlements (just like MPAA and RIAA) from the entire world.

I put another post up with my e-mail (and response) from SmugMug. Perhaps we just need someone with more legal know-how than Pictage to fight VPS, LLC.

My concern is that they won't pick fights they will loose.

At Friday, January 09, 2009 2:28:00 PM, Anonymous Anonymous said...

VPS has already sued and settled with Kodak, Shutterfly, HP, Yahoo (Flickr), and other HUGE consumer sites. If they settled then why is Pictage the one who "rolled over"?

At Friday, January 09, 2009 2:31:00 PM, Blogger Cory said...

Anonymous Reader,

You're correct and I did not realize it. I think Pictage would have been well served by mentioning the fact that they are not alone.

I cannot believe that no one else has prior art on this patent though. HP even? Wow.

At Friday, January 09, 2009 2:38:00 PM, Anonymous Anonymous said...

Im a little concerned that people are jumping down pictage's throat on this when clearly the are small potatoes to some of the other companies mentioned. It doesnt look like anyone is at fault here......

At Friday, January 09, 2009 2:44:00 PM, Blogger Cory said...


I understand what you are saying, but I am member of those other communities as well (Shutterfly, Flickr, ect) and I was not negatively impacted by the settlements they negotiated with VPS, LLC.

Now, I am guessing that you are either an ardent supporter of Pictage or an actual Pictage employee. If you are the later, I understand your anonymous posting (but question the software engineers & lawyers you have on staff.)

Pictage clearly isn't the problem -- VPS, LLC is. In fact, I wish those other companies HAD made a bigger stink about VPS, LLC instead of giving them tons of money ... which they will use to turn around and sue everyone else.

The money Pictage paid may one day be used to sue me or you as individual studios over our (ubiquitous) soft-proofing systems.

At Friday, January 09, 2009 2:44:00 PM, Anonymous Anonymous said...

In all probability Pictage couldn't mention the other suits and settlements due to some legal constraints or confidentiality agreements.

At Friday, January 09, 2009 2:45:00 PM, Blogger Cory said...


You have beaten me on my own blog.

Current Score:
Ryan 2
Anonymous 2
Cory 0

At Friday, January 09, 2009 2:47:00 PM, Anonymous Anonymous said...

LOL! Not meaning to beat you though.
Happy New Year!

At Friday, January 09, 2009 2:54:00 PM, Blogger Cory said...

But you are totally right, gentle anonymous reader.

Pictage is not the one who should have fought this. HP and there patent hording friends at IBM should have put this down.

HP has an annoying habit of just settling with everyone who has a well written law suit.

HP has deep pockets, tons of lawyers and more patent defense experience than Pictage.

Instead of standing up and doing the right thing, HP funded VPS, LLC so they could afford to sue Pictage.


At Friday, January 09, 2009 2:59:00 PM, Anonymous Anonymous said...

You are right about HP. But I'm guessing that their lawyers, and those from the other companies, took a very close look at this and realized that fighting the suit would probably cost a lot more than settling. Unfortunately, many times, that's how it is these days.
And thanks for letting me stay anonymous.

At Friday, January 09, 2009 8:34:00 PM, Anonymous carrie said...

Has anyone thought that this is just a way for Pictage to raise their prices? How much did they pay? If it is bogus, then Pictage would know this yet still they are saying that they have to raise prices.

At Friday, January 09, 2009 11:15:00 PM, Anonymous Adam E said...

The lawfirm that represented Kodak against VPS, LLC claims that the lawsuit was settled "favorably" for Kodak.

See link:

I wonder what that actually means.

At Friday, January 09, 2009 11:17:00 PM, Anonymous Adam E said...

Carrie, I have also thought that the wording of the email from Pictage was worded in a way to scare you into using their service. Basically they tried to say, "You will be sued unless you use our service."

But that's just my opinion.

At Saturday, January 10, 2009 1:07:00 AM, Blogger Cory said...

Adam E,

In my experience the line "Case Favorably Settled" means that the client of the law firm reached a settlement that they found acceptable.

Often, this means that they paid some form of compensation believed to be far less than the potential punitive damages.

At Saturday, January 10, 2009 1:09:00 AM, Blogger Cory said...

"As part of the settlement with VPS, Pictage is paying a multi-million dollar fee for a license covering past and future online sales on All of your past sales and those you will make in the future on are covered by the license to Pictage and the fees paid by Pictage. However, it is important to note that any sales that you have made or will make on any other website (including your own) are not covered by the license to Pictage."

This part really does seem to say -- sell with Pictage and you're covered. Sell without us and you too will be required to make a multi-million dollar fee.

I like how they also point to all your 'past online sales' to drum up additional concern that VPS, LLC might be able to reach back to the beginning of time and charge you for each sale.

At Sunday, January 11, 2009 10:55:00 AM, Anonymous Anonymous said...

What about EBAY? Did they settle also with VPS?

At Sunday, January 11, 2009 12:10:00 PM, Anonymous Anonymous said...

My wife is a photographer and forwarded this discussion to me. I followed the link to the docket sheet provided by Ryan (I think) but that was little help. It contained links to the ECF site for the case, but only registered attorneys who pay fees can access that. Darn.

Oh, wait: I'm an attorney and I pay those fees. So, on I went.

The first suit was against Kodak in 2002. There was alot of tussling back and forth over discovery issues, lots of high powered law firms running up massive fees. In the end, it was dismissed pursuant to an agreement which I am sure was and is confidential. No trial, no Motions to Dismiss, no Motions for Summary Judgment or other proceedings that could give us some insight into the actual merits of the case.

The next one was against Shutterfly. It was originally filed in Chicago but was bumped to Oakland. Here, too, a bunch of lint-picking over discovery issues but, in the end, dismissed by agreement.

The last one was against Pictage. Here, there was not even much argument over discovery. I'm not signed on right now, but I don't think Pictage even filed an Answer (the responsive document that defendants must file setting out its basic defenses) before the case was dismissed by agreement. This puppy was over in less than 4 months, a legal micro-second.

There are some interesting aspects and I did link to and download some pleadings and "Letter Briefs". On their face, these discuss discovery disputes only, but they do shed some light on the general parameters of the parties' underlying disputes.

Let me know if you want to know more.

At Sunday, January 11, 2009 1:44:00 PM, Blogger krobert said...

Does anyone know how the lawsuit is worded? If people were to create a picture on line, add elements to the photo and want to send it to a printer, can they actually charge for ANY image on line that gets printed out? Is it the printer that is liable or the software company that helps you to create the image?

At Sunday, January 11, 2009 3:20:00 PM, Anonymous Anonymous said...

If you would like copies of pleadings. I'll need an email address.

Also, see:

At Monday, January 12, 2009 9:28:00 AM, Blogger Cory said...


I think the key would be how the patent was worded, not the law suit. The patent is available online, I linked it in from my post under EDIT #1

At Monday, January 12, 2009 11:24:00 AM, Blogger Ruth Rackley said...

I hope ya'll can help educate me as I stumbled on your conversation after I received Pictage's letter and decided to do some researching. Is the patent for only companies that put up web images and then have a direct connection to a print source? Would Photographers using their own carts such as Picpick be considered something different? or lumped in with those like pictage and smugmug.

At Monday, January 12, 2009 11:53:00 AM, Blogger Cory said...


The way I read the patent it covers a "digital data management and order delivery system" which pretty much means a file-storage/soft-proofing management system with a shopping-cart and order production workflow.

The exact language of the patent is difficult for someone who doesn't work with software IP (I do, actually.) The patent attempt (very broadly) to cover a system where the end-user (customer) reviews files/photographs/digital artifacts in a "digital data management system" (database) and selects one or more artifacts from that database for routing to an order fulfillment system.

If this patent covers Pictage and SmugMug, it certainly covers Picpick.

Now, we did have an anonymous legal-eagle on here (not to be confused with anonymous Pictage employee) who might have additional insights.

At Monday, January 12, 2009 11:54:00 AM, Blogger Cory said...

>> VPS has already sued and settled
>> with Kodak, Shutterfly, HP, Yahoo
>> (Flickr), and other HUGE consumer
>> sites. If they settled then why
>> is Pictage the one who "rolled
>> over"?

Because it turns out Pictage didn't even fight it ... 4 months (really, a legal nanosecond.)

HP et al. fought it and possibly beat VPS back without impacting customers.

Did Pictage even have time to do decent discovery?

At Monday, January 12, 2009 12:01:00 PM, Blogger Cory said...

More blog posts about VPS on my site.

At Monday, January 12, 2009 12:02:00 PM, Blogger Cory said...

And the response I got back from SmugMug

At Monday, January 12, 2009 1:48:00 PM, Anonymous Anonymous said...

Once again, people on both sides failing to do their homework. Prior to 2000 there were several companies with online image database where editorial clients could order images for publication. All-Sport, Getty Images, and bunch of other stock image companies were using online database of photos for commercial and editorial clients.

In addition, ImageFolio (, an online image database with the purpose of displaying images on the web for ordering, was first made available in 1999.

In 1999, my business started selling running, triathlon, and prep sports images online by posting low-res images (soft proofs) and taking orders via the web. In 2000, we integrated PayPal into our ordering system.

Yes, there is prior art, all over the place if attorneys know where and just take the time to look to invalidate all or most of the claims.

At Monday, January 12, 2009 3:13:00 PM, Anonymous Anonymous said...

Cory said:"Because it turns out Pictage didn't even fight it ... 4 months (really, a legal nanosecond.)

HP et al. fought it and possibly beat VPS back without impacting customers.

Did Pictage even have time to do decent discovery?"

Again, companies with pockets much deeper than Pictage fought it and then decided to settle. Why should Pictage have wasted time and money instead of just settling like all those other comanies did in the long run?

At Monday, January 12, 2009 3:16:00 PM, Blogger photoqueen said...

So what do the pictage customers do? I feel like I've had the rug pulled out and with business not being great...why are they punishing us for their problem?
what can we do?

At Monday, January 12, 2009 3:23:00 PM, Blogger Cory said...

Anonymous-Pictage Fan:

Two wrongs do not make a right.

Just because HP and Yahoo did not go to court does not mean they paid VPS, LLC like Pictage.

At Monday, January 12, 2009 3:30:00 PM, Blogger Cory said...


Good question I am sitting here wondering the same thing. I am looking at other services to build a hybrid to replace Pictage in my workflow.

I have always found Pictage's Products to be great, for example, the printed albums are wonderful.

However, Pictage's service has been OK sometimes and abysmal other times.

And lets not start talking about Pictage's Web Site which to me (and most of my clients) seems like a big hot mess.

It has all the trademark problems of a web application cobbled together from legacy components without any overarching architecture or usability engineering. I mean, seriously, did they do ANY heuristic analysis?

As a result, I am only using a very small part of Pictage. I was using it for everything (proofing, designs, print orders, albums) but my clients complained about the site so much I switched to SmugMug Professional for soft proofing and print orders (both my own and client-driven ones.)

I am staying with my Pictage account at least until I find another way to get the album designs, printing and binding done by a company (maybe even Pictage's suppliers) that doesn't encumber the process with Pictage's software and expense problems.

At Monday, January 12, 2009 3:31:00 PM, Anonymous Anonymous said...

they are too expensive anyway.

At Monday, January 12, 2009 8:59:00 PM, Anonymous Anonymous said...

Anonymous "II" here. I'm the lawyer.

I posted under "Anonymous" only because I didn't know how to post otherwise.

I'm a trial lawyer, not a patent lawyer. 27 years ago, about the time I was feeling my trial lawyer-oats, I heard the phrase "file-wrapper estoppel". I knew about all kinds of estoppel, but "file-wrapper estoppel"?! That was news to me and I was way too busy paying bills with normal, everyday stuff to learn something as high-minded sounding as "file-wrapper estoppel". Leave that to the patent lawyers.

But if any of this list-serve (blog) members want copies of pleadings from the VPS litigation, I am, within reason, willing to serve.

I'm flattered by Cory's {presumed} reference to me as a "legal eagle" but, in the area of patent law, I'm no such thing. I am a mere conduit.

BTW, my email address is, for those who want it, is

Anonymous no more, I suspect.

Jay Dunham

At Monday, January 12, 2009 10:18:00 PM, Blogger Cory said...


Thank you for visiting my blog and for your informative comments.

Is file-wrapper estoppel the same as prosecution history estoppel? I am totally confused by this concept, however, in the context of sealed proceedings and settlements.

If you cannot "change your story" so to speak as you file infringement cases, what ensures that this does not occur when the discoveries and response documents exchanged by the parties to the case are later sealed?

Do the judges presiding over the later cases have access to sealed court records? What about out-of-state sealed court records?

At Tuesday, January 13, 2009 5:04:00 PM, Anonymous Anonymous said...

Jay here. I should learn how to post here using my name.

I don't think that the pleadings are sealed. I will find out this evening when I go home and download more than I have so far, as I've had several requests from your loyal readers.

I said the settlement was probably confidential. Somewhere is a document, for each case, entitled "Settlement Agreement" or some such thing. It sets forth the terms of settlement between the Plaintiff and the Defendant. Somewhere in that document are the confidentiality restrictions.

The Court has little or nothing to do with the settlement or its confidentiality. That takes a course separate and apart from any party's request that the record (pleadings, etc.) be sealed.

Such private settlement agreements are becoming more and more common. There is much debate in the legal community over whether that is in the public's best interest(s). Often there are compelling reasons for such confidentiality, but more often there aren't. If there is an articulable and competing public interest in disclosure of the settlement terms, it would be interesting to see a 3rd party come forward and attempt to compel disclosure.

But, like 24-hour banking, "I haven't got time for that".


At Tuesday, January 13, 2009 5:50:00 PM, Blogger Terry Thomas... the photographer said...

So if I set up a computer running Microsoft Home Server, put photographs on it that I shot and take orders from my clients that I suddenly owe a piece of the action to VPS???

No f***ing way!

Someone needs to squash these roaches!

Terry Thomas...
the photographer
Atlanta, Georgia USA

At Thursday, January 15, 2009 1:24:00 AM, Anonymous Anonymous said...

Well it appears I will have more colleagues over at SmugMug with me now. I left Pictage years ago because of service and customers complaints about how difficult they found the site to order so their fees won't bother me.

However, I'm sure SmugMug will be one of the next on their list, I do wish someone would stand up to them however. There is no way with previous ordering systems in place they can hold a legal patent nor can they hold trust on all images ordered everywhere.

I would assume they have done their homework on who rolls and pays out of court most. I don't see them attacking newspapers who almost all currently sell images online.

A sports photo company in Illinois tried to halt the newspapers from selling images online, claiming they had exclusive photog rights and even tried to keep us PJs out of a state tournament, they didn't win that battle with the press association.

I wonder who holds the patent on "online shopping carts" and does every site that has one have to pay them also?

uff da

At Thursday, January 15, 2009 7:38:00 AM, Anonymous say cheese said...

So where do we go from here?

At Thursday, January 15, 2009 7:51:00 AM, Anonymous say cheese said...

Has anyone looked at this....

At Saturday, January 17, 2009 3:52:00 PM, Anonymous Anonymous said...

In early 1996 the APS photo system was being introduced at the PMA show. Also at this show was the introduction of new digital products and talk of the then new "cyberspace". Although the APS marketing efforts overshadowed the digital offerings (what's APS??), many of us were more interested in the new "cyberspace" and had already invested time and money toward displaying photos on the internet for sale. There were so many people talking about web sites that at that point the idea was without a doubt in public domain, and anyone with the tools(that were available at that show), and minor skills could be selling pictures online in no time.

Prior Art:

PMA international convention:
Durst Dice America displays to the public its OPUS (On-Line Photo User System)for storing, selecting and production of digital images.

PMA Industry Trends Report 1995-1996:
Wolf Camera and Video, Atlanta Ga, introduced the Wolf Photo Net On-Line Photo Center, allowing customers to access their pictures on the internet.

PMA Industry Trends Report 1995-1996:
Photographers around the globe chronicled cyberspace and uploaded their images to the internet as part of "24 Hours In Cyberspace" They documented how the online digital revolution changed peoples lives.

PMA Industry Trends Report 1995-1996:
Seatle Film Works, Seattle, Wash, launcehed a new service enabling photographers to build their own Web pages on the internet.~~~~

PMA Industry Trends Report 1995-1996:

NEW YORK, July 18 /PRNewswire/ -- Applied Graphics Technologies,
Inc. (Nasdaq-NNM: AGTX), the largest provider of outsourced digital
imaging and archiving management services in the country, today
announced it will operate its Digital Link imaging system in a mobile
unit on site in Atlanta to provide immediate scanning and handle remote
transmission of Allsport photography taken at the 1996 Summer Olympic
Games ~~~~~~~~~~~~As a byproduct of the scanning service, the Olympics images will be
simultaneously added to the existing Allsport on-line archive of
100,000 images, which is supported on site by AGT in Los Angeles and

Kodak Files for patent 6017157 ----

"Method of processing digital images and distributing visual prints produced from the digital images"

Awarded the patent 01-25-2000

As a small business person litigation is quite expensive, even to prove the obvious. If this is to be put to bed once and for all it will take a group effort.

At Monday, January 19, 2009 4:34:00 PM, Blogger Kevyn S said...

Which group is going to gale the group effort? Organizations like the PPA need to get involved.

I just joined Pictage on a trial basis, and this makes me want to just stick with SmugMug and work around their many weaknesses. I agree that this VPS group of swindlers are the ones really at fault, but it also sounds like Pictage is a bunch of nutless wonders who rolled over rather than fight a 97 pound bully.

At Thursday, January 29, 2009 7:22:00 PM, Blogger up-per guy said...

This is worse than a used car salesman... someone who didn't create, didn't market, knows nothing of the product, and expects to be be paid for nothing... wait... I was wrong- it's like what we learned from history class. This is parliament taxing us for no purpose other than making themselves more money.

I tell them GTH...

Carl Caylor

At Saturday, April 18, 2009 4:47:00 PM, Anonymous Chris MacAskill said...

This comment has been removed by a blog administrator.

At Sunday, May 15, 2011 9:09:00 PM, Anonymous big and tall suits said...

Thanks for the video,If you think about the nature of the patent itself, it creates an anti trust lawsuit.

At Thursday, September 20, 2012 3:03:00 PM, Blogger Jimmy Daly said...

Hi Cory - Thanks for posting this article. I used it as a source for an article on SmugMug. It is my belief that patent trolls are responsible for their recent price increase.

At Wednesday, March 26, 2014 12:07:00 PM, Blogger Gary Fong, Author said...

Someone pointed out this thread to me. What VPS's patent detailed was the way to use a small sized "proxy" image to refer to a database of high resolution images for output. It was a good patent, and of course, was enforceable.

At Wednesday, March 26, 2014 12:17:00 PM, Blogger Cory Trese said...

I'm certain that there many who would disagree about it being a "good patent" however, I must say I'm honestly flattered to see Gary Fong posting on my blog. When I was working as a wedding photographer, your gear was among my most used. Respect!


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