I believe you are correct when Oscar made this statement. He doesn't qualify as being uninformed. Nevertheless, his words was used relative to the number of lawsuits that was filed previously against single-image lawsuits is probably ONE (1) at most in the previous year or two. So, yes, going from ONE lawsuit a year to FIVE does appear to be a "wave" in that narrow context. For the average victim to "panic" going from ONE to FIVE boilerplate lawsuits means they are missing the bigger perspective.
However, I have discussed this very topic with Oscar and made my case to him. Although we got sidetracked from the discussion, Oscar did not refute my numbers as far as the proportionality of the assertion I am making. Please also keep in mind when I post this, it is not necessarily directed at "you" but an opportunity to share my thoughts with the larger readership ELI cultivates. Individual readers should extract those portions that are useful to them.
The fact that no one fought back doesn't mean much to me. It only means that for those parties, it was not worth the fight, unable to fight, or unwilling to fight. I can understand that. Not all fights are "worth it". For established businesses, sometimes, it is easier to pay someone off than to fight. However, don't take that to mean if any case went "all the way", it doesn't mean Getty would get a 5-figure ruling. They were "successful" in that Getty got some people to cave in and pay and sent a message publicly. I promise you that an extra amount of time was spent on those five cases that is not spent on most of the other hundreds or thousands of cases.
As far as I am concerned, I have access to Justia and Pacer. I don't have to take anyone else's word for the actual numbers of lawsuits because they are a public matter. I do the research myself and make my own determination. And I share my findings when I can. People can read and believe whatever they want.
The term "small business" is too broad. Without giving away my own personal strategies, let's just say that not all "small businesses" are equally vulnerable to lawsuits and legal challenges. The people they targeted were not that small as with most single or dual-member businesses. In many ways, being a single-member business is far superior in lawsuit protection than an "established" small business but most people view themselves as without defense. That is not true.
The assertion that Getty is batting 100 from 5 boilerplate lawsuits is viewing this from a small lens and tiny context. If that is your context, then I can't disagree with you. But it is a view that cripples and disempowers. My job is to look at the larger picture and translate it to how it might affect any given case.
Also, some may not be aware of non-Getty cases where people did fight back after being served and they were persuaded to drop the lawsuit. Those don't get a lot of publicity. There are easily hundreds of people who have not had to pay over the years but those folks will not brag about it publicly.
I have outlined many legal, non-judicial strategies over the years for those who are determined to fight back. They do not fit to everyone's personal or professional disposition or convention. If one is determined to use the conventional "hire a lawyer and sit back and watch" strategy, then as far as I am concerned, Oscar is among the best there is. Nevertheless, no lawyer can promise guaranteed results even Oscar. Additionally, Oscar is constrained by what a client wants. No matter how much Oscar may want to fight back, his primary interest must be to accommodate the client's wants and needs. And if the client's needs is to shun conflict, publicity, negativity, avoid risk, save time/energy, etc. then it is obvious. Settlement is the best, most effective solution.
I am personally facing a legal fight of my own (Chan vs. Ellis appeal in the GA Supreme Court) where Oscar is my lawyer. Without revealing my secrets at this time (because the case is still progressing), I can promise you as a client myself going into what is perceived as a very uphill battle, I have been very proactive and active behind the scenes and becoming involved in a way that most clients would never do. Even if I "lose", there is a high likelihood I will still "win" in a big way. It is all about context. I apologize for being cryptic, I wish I could tell more specifics but I cannot at this time because my enemies actively read these forums.
One analogy I will give is that I was very upset and angered with Getty for issuing an extortion letter to me 6 years ago. But now I can honestly say it was one of the best things that ever happened to me. It lead to the creation of ELI, meeting Oscar, many new friendships, and allies in life. Not to mention many write-ups in the press. Last year, I embarrassingly lost my case in defending against a sweeping protective order that essentially shut down an entire forum and the removal of over 2,000 posts on ELI to the point I left ELI disenchanted and disgusted for nearly a year. And yet, what is currently happening (and yet to happen) in my case might well be one of the best personal and business life experiences I will ever go through. We will be reporting more on this as events develop.
A strategy all clients need to embrace in all lawsuits is to become active and NOT be overly dependent on the legal system. It is not about sitting back and letting others determine your fight.
Fighting back on the legal front is an important front but it is NOT the only front. Using publicity techniques is quite effective and have been used by a number of Getty victims. Prior victims smartly have gone public and contacts media, a TV news story hits and then suddenly Getty loses their motivation to go after someone. We have seen this happen more than once. And Getty vs. Advernet also showed an example of how to fight back and be victorious even though they later abandoned their case. There are many successful techniques and they have been discussed throughout the years on ELI. But honestly, there are some techniques that will never be discussed publicly or freely because we know our "enemies" actively read our forums. You can thank them for being so attentive that we now have to censor ourselves.
There are ways of discouraging a lawsuit BEFORE it hits. And even if one were to hit, there are ways to deal with it also. The "new wave" of Getty's lawsuits doesn't materially change tactics one bit. In fact, if Getty decides to suddenly file 40-100 lawsuits tomorrow, there is a huge publicity opportunity for all the victims. We at ELI hopes this never happens as this would cause a great deal of stress for many innocent infringers but nonetheless, the publicity opportunity for ELI and extortion letter victims would be priceless.
We, at ELI, believe we are in the right side of this fight but we can only do so much. Ultimately, it comes down to how a victim thinks and behaves which makes all the difference. And even if one gets a letter and has to settle, it doesn't have to be a catastrophic event.
A wave of psychobabble by the uniformed? "I suspect that Getty will re-launch another wave at some point this year." Stated by Oscar Michelin earlier this week in regard to the question of the status of single image lawsuits. There will be another "wave" Oscar's words not mine, because they were successful. None fought back and Getty got their money.The numbers some are concerned about are how many of those that receive letters and subsequently are sued are incorporated small businesses. I think the percentage/risk of being sued would be higher if you broke that down, that is more of the point. Also we should discuss the strategy of where they are suing. Why were most suits filed in the 11th circuit? So far it is batting 100 for small incorporated businesses being sued for single images. None of Oscar's clients fought this (innocent or not)- they all settled and presumably for more than they were initially approached for in initial letters, as at a minimum they now had to also pay his fees. So I think it reasonable to discuss the strategy of this particular new extortion of suing incorporated small businesses because Getty knows they cannot represent themselves in court and when it will be cheaper to settle with them from the get go ie the first letter that asks the least amount - right or wrong.
Topic: Putting My Money Where My Mouth Is (Read 9242 times)