Possible reasons for class action suit against Getty in the USA

[SoylentGreen]

Matt speaks well.

However, I disagree a bit with a couple of points.
Firstly, we ARE talking about a LEGAL EFFORT in COURT.  So, we simply cannot take the actual legal issues out of the discussion.
Secondly, while it's fine to discuss a class action, what's being lost here is that one must have a WINNING CASE.  I don't see this.

Matt speaks of the marketing, and non-legal efforts, and he has a good point.
But, starting an actual legal case is different.  Whether we like it or not, it's about the laws and the money.  Not, SEO or marketing.
A reality check is in order for sure.

Additonally, it's a bit odd to imply that the fight isn't about a "class action" or "legal cases".
But, to then discuss it anyway, and brush off any unpopular opinion even if it's backed up by concrete facts.
If my reputation or money was at stake, I'd fight much harder than this, of course.  So, some are actually getting off easy.

However, I'm basically done wasting my breath.
If PicScout is "hacking" everyone, and people believe that, so be it.  But I don't.
If people can start a class action with hackneyed ideas, more power to you.
You're going to get eaten alive.

S.G.

[Mulligan]

I wish Ian all the best with his class action suit in Israel.

With that said, I appreciate SG's approach and agree with his bottom line thinking that ultimately all about what will win and what will lose in a court of law.

I figure Oscar would be all over a class action lawsuit the same way I'm all over free Oreos and milk if he thought he could build a winning case. And, again, as SG has pointed out, Oscar has repeatedly made it clear that he didn't see a way for a winning class action in the U.S.

For me, at least at this point, the best way to fight these folks is to poke fun at them when I have the time, as well as to support those just getting started with the process by sharing what I've learned from the ELI team, the regular forum posters, and from my own experience dealing with the trolls for a year now.

Though I don't know that I qualify for "forum regular" status, I think of myself as a "regular" so I'll just click the "Post" button below to feel that I've done my duty to drop in my two cents worth.

[Matthew Chan]

I think there was a passing comment how the "regulars" were not posting on this issue. So I decided to chime in with a few important points.  We all gravitate towards different topics of interest.

I am not trying to minimize the legal discussion issue is important or significant but that is not my forte' and not my battlefront.  This is Oscar's battlefront. That is why we are business partners on ELI. If and when Oscar decides to chime in, he will.

The point of a community is so that we can further the mission on different fronts. People should not be offended if I or Oscar don't actively push an agenda or course of action.

We have to remember that most attorneys have specialties.  Oscar is NOT a class-action attorney and he has said so.  There may actually be a case somewhere but where is our figurehead client to begin with.  Who will that be?  And do we have a class-action law firm willing to take it on? Who will do the search?

I have learned from personal experience if you look hard enough, you will find a lawyer that will see things your way or come up with an angle to help your cause. So with all the talk in the last few years about class actions, the fact is, it's been just talk. Who is going to step up and DO SOMETHING?

Scraggy appears to have done "something" meaningful and we get to learn from it.

No one is necessarily asking my advice but this is the strategy I would use.

Find a "good" figurehead client that someone can rally around and tell a good true story. Someone that is somewhat media friendly or at least receptive. That client has to be "shopped around" to the various class-action law firms with some "incentives" that the lawyers can and will make money and get high exposure of doing the case.

From there, a story and legal argument can be built around the client. I know this is a bit contrary to how some might think but that is how I think and work.

It is entirely coincidental that Robert and I have similar points of view on the issue which is why we are not terribly active on this.  But don't take that as an affront on anyone.

We can't be "leaders" or "experts" on everything. We can't spearhead every effort either.  I do what I can with what limited time I have. I have already provided full disclosure of my role on ELI since the beginning of 2012.

For what it's worth, short term, Robert, Oscar, and I are working on growing the "ELI Factor". It is our next "tool" and "platform" to expand the ELI reach and influence. It is important on so many levels that I cannot get into here.

But other community members can continue on.  If you guys want to pursue class-action, great but I highly recommend making it a more tangible endeavor than a legal discussion.

I am happy to say we have a good number of regulars nowadays and I love you guys and gals!  I almost need a scorecard to keep up with all of you and your various talents and personalities!  :-)

[SoylentGreen]

Good post Matt.

It's unfortunate that Oscar doesn't have more time to post here.
But, I realize that's not his job and he's busy.

There's a problem with shying away from "legal issues" and what I call "meaningful discussion" (it's the opposite of bullshit btw).
The problem is that your site will only attract the "bitch and moan" crowd, the "got letter wut do?" crowd and the clueless "somebody file a class action" crowd.
I know that you wish to run this more like a business, so that it can be self-sustaining.  But, the type of people that I've listed above are less likely to be "paying customers", in my opinion.

Personally, I think that the more B.S. postings that you have on here, the more it erodes ELI's reputation.
Now, I'm not saying that you should somehow stop people from posting, or that my "yardstick" of what counts as B.S. should be the litmus test.
But, you can combat the garbage by actively encouraging better contributors to come here.
I do not feel that you are actively encouraging meaningful legal discussion.
If that's not a priority for you, that's your business.  But, you miss out on that demographic.  People won't come here for crap.
Additionally, the intelligent people will depart, and you're left with the class-action/PicScout conspiracy herp-a-derp demographic.
You actually want that as your group of core contributors?

But, yeah.  I don't blame you for not wanting to get into the whole "class action" discussion again.

S.G.

[Moe Hacken]

S.G., just wanted to clarify a couple of things. My disagreement was with your statement that this group can not be bothered to talk about class action. That's not true in my case, and I will again speak for myself: I can totally be bothered to talk about class actions.

Also, I did not state that PicScout has ever been accused of hacking. My contention is simply that there may be ways to make it more difficult for them to operate. Such as requiring them to register as investigators and report to oversight agencies on their activities. How about letting us know how much of our server they crawl and how often.

I stated that I could see your point that Scraggy's argument may not work in the US and proposed we discuss other possibilities, such as PicScout's legal standing. Maybe you think this angle is also flawed and I'd be the first to admit I'm not a legal expert. From what I understand neither of us went to law school.

Well, PicScout's legality IS being challenged by people who went to law school. I posted on that topic but the post is in the forum that deals with bitTorrents and porn trolls so maybe you missed it. It may have some implications for image trolls as well, which is why I posted it on this forum originally.

So what was new about that? The claim that PicScout can not operate in California without being registered as a private investigator. I believe that's a new twist in the discussion of PicScout's legal standing. That case has not been heard, we'll see what happens to that.

There is plenty of legal activity with regards to electronic surveillance and its implications in the US. The law can and does change with the times and perhaps it's not a bad time to revisit the topic. Windows may have opened while we weren't paying attention.

I'd also like to clarify that I'm not stuck on that issue. I see it as a remote possibility and I do understand the huge effort it would take to launch a class action, especially one based on constitutional issues and civil rights. If indeed the legality or validity of PicScout is the wrong angle, then perhaps we can move on to discussing yet another possible strategy.

Matt's public relations blitz method is certainly effective on a troll-by-troll basis and is certainly a lot more fun than class actions and extensive legal research. Yet the legal strategy could result in permanent policy change would go a long way towards exterminating future generations of trolls. We certainly don't want the current generation to go forth and multiply like HAN/VKT wallpaper, do we?

I bet you agree with me on that last point!

[Matthew Chan]

This post is DIRECTLY addressing SG's concerns.

I am NOT shying away from legal issues. If I did, I would never have found a "legal partner" in Oscar. However, he gets here when he can. What am I supposed to do? Fire Oscar and find another attorney to post here more frequently for free? Not likely.

I can get into the legal issues and have frequently done so in the past if people have followed my ELI work over the years. But I have to be selective. And If someone discusses something that I absolutely disagree with or feel someone is incorrect, I have no problems about (and frequently do) speak up.

One challenge with us non-lawyers discussing legal issues is that we are NOT recognized in the court system unless we represent ourselves? How many people are going to do that?  Even if we are willing to hire a lawyer, how many people are going to be proactive enough to study up to help guide the lawyer?  I have done so but I think I am in the minority. Most people entirely rely on lawyers.

We now deal with attorneys who can't even agree amongst themselves!  Go look at the Getty vs. Advernet, Corbis vs. Starr, and Masterfile vs. Chaga cases.  Those are some smart (and legally recognized) lawyers going at each other who truly believe in their respective sides. I win a lot on my own legal and other business confliect issues and so does Oscar in his own practice.  But we both know there is a LOT of uncertainty putting your fate into the court system.  Should we be afraid to do so?  No.  But it is expensive, uncertain, slow, and energy-draining.  It also plays to "other side".  So many people want to use that battleground for conflict resolution. That should absolutely the LAST place for conflict resolution.

I know some of us here want to make some permanent changes. Some want new legislation, new rules, business practices, etc. However, the core ELI audience are individuals, hobbyists, entrepreneurs, bloggers, web developers, etc. wants solutions NOW, not these sweeping regulatory or legal changes years from now.

Most don't care about the legal issues even AFTER getting the extortion letter.  So, it has been my job to simplify the learning curve and deliver simple solutions in a quick and easy way.  And even if they did, then what?  Do I suggest people to lawyer up or try to outlawyer the opposing lawyers? That is expensive and plays to the other side. It is what they count on (among other subtle factors).

Without taking anything away from Oscar's legal contribution, a good portion of what ELI does to help people is to NOT bog them down with legal issues. I know that might rub you the wrong way philosophically but I am very pragmatic.

The ELI Support call is a 30-minute crash course and distillation of EVERYTHING I know and have studied for the last 4 years. It isn't as easy as it sounds to know what to hit and target within such a short-time frame.

The whole issue of class-action is so far off the track of the day-to-day solutions than most new people want. I have to dumb everything down and I have to focus on the most essential legal issues they need to know.  I am in the media and publishing business and the less informed and less backbone people is where the money comes from.

That is not to diminish the regulars and old-timers.  You guys provide a ton of content, advanced discussion, ideas, inspiration, and old-fashioned help to new people coming onboard.

Another fact is all the education in the world and advanced legal theory is entirely lost with so many people because they have no spine or have zero legal experience to be able to digest it or integrate into something useful into their reality.

I am not discouraging good legal discussion. But quite frankly, I have limited time and mental energy. I have to direct them to efforts I feel have the largest impact.  And fortunately/unfortunately, at this moment in history of extortion letters, making the largest impact does not require these advanced legal discussions.

Certainly, I don't want the forums to be a free-for-all and people recklessly spouting off at the mouth. But to the degree the community can, we self-patrol.  But I don't want to patrol so hard that new ideas and concepts are squashed.  I have gotten and implemented so many little ideas that people offer up even in passing. Some discussions may be off-base and a bit kooky but we can't get so heavy-handed to make people feel like they have to be law students to jump into the discussion. We have to exercise some degree of tolerance. Sometimes we nudge gently, sometimes we hit people between the eyes. It all depends on what is being said and the context.

Believe me, I absolutely cringe at the posts "Got letter, what now?" but it is part of it.  Everyone is very quick to say nowadays, "go do more forum reading". If people won't do more reading, there are paid options which DO help support ELI.  Those "new" people help subsidize the time I spend writing this long response that will probably generate me no direct revenue.

Of course, I support and encourage accurate legal discussions. But don't forget that even the attorneys can't agree amongst themselves. It isn't a matter of credentials or lack of schooling.  What chance do we have here that we will agree on everything?

I agree with the statement that there is a demographic that wants and need the advanced discussions. But that is a very small segment.  The lion's share of ELI's current financial model is helping those that are unable or unwilling to self-represent. They need and want the help.

The ELI Factor hopefully will grow large enough to earn some sponsorships or advertising.  At the very least, it will expand our SEO presence, it leads us to expanded networking, and other business opportunities.

It is a bit of a balancing act to keep the "regulars" and "old-timers" interested. Oscar and I offer ourselves as part of the ELI community.  We invite people into the "inner circle" for those that might be interested. There is a small level of camaraderie, friendship, recognition, exposure, self-promotion, etc. for those who feel it is "worth it." I try to allow every "regular" to spread their wings in a way they want to.

If what I am doing is not enough, then there it is.  If the forums ever degrade and degenerate to an unacceptable level and no one wants to help Oscar and I, then we simply lock down the forums and no one posts anymore.  We let the existing database forum stand by itself and stop all the incoming dribble.

I do not yet feel we have degraded to dribble. But I do have a contingency plan.  The forum becomes a stagnant database of information with a huge Google presence.  And ELI becomes a big digital billboard where we funnel the people who need help to paid services. Not very inspiring but I am confident it would work.

I know my answer may not be terribly inspiring but that is how it stands now. Maybe one day in the future, Oscar and I won't have our businesses or time allocation issues to worry about. But for now, it is a matter of priorities.

If someone wants to take on the job to spearhead and enhancing the "quality of legal discussions", I am open to working and appointing  someone qualified to do so.  The current ELI volunteer roster is Robert, Jerry, Oscar, and me.  Robert doesn't seem to want that job. Jerry seems happy where he is at. I believe Jerry does enhance the legal discussions but will he lead them? We have to ask him.  Oscar is qualified but time is too scarce for him. I cannot "live" in the legal discussions arena for reasons I have already discussed.

I hope this explains why I don't devote my energies to the class-action effort. I got more than enough on my plate than to focus on that. But I don't let that stop others from pursuing it. That is why we have the forums to let those who are interested connect up.

[Couch_Potato]

S.G.

I agree with you that having too many discussions of little relevance of interest devalues a forum. I'm sure we've all been on one but I think you're being a little harsh in this case.

I know Class Action Suits have been discussed but from what I've seen on many forums they've been along the lines of "Let's start a class action suit for this extortion" etc without any meaningful starting point.

In this case Scraggy asked a specific question regarding two collections from which Getty distributes images. He did this on the basis that he himself has started a class action lawsuit and wanted to discuss the particular merits of that in the USA.

I understand his Class Action Lawsuit is relating to a different company but within that he is also arguing that some of the images tried to collect on in Getty's name weren't even exclusively licenced to Getty (or so he believes).

I disagree that asking a specific question on a topic that may or may not have been discussed before devalues the forum.

[Robert Krausankas (BuddhaPi)]

I'm really looking to moving on here, and not have anybody's panties in a knot, we're all on the same team!
So I will cut to the chase and answer Scraggy's questions..

"Approximately, 5% of the images involved the "Dorling Kindersley" or "National Geographic" collections.
Until you mentioned these collections, I have NEVER even heard of them.
How many people in the USA have paid Getty a settlement for images from these two collections?
None that we had heard of.
Oscar may have a statistical sample of letters on which to base an estimate?
He's a Lawyer not a statistician!
If it is a statistically significant number, is this a possible class action suit?
Probably not at this time
Are there other collections similar in nature to these two?
They have many collections, but i'm not researching it.

"My main question: Is Getty also sending demand letters in the USA for the two collections mentioned above?
Not to my knowledge

If so, wouldn’t this be outright fraud?"
Perhaps, but Getty RARELY files suit, are you going to sue them for fraud for sending a demand letter??

While I agree that it is important to have the "Legal Discussions" and quoting law, ect, the simple truth of the matter is that until Getty starts filing suits left and right over single images, it's all moot, when and if this starts happening I'll be more than happy to jump on the bandwagon.

[Moe Hacken]

For those who are interested in the finer legal possibilities, I'll go back to the legal article originally posted by Ian when he first announced the class action in Israel. The law professors who wrote the article offer some ideas for correcting the abuse of what they term "strategic litigation," which we affectionately refer to as "copyright trolling." They state:

After uncovering these problems and analyzing their implications for prevalent understandings of rights in the jurisprudential and economic literatures, we identify mechanisms that our legal system ought to adopt to fend off the threat to the integrity of its rights-based design and bolster the protection afforded by rights. These mechanisms include heightened court fees, fee shifting, punitive damages, and various procedural safeguards. We submit that under the appropriate design, they can go a long way toward countering the strategic abuse of rights.

Their proposed solutions start on page 41 of this article:

http://works.bepress.com/cgi/viewcontent.cgi?article=1031&context=alex_stein

SPOILER ALERT: On page 48, the authors wrote:

Giving judges broad discretion to counter strategic litigation with punitive damages will not only deter strategic litigants, but will also motivate the innocent party to take her case to court. The introduction of punitive damages will radically reshape the payoff structure faced by innocent entitlements’ holders. Currently, they have no financial incentive to go to court. For the reasons we explained, from a pure financial standpoint, settling the case out-of-court always dominates litigation. However, once the possibility of collecting punitive damages is introduced, it will make sense for many innocent litigants to defend their entitlements in court.

In other words, make it more of a risk for the trolls to drag people into court with their fatuous claims and create an incentive for the victims to defend themselves instead of rolling over because of the economic considerations. The trolls already avoid actual litigation like the plague. The courtroom has not been very good to them. They've lost many cases and the few victories they have enjoyed have been pyrrhic at best.

I agree with Matt that the courtroom should be the last resort, but that may be the best venue in which to defeat the abuse of rights. Meanwhile, the media and public relations blitz continues to be as sound of a practice as ever.

[Matthew Chan]

As Robert said, we are on the same team here. But we are also individuals who are bound to have different takes on any given topic. I think it is safe to say there are elements that people will agree with me on and there will be others that people won't agree on. We should all not try not to personalize it too much.

Quite frankly, I do grow weary of some of the repetition that occurs on the ELI Forums such as class-action lawsuits. However, what is absolutely new and of interest is that scraggy is doing something new in Israel.  It isn't like a new person who suddenly rolls in and says "Got letter, someone should class-action to stop them in future!"

With as much activity that goes on nowadays on the ELI Forums, it is hard for any one person to keep up.  There is also new information coming in both large and small.

What I say is that people should participate in those areas and topics they are interested in and passionate about as long as it is relevant to fighting copyright extortions. It doesn't require any of the ELI Defense Team members "endorsement" if you want to follow your thread of passion. Who knows? We could be swayed and jump in.

If a thread of discussion makes someone unhappy, just leave the thread.  If something is otherwise inappropriate or out of bounds, email me or Robert. We will take care of it.

[SoylentGreen]

Fair enough, guys.

I guess that it's simply gotten less interesting for me.
I'm not implying in any way that anybody owes me a thing, of course.

S.G.

[Couch_Potato]

Seems at the moment there's either been a dip of activity or not enough letter recipients coming forward .

I wonder if the dip in activity is the usual Getty letter dip in between a new extortion letter run or if it may be something to do with the possible upcoming sale or public listing. Maybe trying to keep any negative publicity out of the spotlight. Around the time of a public listing it's a lot easier to get coverage for the negative aspects of a companies behaviour so is it possible they are laying low?

Lack of new stories to discuss does lead to speculative threads such as this.

[Matthew Chan]

We have found that news comes in waves.  There are quiet times then suddenly, we get a ton of new information and submissions. There are also many who simply don't post.  They directly hire Oscar or hire me bypassing the forums entirely.

It has always been the case that people who post are far fewer than those who lurk and read.

Copyright extortions are still alive and well I am afraid.

[lucia]

Matt:

4. Class-action is a perfectly valid topic of discussion but a few of us don't care enough about it to spend time on it.  I am one of those people.

Me too.

SG:

If PicScout is "hacking" everyone, and people believe that, so be it.  But I don't.

I also don't think PicScout is "hacking" anyone.  Moreover, even if they are "hacking", none of the letter recipients has even one iota of evidence they are "hacking".  As far as I can tell, Picscout visits publicly accessible web pages.

Moe

Quote
Giving judges broad discretion to counter strategic litigation with punitive damages will not only deter strategic litigants, but will also motivate the innocent party to take her case to court. The introduction of punitive damages will radically reshape the payoff structure faced by innocent entitlements’ holders. Currently, they have no financial incentive to go to court. For the reasons we explained, from a pure financial standpoint, settling the case out-of-court always dominates litigation. However, once the possibility of collecting punitive damages is introduced, it will make sense for many innocent litigants to defend their entitlements in court.

In other words, make it more of a risk for the trolls to drag people into court with their fatuous claims and create an incentive for the victims to defend themselves instead of rolling over because of the economic considerations. The trolls already avoid actual litigation like the plague. The courtroom has not been very good to them. They've lost many cases and the few victories they have enjoyed have been pyrrhic at best.

I agree with Matt that the courtroom should be the last resort, but that may be the best venue in which to defeat the abuse of rights. Meanwhile, the media and public relations blitz continues to be as sound of a practice as eve

I'm a little puzzled. It's not clear to me if you are suggesting we write our congress critters to encourage they change copyright law so that it "[Gives] judges broad discretion to counter strategic litigation with punitive damages...".  or whether you are suggesting we should pursue a class action suit ( for something Getty might have done.)  But the two actions have little to do with one another.


Either way, here is my view: If you want to write your congresscritter to change laws, I would suggest you draft a letter-- maybe contact this law professor and see if he will help you draft the letter. Or maybe try to form an activist groups working toward changing these letters.   Then, periodically report what you've done. People will be interested. Likely, some will be happy to sign a petition and endorse your letter. Balls in your court.

If you want to pursue the class action, you do the homework to firm up whatever idea you have on this issue. That is: You do the legal research ( or hire a lawyer to do it). You dig up the fact pattern required to support your theory.  It's pretty clear you -- the person interested in pursuing class action-- are going to have to be the one identify the class who has been harmed and what tortuous behavior you are going to sue about.   

That's what Scraggy did. And I think that's great on Scraggy's part!  But I think in Scraggy's case, the fact pattern became evident so he could act. Having actual evidence to support a class action suit is necessary. Otherwise, I see no point in discussing a hypothetical class action suit about some vague hypothetical activity. 

[Moe Hacken]

Lucia, I'm suggesting that we have to set a goal for how we'd like to remedy the current "strategic litigation problem." The article quoted makes a suggestion that I find intriguing, so I brought that into the discussion.

I don't disagree with anyone that a class action is a difficult and committed process. We're just talking here, but you're right that I could do more than comment on a forum.

The fact pattern is exactly what's being discussed, one that could be grounds for a class action in the US. I think the discussion has actually been spirited and informative.