ExtortionLetterInfo Forums
Retired Forums => Hawaiian Letters & Lawsuits Forum => Topic started by: Robert Krausankas (BuddhaPi) on December 05, 2011, 10:06:00 AM
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Looks like Hawaiian Art Network, LLC has filed a suit against Aloha Plastic Surgery, and to no surprise Vincent K Tylor is also named as a plaintiff
http://dockets.justia.com/docket/hawaii/hidce/1:2011cv00722/100339/
Correction!!!! Make that 2 suits!
http://dockets.justia.com/docket/hawaii/hidce/1:2011cv00721/100348/
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I managed to find the attorney in this case and it appears he actually has some experience..
http://www.ip-law-hawaii.com/J_Stephen_Street_Profile.html
I wonder if he is aware that there may be seeding of images happening with Hawaiian Art Network and "artist" V.K.Tylor
http://www.rfcexpress.com/lawsuits/copyright-lawsuits/hawaii-district-court/86075/hawaiian-art-network-llc-v-aloha-plastic-surgery-llc/summary/
:::EDIT::: this same attorney is involved in both cases mentioned in the original post.
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Here's another one the same lawyer is handling, I know nothing about this case, except it is with another company "Pacific Stock" and i assume it is in regards to stock images...
Pacific Stock, Inc. v. Big Kahuna Adventures Hawaii LLC et al
http://www.rfcexpress.com/lawsuits/copyright-lawsuits/hawaii-district-court/86073/pacific-stock-inc-v-big-kahuna-adventures-hawaii-llc/summary/
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Yes thats me !!
Well I will post details later and made another post in another thread.
I will find out more about this as we go along....
Thanks for your web site
I will be back.
M
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The company is carefully picking and choosing whom to file against and is focusing on Hawaiian businesses. They still will have many issues to deal with in court and it will be interesting to see how the Federal District Court responds to these cases. My biggest concern is that if these cases are not properly defended they could make bad law which will help all the other digital image companies in the 9th Circuit, which includes California! So while it may seem that its just little old Hawaiian Art Network involved over a few filings, there may be a lot more at stake here.
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Oscar, is there any merit to a possible entrapment defense or something along those lines? Every letter I have seen from HAN involves the same photogrpaher, and all of these images are readily available on literally 100's of sites as free downloads??
::EDIT::
could you possibly expound on this a little more??: "My biggest concern is that if these cases are not properly defended they could make bad law which will help all the other digital image companies in the 9th Circuit"
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Here's yet another one that just appeared on the radar..
Hawaiian Art Network, LLC et al v. Moku'aina Properties, LLC et al
http://www.rfcexpress.com/lawsuits/copyright-lawsuits/hawaii-district-court/86202/hawaiian-art-network-llc-v-moku-039-aina-properties-llc/summary/
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Here is just some more info with regard to copyright law and lawsuits. Thought it may help as there is mention of "time frames" regarding registration.
Here is the link for the pdf file:
http://www.apanational.com/files/public/keytoprotection.pdf
HIGHLIGHT:
A copyright without copyright registration is next to worthless.
But in reality, a copyright without copyright registration is next to worthless. Why? Well, to start
off, you can’t even file a copyright lawsuit in Federal Court without actually filing a copyright
registration. Secondly, if the copyright infringement that you are suing about occurred over 90
days prior to your copyright registration, you are denied two real big sticks in the copyright law -
court costs - including attorney’s fees and statutory damages. These are very big sticks indeed.
The US Copyright Office explains registration as the following: “Copyright Registration is a legal
formality intended to make a public record of the basic facts of a particular copyright. However,
even though registration is not a requirement for protection, the copyright law provides several
inducements or advantages to encourage copyright owners to make registration.”
Among these advantages are the following:
• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of
U.S. origin.
• If made before or within 5 years of publication, registration will establish prima facie
evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within 3 months after publication of the work or prior to an
infringement of the work, statutory damages and attorney’s fees will be available to the
copyright owner in court actions. Otherwise, only an award of actual damages and profits
is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U. S.
Customs Service for protection against the importation of infringing copies.
What this basically means is that an “author” of a copyrighted work gets the full remedies under
the law only if the copyrighted work is registered prior to an infringement. Otherwise, the best
you can hope for is an award of actual damages or profits lost — both of which can be difficult to
prove or may end up being less than the costs of mounting a lawsuit in the first place. Talk to an
IP (Intellectual Property) attorney and one of the very first questions he will probably ask is “is it
registered?”.
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I received a registered letter dated December 6, 2011 from Zvukony & Co Lawyers (Gil Zvulony is the name of the lawyer located in Toronto) demanding that I send them a certified cheque in trust for $10,000 for infringing on their client's copyrights and moral rights. I have been given 10 days from the date of the letter to respond. I live in Calgary, Alberta, Canada and I had posted another person's blog which included one of the pictures.The second picture I had taken from a site which I thought was a free site which promoted pictures of Hawaii but was not! My mistake! Since receiving the letter, I have taken both pictures off my blog site and Facebook.
I have replied back to the letter via email stating that I have taken the pictures off the site immediately after receiving the letter. I have stated that the payment they want is very high compared to the act price of the photos. I also made the statement that the law firm seems legitimate but how did I know that these pictures were indeed owned by Hawaiian Art Network LLC.
In reading the information on your forum, Vincent K Tylor has both pictures for sale for $10.00 under his website Hawaiian LandMark Images and Hawaiian Art Network.
I am interest to hear your comments.
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moral rights??? I'm not Canadian, but can a lawyer from Toronto practice in Alberta?? Look as some of the other posts, as they all have good info on how to proceed.... In the meantime rest assured I'll be a doing alittle digging into Mr. Zvolony...we'll see if he has any "morals" himself... 10k is almost laughable and already reflects on his moral value"....
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I appreciate the fact that you will look into Mr. Zvulony. I will fiind out if a Toronto lawyer can practice in Alberta.
I certainly appreciate the support of this forum and those of you who are willing to help people like me. Thank you so very much. I have been reading and studying information and am learning about what others have done. I'm looking forward to hearing what others have to say about this latest letter and wonder who else is getting these Canadian letters.
I have had a very large increas in the pages read on my blog for about the last two months. It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.
Thanks again.
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I have had a very large increas in the pages read on my blog for about the last two months. It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.
Thanks again.
That would be picscout the robot they use, which disguises itself, and is hard to detect..thus sucking your bandwidth that you pay for, and loading down your server too..
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FYI, checked the Canadian Copyright online database and couldn't find anything registered under Tylor or Hawaii. Did however find them in the US online database. Of course, this was only a quick search and nothing extensive. Wonder if the same rules apply in Canada (eg. if not registered, cannot sue for statutory damages / legal fees)?
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Canada Bob,
It seems that while Canada does have "statutory damages", these damages can be sought whether or not the image was registered.
In the 'States, the image must be registered in order to seek statutory damages.
In Canadian law, it appears that the plaintiff must seek either "damages" or "statutory damages".
Wherein plain old "damages" could be just the purchase price, and "statutory damages" would be loss of profits, etc.
A judge can grant "legal fees" (which appear to be separate from "statutory damages"), but my understanding is that this decision would be based on the merits of the case.
Naturally, these facts wouldn't keep a defendant from formulating a defense based on lack of ownership, if it could be shown that the plaintiff doesn't own the rights to the content in question.
S.G.
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I have had a very large increas in the pages read on my blog for about the last two months. It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.
Thanks again.
I saw that at my blog too. I'm working on a set of scripts to mitigate this for people. For now, at least add the following two lines to the htaccess file in the root for your domain:
# don't permit directory listing
IndexIgnore *
The first line is a comment and does nothing but remind you about the function of the second line. The second line closes off a great big superhighway method some bots use to find the names of all your file images. Backroads still exist. That's why I'm trying to find other methods to help people block off the backroads and catch this sudden grazing real time. But at least add the
IndexIgnore *
line.
Even aside from any copyright issues, this behavior is bandwidth sucking (i.e. increasing your hosting costs). So you want to stop it anyway.
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This is my first time posting on here. Thank you in advance for your help. Approximately 2 months ago my wife received a letter from Leslie Burns, Esq. (letterhead of: Carolyn Wright, PhotoAttorney) alledging an infringement on our part of a single picture by Vincent Tylor (Hawaiian Art Network). I will start by saying this, we never received any official correspondence, only an emailed letter (which is a little unprofessional). The letter very boldly attacks us and paints us as thieves. It says we knowingly infringed, making us liable up to $150,000.00. It offers to settle around $3500.00.
The photo in question was taken from a site portraying it as "free", which we now (of course) understand to be untrue. My question is this: our unintentional errant use of the photo occurred nearly 4 months prior to the registration date of the copyright (based on the copyright registration number they provided us & the date on my wife's blog, which they included a screen shot of in the letter). The publication date is over 9 years prior to the registration date (clearly more than 3 months).
I have explained this to the attorney, who insists the law only requires the copyright be registered prior to the "discovery" of the infringement, therefore still making us liable for statutory damages. I can find no law to back up this logic, the only discussion of "discovery" I can find pertains to "statute of limitations" issues (which also vary greatly from district to district as to whether its "discovery" or "injury" date). In fact, 17 USC 412 appears to very clearly state: "no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work".
If I interpret that properly, the commencement date of the infringement is the date in question, it mentions nothing about "discovery". Any help you can provide is greatly appreciated. Thank You!
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Smitty -- Are you in the US or Canada? Did you see all the other posts by people targeted by this particular photographer and stock agency? You should all compare notes. Did you also catch that post that the image in question is available as a print for $10?
If it were me I would offer the $10 without admitting any guilt but in the interest of moving on. They obviously won't accept that, but in the highly unlikely case this were to go in front of a judge, you could say you made an effort to settle the matter at the going rate. My understanding isd that this puts you in the position to have them pay for all of your court costs when the judge throws it out of court.
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I have had a very large increas in the pages read on my blog for about the last two months. It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.
Thanks again.
I saw that at my blog too. I'm working on a set of scripts to mitigate this for people. For now, at least add the following two lines to the htaccess file in the root for your domain:
# don't permit directory listing
IndexIgnore *
The first line is a comment and does nothing but remind you about the function of the second line. The second line closes off a great big superhighway method some bots use to find the names of all your file images. Backroads still exist. That's why I'm trying to find other methods to help people block off the backroads and catch this sudden grazing real time. But at least add the
IndexIgnore *
line.
Even aside from any copyright issues, this behavior is bandwidth sucking (i.e. increasing your hosting costs). So you want to stop it anyway.
Sorry to be so computer ignorant but you give me some idea of how to get to the access file on my blog so I can insert the command you gave to block the bots?
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mcfilms-thank you for the info. I am in the U.S.
So am I understanding the law properly? Is the need for copyright registration prior to infringement (for purposes of determining actual v. statutory damages) based on actual infringement date, or "discovery" of infringement? The law seems clear to me (actual infringement date), but the attorney coming after my wife insists its based on "discovery". She doesn't quote any law (like she normally does) she just says it and insults our intelligence (shes an attorney, we aren't, blah blah blah).
Excellent advise regarding the fair price offer, I will do that.
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Smitty,
In the US, the image must be registered prior to the alleged infringement in order to collect "statutory damages".
However, if the alleged infringement occurs within 90 days of the first publication date of the image in question, the legal owner may register it and would be able to collect statutory damages in that particular case.
"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."
http://www.benedict.com/Info/Law/Why.aspx
Given your situation, it appears that they could only seek the fair retail price of the image for the time of use, going back to a maximum of three years from the date that you removed the image from your site.
Hardly worth suing over, if you ask me.
S.G.
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I have had a very large increas in the pages read on my blog for about the last two months. It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.
Thanks again.
I saw that at my blog too. I'm working on a set of scripts to mitigate this for people. For now, at least add the following two lines to the htaccess file in the root for your domain:
# don't permit directory listing
IndexIgnore *
The first line is a comment and does nothing but remind you about the function of the second line. The second line closes off a great big superhighway method some bots use to find the names of all your file images. Backroads still exist. That's why I'm trying to find other methods to help people block off the backroads and catch this sudden grazing real time. But at least add the
IndexIgnore *
line.
Even aside from any copyright issues, this behavior is bandwidth sucking (i.e. increasing your hosting costs). So you want to stop it anyway.
Sorry to be so computer ignorant but you give me some idea of how to get to the access file on my blog so I can insert the command you gave to block the bots?
First: the .htaccess isn't technically on your blog. It would be on the server that hosts your blog. Are you self hosted?
Example: I self host using Wordpress software which is installed on the physical computer (i.e. server) owned by my host, which is Dreamhost. But other people use Wordpress hosted by wordpress. Their web addresses often end with "Wordpress.com". If you selfhost like I do, you can probably install an htaccess file, and I can tell you where to find it. If you are on wordpress.com or blogspot or something like that you can't install an .htaccess file.
I'm guessing based on what you wrote that you self host. But I need to know for sure. After that, I can ask how you installed Wordpress in the first place-- and then I can explain how to find .htaccess, explaining all this based on knowledge you already have.
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OH good, Judge Leslie Kobayashi is hearing these cases. She is a very good judge, very fair but tough and wont take any BS.
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My understanding is exactly as you laid it out, SoyentGreen. In fact, I wonder if an attorney could get in trouble (complaints to bar assn., lawsuits, etc) if it were found that they were threatening victims with things they know aren't allowed by statute. It seems at least waaaaay over the line of common decency and ethics to me. I hope that someone finds a way to hold these people accountable one day.
Smitty,
In the US, the image must be registered prior to the alleged infringement in order to collect "statutory damages".
However, if the alleged infringement occurs within 90 days of the first publication date of the image in question, the legal owner may register it and would be able to collect statutory damages in that particular case.
"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."
http://www.benedict.com/Info/Law/Why.aspx
Given your situation, it appears that they could only seek the fair retail price of the image for the time of use, going back to a maximum of three years from the date that you removed the image from your site.
Hardly worth suing over, if you ask me.
S.G.
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Thanks, Lettered.
My understanding is that lawyers cannot should not misrepresent actual matters of law in order to extort a settlement.
So, I think that one would have cause in such a case to report it to the law society.
That would be different than "our client contends that/has reason to believe that...", etc. Which is just an opinion.
For example, a lawyer shouldn't say that something is "registered with the copyright office" if is in fact not registered.
But, they could say that their client "holds the copyright" to an image for example if the client took the photo.
That's because copyright exists at the moment of creation by the artist... but that's not really "actionable" in court.
So, it's very, very subtle, and the layman can be easily fooled.
In my case, I was sent some misleading verbiage by a lawyer.
But, his secretary signed the letter. I don't think that the secretary is bound by the same responsibilities as an actual lawyer, though.
Pretty clever, huh?
Didn't pay. Also clever.
S.G.
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I discussed with Oscar doing the whole State Bar complaint issue since he was threatened by it by one of the extortion attorneys. I wanted to gauge his position as to what he thinks is appropriate and inappropriate for a State Bar Complaint. I don't want to speak for him or get into specifics but philosophically, I found his answers a bit surprising in that he and I are closer in alignment than I originally thought.
If people recall, Timothy B. McCormack's extortion letter was the one that broke the camel's back with me. Filing a State Bar complaint was something I've known about for years. Even during most of ELI's existence, I was hesitant to talk about that form of retaliation and pushback because of the potentially damaging effects on a lawyer.
But when I kept seeing lawyer after lawyer using dirty tactics in their extortion letter efforts (way too many now to list), I thought it was time to popularize it. Since outright complaining didn't seem to get the message across, no lawyer can easily ignore Attorney General Complaints or State Bar complaints.
I am happy to report that some of our readers heeded that advice and it has starting making an impact. People think you need hundreds to make a difference like signing a petition. That isn't true. With Attorney General Complaints and State Bar Complaints, the weight of each complaint against a business or lawyer weighs very heavily.
Let me say, that a lawyer does not have to be disbarred or publicly sanctioned for it to take effect. Trust me on this. "Trouble" has many meanings. You can take that to the bank.
My understanding is exactly as you laid it out, SoyentGreen. In fact, I wonder if an attorney could get in trouble (complaints to bar assn., lawsuits, etc) if it were found that they were threatening victims with things they know aren't allowed by statute. It seems at least waaaaay over the line of common decency and ethics to me. I hope that someone finds a way to hold these people accountable one day.
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And at the very least they have to take time out from their schedules to draft a reply.