Messages

106

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: August 01, 2012, 02:12:08 PM »

So this ruling could possibly affect Wayback Machine printouts or other type of printouts offered as evidence by "strategic litigants," in the United States, as of right now. Perhaps no one has tried to go there since this case from 2005. Perhaps I'm wrong about that, further research would be required. I'll see what I can find.

I wonder if the Aloha Plastic Surgery legal team is thinking along these lines at all. Hawaii's court may take an Illinois precedent in consideration.

This may just be one the greatest finds ever, Jerry.

107

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: August 01, 2012, 01:24:01 PM »

SG -- It's worth mentioning that Telewizja Polska is an Illinois corporation. I think this case was all in the US.

Indeed:

http://scholar.google.com/scholar_case?case=15389748576569562202&q=Telewizja+Polska+SA+v.+Echostar+Satellite&hl=en&as_sdt=2,5&as_vis=1

108

Getty Images Letter Forum / Re: An Experiment Against Getty

« on: August 01, 2012, 12:25:22 PM »

Pachomovsky and Stein discuss several possible remedies for the reform of current copyright law, which include punitive damages. You will find their suggestions towards the end of their paper:

http://www.law.uconn.edu/files/Stein.pdf

Specifically, they make this comment:

We propose that courts be given broad discretion to rule in appropriate cases that litigants have acted in bad faith or misused their legal rights.

There is some opportunity to lobby for the reform to other congresspersons. Something similar was going to be included with the Orphan Works Amendment. This proposed legislation is an attempt to correct copyright law to protect the good faith user in the case of so-called "orphan works". This protection could be tailored in such a way that it also protects good faith innocent infringers from legalized extortion and frivolous "strategic litigation."

Here's a short read about the Copyright Office's position on the Orphan Works Amendment:

http://www.copyright.gov/orphan/

This is a particularly important statement made by the Copyright Office:

... one of the basic tenets of the legislation is that the available remedy will be proportionate to the nature of the infringement. Reasonable compensation, a standard derived from a leading case on copyright damages, will usually be within the range an owner could expect to recover in an ordinary infringement suit.  And it should certainly reflect a reasonable license fee.

Unfortunately, the bill was passed by the Senate but it died in the House of Representatives:

http://www.govtrack.us/congress/bills/110/s2913

The congressmen who spearheaded the Orphan Works Amendment would be Orrin Hatch and Patrick Leahy. They may be interested in reading about the abuse of "strategic litigation" that has grown like an epidemic since this bill failed about 3 years ago.

Here's their info:

Orrin Hatch: http://hatch.senate.gov/public/index.cfm/2008/5/hatch-works-to-further-bill-named-after-utahn-shawn-bentley

Patrick Leahy: http://www.leahy.senate.gov/press/senate-passes-leahy-sponsored-orphan-works-bill

The Copyright Office would probably be very interested in your complaints as well:

http://www.copyright.gov/help/index.html#mailing

Thanks for your letter-writing efforts. I do think those have an effect because I've seen it work for other campaigns.

109

Getty Images Letter Forum / Re: Are Screenshots from the Wayback Machine useful as evidence?

« on: July 31, 2012, 03:01:56 PM »

That's an interesting find, Jerry. It would be good to have a precedent like that in the U.S. Perhaps no one has thought of challenging Wayback Machine in a court yet, or perhaps it has been tried unsuccessfully.

As Robert said, if Wayback Machine's printouts were ruled not to be self-authenticating in the U.S., the ruling could apply to PicScout or other such content scrapers. Of course, that's all conjecture.

110

Getty Images Letter Forum / Re: ELI Factor: Episode 1 Premieres!

« on: July 29, 2012, 04:39:26 PM »

Finally got a chance to see both episodes of the ELI Factor. Nice work, guys.

Keep it up, I think this concept really has legs.

111

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 27, 2012, 11:20:03 PM »

Okay then, just one more: Trespass to Chattels:

http://ilt.eff.org/index.php/Trespass_to_Chattels

Just kidding. I know you guys have talked about this until you're blue in the face. Don't listen to me.

112

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 27, 2012, 10:45:00 PM »

I'll certainly try to be more clear in the future, Lucia. I thought the topic of the thread suggested that brainstorming was invited. I never proclaimed to be a legal expert. I'll be the first to admit I'm grasping at straws.

If the topic is such a buzzkill, then why would you want to read the thread? It was the topic that attracted me to participate.

So let's move on to more productive activities, shall we?

113

Getty Images Letter Forum / Re: Getty Images and Complaints filed with the Washington State Attorney General

« on: July 27, 2012, 09:03:46 PM »

That's a good catch, Greg. I also noticed that letter, and noted the threat, but I failed to make the connection that it was the paralegal who made the threat.

I also noted Donna Misra gave them a credit card number in her haste, then reversed the charges later. Classic.

114

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 27, 2012, 08:49:52 PM »

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.

115

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 27, 2012, 09:59:10 AM »

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.

116

Getty Images Letter Forum / Re: Attorney Cindy Hsu no longer associated with Carolyn Wright?

« on: July 27, 2012, 12:06:18 AM »

I think it's wise of them to recognize that they don't want to be the next generation of Carreons or McCormacks. Maybe they'll thank ELI one day for knocking the Kool-Aid out of their mug before they drank too much of it.

117

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 27, 2012, 12:02:52 AM »

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!

118

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 26, 2012, 02:17:33 PM »

Well, I happen to disagree with SoylentGreen on this one. I can TOTALLY be bothered to talk about class action against Getty or any other troll who has abused tort to EXtort for cash. The question is simply one of strategy.

Of course the local expert on this matter would be Oscar. The "standing to sue" angle may be too esoteric or difficult to attempt in a US court. I would suggest we put that aside as a possible strategy for the moment. There are other angles in the US.

As I mentioned before, I'm intrigued by the possibility that their methods could be called into question, particularly PicScout's aggressive "private investigation" of people's servers without consent and very much ignoring warnings to stay out of the server.

Troll/Wallpaper Purveyor Vincent Tylor likes to say that you're still guilty of auto theft even if the doors were open and the keys were in the ignition. Well, you could be committing an illegal search without a warrant even if the directory was not password protected. At least I would think there's some comparison between the two scenarios.

I know this has been discussed here before, but really not too deeply. Saying "it can't happen" is not a deal-closer argument. I'm of the mind that the real situation is that "it hasn't happened YET." Thus, we can think about how to make this happen.

If we take out PicScout, we emasculate not only Getty but all their client base in the U.S. Other countries may have different legal frameworks concerning electronic surveillance, but our goal is to succeed in the U.S.

The rest of the world can follow after. Any thoughts? Here's some background on electronic surveillance and the law in the U.S.:

http://www.yale.edu/ynhti/curriculum/units/1983/4/83.04.07.x.html

119

Getty Images Letter Forum / Re: Heres your Saturday snicker!!

« on: July 25, 2012, 11:17:24 AM »

That would be the matter of payment, S.G.

I didn't think you intended this for TEF, I was referring to my comment about how Peeved's image should be included in TEF.

Of course we all post our opinions and they don't represent ELI. That's what makes this forum great. I think the diversity of opinion in the forum is a subject that could also be discussed in TEF. We had Uncle Glen contributing HIS opinion. That was interesting.

I wonder what he's up to these days. We haven't heard much from new HAN letter recipients lately.

120

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 11:11:51 AM »

It's clear that the class action in Israel is a very specific instance of the Getty Copyright Abuse Program. Marot overreached in its role as the enforcement agency, and I do think the case being made is good. Marot did not have the right to shake anyone down.

Getty's conduct is the US market has been different. They've hired enforcement agents who may or may not have standing to contact people with threatening letters. The letters themselves may be cause for a class action in the U.S.

The aggressive surveillance by PicScout could be a cause for a class action suit, perhaps in one state. In California, private investigators have to register with the state to operate as such. Is PicScout not acting as a robotic private investigator? Are they registered in California? Are they collecting "evidence" illegally and does the "evidence" have any validity in court?

There's also the issue of "claim vs. debt" in Getty's letters. Their approach is to cause intimidation with legal threats and then treat the matter as a debt without having received an award from a court or arbitrator. The law is not in their hands like that.

It could be that REAL extortion could be argued. They're basically using the courts to bully small businesses and individuals. Here's the legal definition of extortion:

The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

This is how Getty would probably try to defend themselves from being charged with extortion:

A person who acts under a claim of right (an honest belief that he or she has a right to the money or property taken) may allege this factor as an Affirmative Defense to an extortion charge. What constitutes a valid claim of right defense may vary from one jurisdiction to another. For example, M, a department store manager, accuses C, a customer, of stealing certain merchandise. M threatens to have C arrested for Larceny unless C compensates M for the full value of the item. In some jurisdictions it is only necessary for M to prove that he or she had an honest belief that C took the merchandise in order for M to avoid an extortion conviction. Other jurisdictions apply a stricter test, under which M's belief must be based upon circumstances that would cause a reasonable person to believe that C took the item. Another, more stringent, test requires that C in fact owe the money to M. Finally, some states entirely reject the claim of right defense on the theory that M's threat is an improper means of collecting a debt.

Source: http://legal-dictionary.thefreedictionary.com/extortion

I'm not a lawyer, I went to art school. Just throwing some ideas out there to help the brainstorming process.