Oscar Michelen emailed me a very important document that he wanted posted for everyone to study and learn from. From my point of view, I want more eyes and minds dissecting what happened. It is a bit wordy and lengthy but there is some very important pieces of information buried within the document. Most notably, testimony from a Getty employee of how they gather information on alleged infringements. However, it is also interesting to note that despite the fact the defendant defaulted, the judge was not so quick to give complete victory to Getty either. Essentially, the judge was NOT simply going to accept what Getty presented as facts without extensive scrutiny and questioning. As I have frequently said, most judges try to be fair and the stock photo companies do NOT have slam-dunk cases no matter what they claim. In their extortion letters, stock photo companies can try to be cute, coy, and threatening. But once it gets to court, the judge insists on fully understanding what is going on.
Read the Memorandum and Order by Judge Kevin Nathaniel Fox on the Getty v. Advernet case.
http://www.scribd.com/doc/75525341/Getty-v-Advernet-Decision-Southern-District-of-NYOscar Michelen promises a more extensive commentary but he authorized me to post his preliminary comments to me until that time is better able to expand upon it:
Major news on a Getty case. Attached is a federal decision in a case called Getty v. Advernet. I was involved in the case for awhile representing the defendant in court. Like you, he was bit of a renegade and wanted to battle it out and see what happens. He was sued for thirty seven images. After the case did not settle at a settlement conference, he decided that he would just default on it as the corporation had no assets and he would have to spend a lot of money on the litigation. So we moved to be relieved and it was granted. Of course, when the company did not show up with a new attorney at a scheduled conference, Getty moved for a default judgment.
Well, while the judge found that the lack of appearance was grounds for a default he REFUSED to enter a default judgment because he said Getty could not establish it rights to the images properly and could not establish when the infringement allegedly occurred! The decision has lots of interesting info on how Getty operates and how PicScout works, etc. Better yet, when Getty got the decision, they tried to move for re-argument saying the judge misunderstood the evidence and the law. On Nov 22, 2011, the judge denied THAT motion as well! Both decisions are attached. The reargument decision follows the first one. This is great news and a big loss for Getty. Even when the other side had no lawyer, a judge had problems with their claims. They will likely re-tool after this and figure out how to correct the issues raised by the court.
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