In doing research on Woolf, Gafni, & Fowler, the youngling law firm formed in 2012, where "Fowler" is gone from the firm and practicing in Houston, TX. I found their attorneys page a bit puffed up so that more bios and photos could be included.
Adam Gafni, in particular, has a very poor online presence. He is still listed as an associate with Meyers & McConnell.
http://www.meyersmcconnell.com/gafni.htmlHis LinkedIn page doesn't contain much of anything. It appears Adam is engaged in "stealth marketing" tactics online. It seems appropriate because he represents VKT who seems to like entrapping people with his desktop wallpaper honeypot lure.
And when poor suckers who don't know much about copyright innocently use a low-resolution image on their websites, VKT strikes.
Now that the VKT vs. Vermont Woods lawsuit has been filed, Adam is trying to say that because the alleged infringed photos were posted in Facebook (located in California) that the lawsuit belongs in that jurisdiction. Anyone who has any common sense knows that is horseshit. Adam filed it in California because it was convenient to him to help keep the expenses down.
That complaint was primarily written for Vermont Woods benefit to "motivate" them to settle. Fortunately, Vermont Woods is angry and has not taken it lightly. Regular ELI readers know VKT has been getting away with all kinds of shenanigans because most victims are just too ignorant or spineless to actually think logically about this. Vermont Woods may have started out innocent like everyone else but I believe they have learned a lot along the way about the VKT desktop wallpaper honeypot.
Vermont Woods has successfully gotten the attention of the local paper the Vermont Brattleboro Reformer newspaper where both ELI and Mitch Stoltz of EFF were quoted.
http://www.reformer.com/localnews/ci_25969243/vernon-company-faces-lawsuit-from-copyright-trollAdam Gafni might think he is hot stuff going up against a Vermont lawyer but I wonder how it might look if Adam Gafni went up against Oscar Michelen in court?
As most ELI readers know, it isn't the infringement issue that is being challenged as much as the extortion and settlement amounts.
What I am personally dying to know is to get VKT into a courtroom under oath. And since VKT wants to have his lawyer file on the mainland, then VKT needs to be prepared to fly at his own expense to testify at the trial. He needs to be put through a cross-examination and an extensive discovery process as well.
What absolutely needs to happen is if Adam Gafni wants to encourage VKT to push forward is that direct questions need to be asked of VKT of how he generates the bulk of his income nowadays? Is it through lawsuits and settlements or is it through digital image and photography sales?
I am willing to bet that similar to most photographers, VKT's income has plunged. He might make a few sales here and there but he is not commanding the dollar per image that extortion letters do.
The court needs to understand the context of the environment in which he exists. I don't buy the horseshit that photographers spend all this time, money, and expense to earn a livelihood and so they can extort multi-thousand dollar settlements for low-resolution, low-web traffic, non-willful infringements.
Hollywood movie production companies often spend tens of millions of dollars per film. Do you see them trying to extort half-million dollar settlements from individuals claiming that because they spend x millions of dollars they expect to get that from one small business or individual? Generally, they just want people to stop infringing, give a warning, and that is it.
I think the court would be very interested to know how much money he has made over the last few years AND HOW it was made. VKT needs to be made to demonstrate what the true market value of his images truly are to give a basis of what the true damages are.
We have already seen that many courts don't give of attorney costs. The Gale case shown that. They infringed and paid $5400 (if I remember correctly) and everyone was responsible for their own lawyer costs.
In a Corbis case, the court destroyed the plaintiff's attorney cost and expense request. It was destroyed so badly that although Corbis won, Corbis lost around $30K pursuing that case.
Judges aren't stupid. If the proper context is explained and the discussions are brought out as to WHY they think a plaintiff should win $20K from an obscure Vermont small business for a few images seen by a few people on a Facebook page. Even more stupid would be that if a good faith effort was made to settle and a dollar amount was proposed and the plaintiff turned it out down because the lawyer wanted a bigger settlement to get his fair share of the percentage, the court might not take too kindly to a small discrepancy.
I also cannot believe Adam would attempt to insinuate Facebook and Typepad assisted in the alleged infringement. If that is the case, I would invite Facebook and Typepad to the party to help clear their name. Perhaps an email to Facebook's and Typepad's legal counsel is in order. Adam wrote the complaint, not VKT. Facebook and Typepad have safe harbor over what its users post and to accuse them of any wrongdoing in this case could be considered defamatory by Adam and VKT's part. Google, Facebook, Yahoo, and other large Internet companies have a vested interest that its users are not abused. Adam is abusing Facebook by using their name to claim California jurisdiction. I wonder how they like that? That would mean any lawsuit related to social media would have to be filed in California. I don't think the State of California would like that as their courts are already clogged up and backlogged.
Adam and VKT are trying to do a shakedown by including John Does parties. How stupid is Adam? Has he not followed the porn troll lawsuits? If the victims are coming out and teaming up in droves to fight the porn trolls, does he honestly think that any of the Does in Vermont's and VKT case will be afraid to testify and fight alongside Vermont Woods against Adam and VKT? Stupid call.
Adam has shown through is own shitty online presence that he doesn't have much command of the Internet and how it works. The photo copyright extortionists continue to want to ignore the commoditization and erosion of the digital photography business. Anyone can look to camcorders, digital camcorders, and smartphone to learn how photos as a whole are largely commodities. Yes, piracy is a contributing factor but not as much as the technological upheavals going on devaluing digital imagery.
Do we even want to dig out HOW VKT got the photos to begin with? He probably wasn't the landowner of which he might have trespassed or walked on to get those photos. And those people who may have given permission to VKT to go on the Hawaii beaches and lands to take those photos, maybe they need to get a piece of VKT's revenues. Perhaps, the State of Hawaii needs to be contacted that he is trying profit and extort from public lands and scenery.
Let us not forget that most infringers of VKT's photos were directly or indirectly trying to promote Hawaii as a destination, venue, or some other virtue. And VKT is attempting to "own" pieces of Hawaiian scenery. VKT doesn't own Hawaii and its scenery. And he doesn't own the land in which he walked on to take most of his photos.
VKT is bastardizing people's love of Hawaii's lush scenery in such an overtly thuggish away, it is offensive. He and his wife are so entitled, they don't realize that most of the content in the photos, they own to Nature, God, the U.S. and the State of Hawaii. Someone needs to knock some sense into them to get over their entitlement mentality. He took & embellished some fucking photos. He may be talented but that doesn't give him the right to abuse the copyright laws and the court system as a tool to extort monies from others.
VKT is not so innocent or independent in HOW he took those photos. I don't think the State of Hawaii, local business owners, and the landowners would appreciate one of its state citizens legally terrorizing Internet users that are trying to promote Hawaii. Hawaii is in the tourist, vacation, and destination business. It is true that people shouldn't infringe on VKT's photos but that doesn't give VKT the right to bastardize copyright laws and club people over the head legally.
Both Adam and VKT are NOT islands in this world. I believe Hawaiians would be outraged at how one of their state citizens are behaving towards non-Hawaiians especially since VKT is using the beautiful lush scenery as HIS product. VKT might find himself unable to take any more nature photos if word got out how he is twisting what is free to the public (Hawaiian scenery) to his benefit. VKT is an embarrassment and black eye to Hawaii.
An extensive discovery process and cross-examination may reveal that VKT didn't get those photos all on his own. He had help and permission from others. Or maybe he didn't. No one really knows. There may be other parties that actually have a legitimate financial interest in his "earnings". His images may contain content, imagery, and property that belong to other businesses such as hotels, private homeowners, and the State of Hawaii.
Perhaps complaints to the Attorney General in Hawaii is in order at some point. All the VKT victims can easily find one another here on ELI to make things happen.
Adam Gafni is no Oscar Michelen. The smartest thing that Vermont Woods can do is to fire the Vermont law firm and get Oscar Michelen on the case.
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