Aloha Plastic Surgery Submits Counterclaim

[Robert Krausankas (BuddhaPi)]

This is great news! Aloha plastic Surgery has indeed filed a counter claim against Hawaiian Art Network and VK Tylor! We knew it was only a matter of time before someone actually fought back.

All along we have pretty much agreed that besides the letter being a scare tactic, that if and when they filed suit would motivate the recipients into settling and making it go away. I would bet money that HAN was counting on this to happen, now that there is a counter suit involved, it puts Hawaiian Art network in a different position, perhaps it will be the trolls that want to settle.. will be interesting to see how far this goes and who has the balls.. Glen Carner cannot be happy today..

Will get the court docs posted in the near future, check back to this thread for links!

LINKS ADDED BY MATTHEW CHAN on May 23, 2012:

Defendant Answer
http://www.scribd.com/doc/94563999/Hawaiian-Art-Network-Vincent-Tylor-vs-Aloha-Plastic-Surgery-Defendant-Answer

Defendant Counterclaim
http://www.scribd.com/doc/94563990/Hawaiian-Art-Network-Vincent-Tylor-vs-Aloha-Plastic-Surgery-Defendant-Counterclaim

[Jerry Witt (mcfilms)]

Awesome News! Thanks for keeping us posted Buddha.

I just hope that Aloha sees this all the way through. I think the likely judgement against HAN will usher in a sea change for the whole trolling industry.

I wish I could see the judges expression when they find out how many sites have been seeded with HAN/Tyler images and offered as free downloads. And what about how few of them have actually been contacted about taking these images down. Or maybe HAN will try and argue that it is their right to provide their images to free baitpaper sites. That will be classic. I gotta get the popcorn popper going.

[Greg Troy (KeepFighting)]

Yes! Yes! Yes!!!  Way to go Aloha!  Is there any site to help with their legal fund or can we set something up here?

[Robert Krausankas (BuddhaPi)]

Yes! Yes! Yes!!!  Way to go Aloha!  Is there any site to help with their legal fund or can we set something up here?

Not that I am aware of, and I doubt ELI will get involved in the "fund" end, but there will be other ways to help, I'm sure.

[Matthew Chan]

The links to the Defendant Answer and the Defendant Counterclaim has been uploaded. Look to the originating post to this thread.

I am gratified that someone has taken the step of filing a counterclaim against these dumb lawsuits. This is an important step because HAN cannot simply drop the lawsuit at their leisure. They are now being held accountable to the Defendant. Even if HAN were to chicken-out and want to drop the lawsuit on their side, that does not mean the Defendant has to.

It is a noose and important legal weapon which the defendant can now wield. Whether or not the Defendant ultimately has a good case or not is irrelevant at this early juncture. There is a huge symbolic message being sent to everyone that this Defendant isn't rolling over and they are courageous enough to take the fight on their terms. It forces the Plaintiff into a defensive position also, not just the Defendant. The fight has become a bit more equalized in theory.

Now, the Plaintiff will be forced to provide an Answer to all the issues the Defendant brought up.

I would like to point out that many of the listed defenses look very familiar to those provided by Oscar Michelen on the Getty vs. Advernet case.  Good job in doing some research and building on the work done before. Someone isn't trying to entirely reinvent the wheel here.

There are elements of the Defendant countersuit that I don't think will hold up well. Nevertheless, it is the Defendant's right to bring up those issues THEY feel are important thereby forcing the Plaintiff to respond and reply to.

My gut reaction is that this lawsuit will not "go all the way" and will get settled. However, if HAN thinks they were sending a public message to scare everyone, they quickly discovered what it's like to get a punch-back on two fronts.

It is probably bad enough that Glen Carner's and HAN's online reputation is shit given the extensive ELI coverage has given.  But now HAN gets more spotlight as the Defendant mounts a considerable legal defense and direct counterattack on the Plaintiff. Glen Carner now has a PR and legal battle to contend with at the same time. I wonder how deep pockets he has.

I have repeatedly said that many people overly fear lawsuits. They don't understand that filing a lawsuit comes with the risk of a countersuit they never anticipated or wanted. I have been saying this for some time and the entire stock photo industry can watch as the Defendant hits back on HAN.

You can be sure that HAN will have some allies behind the scenes. None of the stock photo agencies will want an unfavorable legal precedent. It should get interesting.

I commend Aloha Plastic Surgery for stepping up on this fight. They may or may not realize it but their fight has far-reaching impact beyond themselves. It's clear that the ELI community supports Aloha Plastic Surgery's position in their fight against HAN.

[SoylentGreen]

Great discussion.

This case may be one of the most important to come along in some time.
I'm sure that the judge will consider this one carefully.  The "door" cannot be opened to intentional, wide-scale "seeding" of "free" images with sneaky lawsuits.

A wrong decision here would open the floodgates to trolling on scale never before seen.
I'm confident that the judge will clearly see the implications.

S.G.

[Greg Troy (KeepFighting)]

I love it!  I hope that Aloha will follow through and press on even if HAN backs down.  There is some great stuff in there.  I love how they call it like it is:

(d) “Aloha is informed and believes and therefor alleges that the actions of Network and Tylor in Publishing his photographs on the internet prior to the filing of the lawsuit, and offer them for free use was part of an elaborate scheme to scam people who saw the photographs and used them pursuant to the invitation to use by Network and Tylor so they could extort money out of people who did what Network and Tylor had advised them to do.”

(g) “The actions of Tylor and Network as described was done maliciously, fraudulently, and as part of a scheme to abuse process for profit;”

I cannot wait to see how this plays out and a big thank you to Aloha for putting HAN, Getty and the rest on notice that enough is enough and we are done with it.  Be prepared to prove it in court or go away, we have legitimate businesses to run and don’t have time to waste on this trolling BS.

[stinger]

Those words can be used to accurately describe exactly what Getty has done as well.

I think I will have to copy them for my attorney to use if they ever decide to take my case to court.

[Oscar Michelen]

I hope Aloha and their lawyers have a good faith basis to make that claim. You can't just say anything you want in a Federal complaint; you must have a factual basis for it or a good faith belief that you will develop  factual support for it in discovery. 

[Matthew Chan]

Good insight.  "Good faith" is a principle that can be carried over into many areas.

I hope Aloha and their lawyers have a good faith basis to make that claim. You can't just say anything you want in a Federal complaint; you must have a factual basis for it or a good faith belief that you will develop  factual support for it in discovery.

[Moe Hacken]

Perhaps Aloha has been following ELI's posts on HAN/VKT's dubious practices. Particularly Mr. Glen Carner's. In case the Aloha folks missed it before, here's a link to some baitpaper Mr. Carner has failed to remove from Brothersoft.com:

http://publisher.brothersoft.com/glen-carner.html

Many of ELI's member have posted about HAN/VKT. I have a pretty good amount of research on one of their images which does not make them look good. As an exercise, I tried a similar research methodology with another one of VKT's images and got very similar results. There are very strong patterns out there that at the very least suggest very poor stewardship of his copyrighted work, and when seen in combination with Carner's wallpaper websites and wallpaper freeware, may be even more suggestive than that.

I certainly hope Aloha reads ELI, and if so, I want them to know I will gladly hand them all my research in digital format if they think it can help them in any way.

[Robert Krausankas (BuddhaPi)]

I think it is safe to say that all interested parties are monitoring ELI.