Lawsuit against Vernon company dropped, refiled
VERNON -- A copyright lawsuit that was filed against a local company was voluntarily dismissed by the plaintiff in late June.
Peggy Farabaugh, of Vermont Woods Studio, said she was relieved when she received the notice of dismissal, but didn't say anything to anybody for nearly a month because she was worried Vincent K. Tylor would file using another lawyer.
"I believe he dropped the lawyers he was using because they weren't registered as a corporation in California, where the suit was filed," she said.
Matthew Chan, of Extortion Letter Info, did some research into the law firm and could find no documentation confirming it was a registered law firm in California. He posted this information on his website on June 24.
Two days later, on June 26, Tylor filed in the U.S. District Court for the Northern District of California that he was dismissing the lawsuit without prejudice, which means he may refile in the future.
On July 29, Farabaugh received notice that he had refiled, this time in the U.S. District Court for the District of Hawaii.
Farabaugh, who owns Vermont Woods Studio with her husband, Ken, was being sued by Tylor in California because a photograph that was used to illustrate the sale of a dining set to a customer in Hawaii, and that she thought was available for reuse through a site that offers free downloads, was in fact copyrighted by Tylor.
In mid-2012, the Farabaughs received a letter from PhotoAttorney.com demanding $9,500 for use of the photo.
"If I refused to pay up within 10 days, they said VKT might sue me for $150,000," wrote Farabaugh on her blog.
Vermont Woods Studios works with Vermont craftspeople to market and sell their furniture online and at Stonehurst, a gallery and showroom in Vernon.
Later, Farabaugh received a letter from Woolf Gafni & Fowler, in Los Angeles, representing Tylor, demanding $12,000 by May 5. If they did not pay up, threatened the letter, Tylor would file a lawsuit of up to $150,000.
Following receipt of the letter, Farabaugh contacted Adam Gafni.
"I ... discussed the facts and explained that we are a small company that cannot afford a $12,000 fee nor did I think it appropriate," she wrote on her blog. "I asked him to drop the lawsuit. He told me to make him an offer to settle and I said I'd been advised not to settle. At that point, he accused me of extortion, said ‘see you in court -- have a nice day' and hung up the phone. VKT filed a $150,000 lawsuit shortly thereafter."
"It's a bullying tactic," said Mitch Stoltz, of the Electronic Frontier Foundation. "Juries don't tend to award $150,000, but because the amount is so high, they can use it as a scare tactic."
In the new filing, Tylor contends Vermont Woods Studio was issued a cease and desist order sometime after May 14, 2012, a contention Farabaugh disputes. Despite the letter, wrote Tylor's new attorneys, J. Stephen Street and Dane Anderson, the image was still on the Vermont Woods Studio Facebook page in April 2014.
Though there are no specified monetary demands in the new lawsuit, it asks for legal costs and damages and "any profits Defendant has gained in consequence of Defendant's unlawful and willful acts ..."
According to Extortion Letter Info, J. Stephen Street has filed a number of similar lawsuits and according to public documents, Anderson has represented Tylor in similar lawsuits in the past.
Stoltz told the Reformer that just in the past three years, more than 200,000 people have been targeted by copyright trolls. He said if a website doesn't openly assert that a picture is free for use, you should consider it copyrighted and not use it for your own purposes.
Farabaugh admitted she used a copyrighted picture on her website, but contended it was an innocent infringement for which she was willing to pay a couple of hundred dollars, but surely not in the thousands. The worst part, however, was having to take time away from building her business.
"It's not very much fun to get attacked and have to take your attention away from your business," she said.
The past two years have been quite a learning process for her, but she thanks her law firm and resources such as Extortion Letter Info and the Electronic Frontier Foundation for helping her comb through all the details and determine what her rights are.
"Most people who get a letter demanding $10,000 are probably going to Google the name of the person who is demanding the money," said Farabaugh. "When they Google Vincent K. Tylor, not a lot comes up on the first page about photography."
In fact, other than the first post, which is a paid advertisement, the first four links retrieved relate to copyright trolling.
"I do think people are on to him and trolls in general," said Farabaugh. "It's becoming harder and harder for them to extort money."
Farabaugh, on the advice of her attorneys, had no comment on this latest filing.
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.
TALK TO US
If you'd like to leave a comment (or a tip or a question) about this story with the editors, please email us. We also welcome letters to the editor for publication; you can do that by filling out our letters form and submitting it to the newsroom.