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<v ->SJC-13534, Camila Davalos et al. versus Baywatch Inc.</v>

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<v ->Okay.</v>

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Attorney Golaszewski, whenever you're ready.

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<v ->Good morning, Your Honors.</v>

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May it please the court, John Golazewski

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on behalf of the plaintiff's appellants.

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In response to the certified question

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from the district court, this court should do three things.

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One, it should reaffirm its 2014 decision

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in Harrington vs Costello wherein it said,

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"The more precise way to state the discovery rule is

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that a claim will accrue when a plaintiff discovers

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or with reasonable diligence should have discovered

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she was harmed by the defendants."

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Number two, it should confirm that that holding,

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which has twice been reaffirmed by this court, both in 2020

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and in 2022, applies also to claims that are emanating from,

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as in this case, social media publications.

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And number three, it should reaffirm

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that whether a particular event or events,

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either in fact put a plaintiff on notice

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she was harmed by the defendants,

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or reasonably should have put a plaintiff on notice

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that she was harmed by the defendants is generally an issue

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of fact for the jury.

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<v ->Was your law firm the law firm that was hired</v>

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by the plaintiffs to find this?

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<v ->[Atty. Golaszewski] That's accurate, Your Honor.</v>

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<v ->So you did find it?</v>
<v ->[Atty. Golaszewski] We did.</v>

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<v ->Once they hired you, you found it.</v>

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Don't they have to, so it's not inherently unknowable,

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that, or you have magic powers,

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so why doesn't the normal three years apply?

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Because they could have hired you anytime

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during that three year period and you would've found it.

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<v ->Well, I don't know that that's necessarily so, Your Honor.</v>

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The fact that they hired me.

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<v ->Well, but you did find it.</v>

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<v ->Well, the fact that we did find it, Your Honor,</v>

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does not mean that it was not inherently unknowable.

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My client's images-

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<v ->Oh, please, I guess I just don't follow that.</v>

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So your clients discover,

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they're worried that people are exploiting their images?

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<v ->[Atty. Golaszewski] Correct.</v>

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<v ->They say, "Well, let's find out who's doing it."</v>

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<v ->[Atty. Golaszewski] Correct.</v>

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<v ->They hire very capable counsel, you find it.</v>

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The problem is they waited six years to hire you

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or whatever, rather than doing it right up front, so-

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<v ->I guess the question is upfront from what, Your Honor?</v>

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<v ->As soon as they have the ability</v>

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to monitor the use of their images, and-

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<v ->[Atty. Golaszewski] How so?</v>

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<v ->By hiring someone like you.</v>

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<v ->Right, but Your Honor said upfront.</v>

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The plaintiffs don't know when their images are being used.

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Their images are exploited by thousands,

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thousands of companies.

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<v ->But doesn't that suggest</v>

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that they should start policing right away then?

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<v ->But again, Your Honor, with respect,</v>

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right away vis-a-vis what?

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<v ->Right away once they start releasing their images</v>

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to other people that are using their images.

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<v ->My client's images have been used lawfully</v>

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by people for decades, Your Honor.

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My clients are professional models

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whose images are licensed and used for decades.

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<v ->So this goes back decades then?</v>

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<v ->The claims here,</v>

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I believe the first advertisement was 2013 or 2014.

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<v ->Right, so but you're saying</v>

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that your client's pictures have been used for decades,

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so why not go back the other 30 years then?

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<v ->[Atty. Golaszewski] In terms of?</v>

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<v ->Go back even longer than-</v>

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<v ->And well, maybe so, but the question is</v>

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what does reasonable diligence mean here?

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That is, under Your Honor's, maybe I'm misinterpreting,

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under Your Honor's suggestion,

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the day a professional model decides to license her image

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to company A lawfully, she then has some duty of inquiry

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to make sure that no other company

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in the world is using her image, and I don't know about-

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<v ->Oh, she just has a three year statute of limitations</v>

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to enforce misuse of that image.

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<v ->Well, again-</v>
<v ->Go ahead.</v>

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You understand my question.

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<v ->I do, but when we're talking about the discovery rule,</v>

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what we're talking about is reasonable diligence.

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<v ->If inherently unknowable means</v>

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that plaintiff's counsel could not have found it,

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would we ever have a suit?

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I mean, that is, it seems that the test cannot be,

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aha, your lawyer found it, and therefore,

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you're not entitled to the discovery rule.

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I mean, the discovery rule must mean something,

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<v ->Which is exactly right, and again,</v>

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what we discuss in our reply papers is

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that the defendant's position is

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that no publication ever, whether it's online generally,

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whether it's on social media, whether it's in a newspaper,

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whether it's in a magazine,

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the discovery rule can never apply,

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and that is simply antagonistic to what this court has held

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since at least the Flynn case in 1988.

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That is in Flynn, this court did not say-

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<v ->Well, there's a difference between cancer.</v>

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It's inherently unknowable.

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You get cancer, and you don't know you have cancer,

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'cause it's not gonna manifest itself.

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That's a lot different than, you know, having your picture

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on the internet in a publicly disseminated site.

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There's a difference.

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It's not just whether a lawyer can find it,

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but whether at the time it's findable.

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<v ->Well, again, I'm not sure</v>

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what the term publicly disseminated means

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in this case, Your Honor.

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<v ->Aren't these websites, they're open.</v>

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That's how they attract business, right?

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It's not like there's some kind

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of privacy protection of these websites.

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They're open for business, right?

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<v ->I disagree with that.</v>

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They are concealed under the definition of Wolsfelt,

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insofar as that they are not discoverable

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vis-a-vis a search engine query.

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<v ->Yeah, can I ask you about the steps to discover it?</v>

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And I think, you know, Justice Wendlandt makes a great point

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that we'd never have,

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we'd perversely penalize plaintiffs for bringing suit.

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But anyway, to get to these,

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to discover this information, you would have to go on

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to all these clubs in various areas

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and then look at their Facebook pages to get that.

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<v ->The only way to find it, that is exactly right.</v>

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<v ->What you can't do is a Google image search.</v>

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<v ->Absolutely not, and I think-</v>

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<v ->And this has to do with the reasonableness of diligence,</v>

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so basically your plaintiffs,

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your clients would have to go into every club in Oklahoma

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to see whether or not every club in Oklahoma has,

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or what clubs in Oklahoma have used these images

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on their Facebook pages.

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<v ->That is precisely right, and I think it's important</v>

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in light of in the opposition,

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this reference to this Facebook facial recognition software,

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which A, has no bearing on the certified question response,

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and B, is not accurate, because there is no evidence

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that you can find an image that is in an advertisement

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or is in a flyer.

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That facial recognition is talking

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about when a friend uploads a picture

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of a friend to Facebook, and that-

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<v ->These are local clubs advertising these images</v>

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on their own Facebook pages?

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<v ->[Atty. Golaszewski] I'm sorry, say that again, Your Honor?</v>

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<v ->These are local clubs advertising these images,</v>

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stealing these images for their own Facebook page?

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<v ->That's exactly right.</v>
<v J. Gaziano>Okay.</v>

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<v ->And importantly, and keeping them up.</v>

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You know, when we're talking

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about generally the reasonable diligence inquiry

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in the defamation context, for example,

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you have a news publication,

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and maybe it got a lot of press and maybe it didn't.

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That's sort of the Flynn case.

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The libel is published, and then the next day,

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there's additional news that comes out.

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Here, they are using these images for years.

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They are reaping the benefit of these images for years.

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<v ->Newsprint is easier now, because there's Google Alert,</v>

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and you can figure out if the "Boston Herald,"

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unlike the case that's cited, where you should know

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what the one of "The Boston Daily" said about the client.

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Here, you have Google Alert.

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You could know this easily.

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<v ->Well, I have a related question, so would you agree</v>

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and concede that if technology advanced such that we got

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what I'm gonna call super Google,

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like a sort of a image search that was omniscient, right?

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And so your clients could,

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because they're professional models

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who license their photographs, could easily,

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just like having a Google Alert for your name,

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have a Google Alert for their face

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that would cover such things such as different companies

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all across the country's gentleman's club website.

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If that tool existed, would you agree

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that they probably would have to bring a claim

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within three years of an image going up?

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<v ->I absolutely agree.</v>

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That would be a much harder argument for me to make

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that this is an issue of fact for the jury.

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I absolutely agree.

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<v ->So you having agreed with the extreme hypothetical,</v>

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which I appreciate, we've been asked

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in this certified question,

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not really to answer the question in this case,

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but to say what we think, you know,

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how the court should approach this question

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in this new context where we have not ever written

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an opinion in this context specifically,

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what precisely do you think are the variables

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vis-a-vis the internet, number one, which we've, you know,

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the appeals court at least has addressed to a degree,

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and then secondly, social media.

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So you raised already the issue of the availability

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of image search, and also the availability,

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presence or not in Google search results,

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which were noted in the Wolsfelt case.

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What other variables do you think are pertinent?

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<v ->I think there are a handful, and we lay them out,</v>

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which is, is the plaintiff a follower

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of the defendant's social media?

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Does the plaintiff reside in the same town as the defendant?

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An example is there's a "Stoughton Journal"

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that has a Facebook page.

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Stoughton, Massachusetts is where this is.

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<v J. Gaziano>Or Stoughton.</v>

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<v ->Stoughton, I apologize.</v>

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(all laughing)

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I'm from New York, I apologize.

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<v ->Yeah no, I kind of figured you were an out of towner.</v>

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(laughter continues)

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<v ->If a libel on an issue of public interest was printed</v>

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on that Facebook page,

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and my client was a resident of that town,

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I think it's very hard for my client to say

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that she can avail herself of the discovery rule.

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I really do, and that's a social media publication.

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So where is the plaintiff located?

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Where is the defendant located?

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Is the offending advertisement

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or publication, is that republished,

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i.e., does she have reason to know about it?

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If it's published on the journal Facebook page,

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but then it is picked up by "The New York Times,"

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I think my client has a very hard time saying,

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"I didn't know about this.

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There's no way I would've known about this."

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<v ->Counsel, could I just ask you</v>

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about the other side of the coin?

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<v ->[Atty. Golaszewski] Sure.</v>

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<v ->Because even if you list all those factors</v>

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in response to Justice Dewar's question,

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let's talk about your clients,

250
00:10:52.650 --> 00:10:55.860
and your clients aren't in any of these groups,

251
00:10:55.860 --> 00:11:00.360
so in reality, there is no statute of limitations

252
00:11:00.360 --> 00:11:02.160
for your client's claims,

253
00:11:02.160 --> 00:11:04.276
because you're going to turn around and say

254
00:11:04.276 --> 00:11:07.735
all of these local places in Sheboygan, Wisconsin,

255
00:11:07.735 --> 00:11:12.480
all of these clubs that are using my client's images,

256
00:11:12.480 --> 00:11:15.660
I'll never know about it until I know about it,

257
00:11:15.660 --> 00:11:17.220
because it's not on the internet.

258
00:11:17.220 --> 00:11:18.870
I can't do an image search.

259
00:11:18.870 --> 00:11:21.480
It's this private, not necessarily private,

260
00:11:21.480 --> 00:11:24.300
but it's a social media owned account

261
00:11:24.300 --> 00:11:27.120
that I'll never come across it unless,

262
00:11:27.120 --> 00:11:29.430
it's not really knowable.

263
00:11:29.430 --> 00:11:32.549
So what becomes, if we are looking just to Massachusetts,

264
00:11:32.549 --> 00:11:36.360
what becomes of general laws chapter 260?

265
00:11:36.360 --> 00:11:39.180
Where now 20 years from now,

266
00:11:39.180 --> 00:11:42.630
your client who's in California comes to find out

267
00:11:42.630 --> 00:11:44.850
that there's some local club in Dedham

268
00:11:44.850 --> 00:11:46.500
that happened to use some picture,

269
00:11:46.500 --> 00:11:49.320
and now here comes the cause of action.

270
00:11:49.320 --> 00:11:54.300
What you're saying on the one hand is we are gonna destroy

271
00:11:54.300 --> 00:11:57.060
the discovery rule if we do it this way,

272
00:11:57.060 --> 00:12:02.010
but the price that we pay for that is we eviscerate

273
00:12:02.010 --> 00:12:03.660
the statute of limitations.

274
00:12:03.660 --> 00:12:04.830
<v ->And I appreciate that.</v>

275
00:12:04.830 --> 00:12:07.500
One issue before I answer it, which is

276
00:12:07.500 --> 00:12:11.340
that my clients have testified in deposition

277
00:12:11.340 --> 00:12:13.590
after deposition that they have been alerted

278
00:12:13.590 --> 00:12:14.550
by fans of theirs.

279
00:12:14.550 --> 00:12:16.800
I mean, we're talking about women who have millions

280
00:12:16.800 --> 00:12:18.540
or tens of millions of social media followers.

281
00:12:18.540 --> 00:12:21.210
They have absolutely been alerted of other people,

282
00:12:21.210 --> 00:12:24.770
that is by fans, someone direct messaging them on Instagram

283
00:12:24.770 --> 00:12:27.420
or Facebook, and telling them, "Hey, we saw this."

284
00:12:27.420 --> 00:12:30.240
So I think right then, my client would be on notice.

285
00:12:30.240 --> 00:12:31.140
So it's not just a matter

286
00:12:31.140 --> 00:12:32.820
of someone coming in 20 years later.

287
00:12:32.820 --> 00:12:35.250
There are many, many examples of that happening.

288
00:12:35.250 --> 00:12:38.550
But on the question of do you get a,

289
00:12:38.550 --> 00:12:40.507
that is, 20 years from now, could we come in and say,

290
00:12:40.507 --> 00:12:43.349
"Well, there was no reason for us to know about this."

291
00:12:43.349 --> 00:12:46.650
We're looking at triggers.

292
00:12:46.650 --> 00:12:51.150
This is what this court has said since 1974, at least.

293
00:12:51.150 --> 00:12:52.980
What is the event that was likely

294
00:12:52.980 --> 00:12:55.320
to put the plaintiff on notice of her claim?

295
00:12:55.320 --> 00:12:57.916
And if it happened 20 years ago,

296
00:12:57.916 --> 00:13:01.980
you know, when we're not that extreme, but again,

297
00:13:01.980 --> 00:13:04.560
I would defer to what this court has consistently said.

298
00:13:04.560 --> 00:13:06.390
What is the event or events?

299
00:13:06.390 --> 00:13:08.235
Why should she have been on notice?

300
00:13:08.235 --> 00:13:10.560
<v ->Well, I don't know that we can consistently say,</v>

301
00:13:10.560 --> 00:13:12.630
because we wouldn't be here with a certified question

302
00:13:12.630 --> 00:13:13.667
if that were the case, right?

303
00:13:13.667 --> 00:13:17.430
So the issue about what to do

304
00:13:17.430 --> 00:13:20.640
in this context is a little bit more nuanced than that.

305
00:13:20.640 --> 00:13:22.590
So you know, you take the view

306
00:13:22.590 --> 00:13:26.228
that it's not really like a defamation case

307
00:13:26.228 --> 00:13:30.210
where the lever is pulled on publication.

308
00:13:30.210 --> 00:13:31.290
It's not really like that.

309
00:13:31.290 --> 00:13:32.677
You're looking to and saying,

310
00:13:32.677 --> 00:13:33.900
"There's gotta be some trigger."

311
00:13:33.900 --> 00:13:35.370
That's what I'm focused on.

312
00:13:35.370 --> 00:13:38.755
And if your client happens to be not,

313
00:13:38.755 --> 00:13:41.220
you don't have a large social media following,

314
00:13:41.220 --> 00:13:43.417
you don't get some good Samaritan that said,

315
00:13:43.417 --> 00:13:45.720
"Hey, I saw this in my local town

316
00:13:45.720 --> 00:13:47.670
and I know you're half a world away,"

317
00:13:47.670 --> 00:13:49.467
I'm talking about that case,

318
00:13:49.467 --> 00:13:51.510
and that case under your scenario,

319
00:13:51.510 --> 00:13:55.320
there is no statute of limitations, right?

320
00:13:55.320 --> 00:13:58.290
<v ->I can see where it goes there, but again there are,</v>

321
00:13:58.290 --> 00:13:59.970
when we're looking at defamation,

322
00:13:59.970 --> 00:14:01.980
and maybe the term to use is not trigger,

323
00:14:01.980 --> 00:14:03.150
but when we're looking at defamation,

324
00:14:03.150 --> 00:14:04.377
when you look at Flynn, you look at Wolsfelt,

325
00:14:04.377 --> 00:14:06.618
you look at the Cass case that they cited,

326
00:14:06.618 --> 00:14:09.960
extremely public dispute.

327
00:14:09.960 --> 00:14:12.217
There was, the "Boston Herald" was writing about this,

328
00:14:12.217 --> 00:14:14.070
"The Boston Globe" was writing about this,

329
00:14:14.070 --> 00:14:15.840
we're talking about extreme publicity.

330
00:14:15.840 --> 00:14:19.020
There was zero publicity about these advertisements,

331
00:14:19.020 --> 00:14:21.630
so while I think there is a distinction

332
00:14:21.630 --> 00:14:23.730
between a misappropriation, and if you look at Flynn,

333
00:14:23.730 --> 00:14:25.830
what is the "gist of the action," there's a difference

334
00:14:25.830 --> 00:14:27.600
between misappropriation and defamation.

335
00:14:27.600 --> 00:14:29.310
But even if the court was to say, "No, we don't agree

336
00:14:29.310 --> 00:14:31.050
with that, we're talking about publication,"

337
00:14:31.050 --> 00:14:33.390
then I wanna know what notice

338
00:14:33.390 --> 00:14:34.470
the plaintiffs would've gotten,

339
00:14:34.470 --> 00:14:36.300
that is, was it extremely public?

340
00:14:36.300 --> 00:14:39.360
That is, some of my clients are very well known people.

341
00:14:39.360 --> 00:14:40.480
Her image was used

342
00:14:41.988 --> 00:14:43.590
in a dental practice in Massachusetts.

343
00:14:43.590 --> 00:14:45.840
That could easily get press,

344
00:14:45.840 --> 00:14:48.720
and if that gets press and someone says, "Hey, the-"

345
00:14:48.720 --> 00:14:53.236
<v ->If that gets press in Stoughton, and client lives in LA,</v>

346
00:14:53.236 --> 00:14:55.650
I just don't know how this is gonna work.

347
00:14:55.650 --> 00:14:57.477
<v ->I agree that that it's-</v>

348
00:14:57.477 --> 00:14:58.800
<v ->And all these clients are,</v>

349
00:14:58.800 --> 00:15:00.639
they're national models, right?

350
00:15:00.639 --> 00:15:02.605
They're national figures,

351
00:15:02.605 --> 00:15:06.724
so this local rule doesn't make any sense, does it?

352
00:15:06.724 --> 00:15:10.410
Whether if you got notice in your town,

353
00:15:10.410 --> 00:15:13.890
it just doesn't seem, and also the Massachusetts case,

354
00:15:13.890 --> 00:15:18.890
right at the actual article that caused the suit wasn't in,

355
00:15:19.890 --> 00:15:22.560
even though the person was in that town,

356
00:15:22.560 --> 00:15:25.860
the article appeared in Iowa or something like that, right?

357
00:15:25.860 --> 00:15:27.300
<v ->Which case is that, Your Honor, I'm sorry?</v>

358
00:15:27.300 --> 00:15:28.410
<v ->The appeals court case.</v>

359
00:15:28.410 --> 00:15:31.770
<v ->The Wolsfelt, no, Wolsfelt was the,</v>

360
00:15:31.770 --> 00:15:32.730
and I may mispronounce this-

361
00:15:32.730 --> 00:15:33.563
<v ->There are two cases, right?</v>

362
00:15:33.563 --> 00:15:34.396
I can't remember.

363
00:15:34.396 --> 00:15:36.750
There's one case where there's a local publication,

364
00:15:36.750 --> 00:15:39.293
but it's also republished in another state, right?

365
00:15:39.293 --> 00:15:41.970
<v ->There's the Flynn case where the AP came down,</v>

366
00:15:41.970 --> 00:15:45.420
and it got published both in the "Boston Herald American"

367
00:15:45.420 --> 00:15:47.070
and in the "St. Louis Post Dispatch."

368
00:15:47.070 --> 00:15:49.560
And what the Flynn case turned on,

369
00:15:49.560 --> 00:15:52.080
it turned on a few factors, but one was the fact

370
00:15:52.080 --> 00:15:55.230
that there was an extremely public dispute

371
00:15:55.230 --> 00:15:57.510
that was picked up by a lot of different news organizations

372
00:15:57.510 --> 00:16:00.120
about racial tensions in the high school, number one,

373
00:16:00.120 --> 00:16:01.200
and then number two is

374
00:16:01.200 --> 00:16:03.067
that the "Boston Herald American" was available

375
00:16:03.067 --> 00:16:04.890
in Flynn's hometown.

376
00:16:04.890 --> 00:16:06.610
Flynn's grandfather was collecting clippings

377
00:16:06.610 --> 00:16:08.040
about all the press.

378
00:16:08.040 --> 00:16:09.810
They had considered bringing a defamation case

379
00:16:09.810 --> 00:16:11.940
in 1978 against other entities.

380
00:16:11.940 --> 00:16:13.200
He was on notice

381
00:16:13.200 --> 00:16:14.997
that there was extraordinary press about this.

382
00:16:14.997 --> 00:16:17.910
<v ->And so in your case, the equivalent would be,</v>

383
00:16:17.910 --> 00:16:20.370
okay, she lives, I don't know where your client lives,

384
00:16:20.370 --> 00:16:23.409
but she lives in New York or LA or she lives Chicago,

385
00:16:23.409 --> 00:16:28.409
and there's some club like his in Chicago puts it up.

386
00:16:30.090 --> 00:16:32.760
Is she on notice about all the clubs

387
00:16:32.760 --> 00:16:35.280
in the middle of Nebraska that are doing this?

388
00:16:35.280 --> 00:16:38.610
<v ->She's not, but again, A, we look to the policy</v>

389
00:16:38.610 --> 00:16:41.220
behind the discovery rule, which is that is unfair

390
00:16:41.220 --> 00:16:43.380
to punish a plaintiff before she knows or should have known.

391
00:16:43.380 --> 00:16:44.536
And I'd also ask,

392
00:16:44.536 --> 00:16:46.413
what interests are we really protecting here?

393
00:16:46.413 --> 00:16:49.050
<v ->Well, I'm not saying there's anything honorable</v>

394
00:16:49.050 --> 00:16:49.920
about what they're doing.

395
00:16:49.920 --> 00:16:50.753
I'm just trying to understand

396
00:16:50.753 --> 00:16:51.930
what the statute of limitations is.

397
00:16:51.930 --> 00:16:54.300
<v ->I think the statute of limitations is going to be based</v>

398
00:16:54.300 --> 00:16:57.450
on what she knew or reasonably should have known,

399
00:16:57.450 --> 00:16:59.010
based on what events occurred,

400
00:16:59.010 --> 00:17:00.750
and I agree in these situations,

401
00:17:00.750 --> 00:17:03.150
there's not a specific event they can point to.

402
00:17:03.150 --> 00:17:04.980
<v ->Is there a case like yours</v>

403
00:17:04.980 --> 00:17:07.170
that defines inherently unknowable

404
00:17:07.170 --> 00:17:09.052
the way you're describing it?

405
00:17:09.052 --> 00:17:10.560
<v ->There is not.</v>

406
00:17:10.560 --> 00:17:14.937
What I have noticed since 2014 in the Magalia Cane case.

407
00:17:16.500 --> 00:17:20.850
<v ->Closest case to this wide, 'cause again,</v>

408
00:17:20.850 --> 00:17:23.340
maybe I'm misconceiving inherently unknowable,

409
00:17:23.340 --> 00:17:25.260
but to me, it's always in the cancer

410
00:17:25.260 --> 00:17:27.390
or the environmental contamination.

411
00:17:27.390 --> 00:17:30.060
I may just not be familiar with it in this context.

412
00:17:30.060 --> 00:17:33.330
<v ->Well, there's the Ortiz case, which has differences,</v>

413
00:17:33.330 --> 00:17:36.084
but it is a section 214 right of privacy claim

414
00:17:36.084 --> 00:17:41.084
in which there was no talk about a single publication rule

415
00:17:41.280 --> 00:17:42.830
while was reason of defamation.

416
00:17:43.800 --> 00:17:45.043
Now, in that case,

417
00:17:45.043 --> 00:17:49.620
the plaintiff's lawyer received certain documents,

418
00:17:49.620 --> 00:17:51.186
and the court of appeals said,

419
00:17:51.186 --> 00:17:54.330
"Well, that was suspicious circumstances

420
00:17:54.330 --> 00:17:56.970
that would've put the plaintiff on notice."

421
00:17:56.970 --> 00:17:58.170
<v J. Kafker>That's easy, that case.</v>

422
00:17:58.170 --> 00:18:00.900
<v ->Well, but in all of these cases,</v>

423
00:18:00.900 --> 00:18:03.550
and there are reams and reams, including those cases,

424
00:18:04.560 --> 00:18:06.510
courts are always scouring the record.

425
00:18:06.510 --> 00:18:08.850
They're always looking for the event

426
00:18:08.850 --> 00:18:10.762
that would've put them on notice, and if there's no event,

427
00:18:10.762 --> 00:18:12.960
then they say, and they will have an opportunity

428
00:18:12.960 --> 00:18:15.420
before a jury to say, "You know what?

429
00:18:15.420 --> 00:18:17.880
They have brought collectively X amount of cases,

430
00:18:17.880 --> 00:18:20.617
they should have been on notice of this," and I will say,

431
00:18:20.617 --> 00:18:22.470
"Well, why should they have been on notice of this?"

432
00:18:22.470 --> 00:18:23.880
And that's gonna be for the jury.

433
00:18:23.880 --> 00:18:25.807
Again, what we're talking about here is

434
00:18:25.807 --> 00:18:28.530
deference to the jury generally.

435
00:18:28.530 --> 00:18:29.772
That is the general rule here.

436
00:18:29.772 --> 00:18:31.410
This is the Riley case

437
00:18:31.410 --> 00:18:34.320
that Massachusetts courts show no reluctance whatsoever

438
00:18:34.320 --> 00:18:36.540
to let juries decide issues of fact

439
00:18:36.540 --> 00:18:38.160
relating to statutes of limitations.

440
00:18:38.160 --> 00:18:39.930
That's all we're talking about here,

441
00:18:39.930 --> 00:18:42.510
that the court should not be making a determination

442
00:18:42.510 --> 00:18:46.170
as a matter of law that the plaintiffs in this case,

443
00:18:46.170 --> 00:18:49.380
that the claims accrued upon publication,

444
00:18:49.380 --> 00:18:51.000
especially when the images were being used

445
00:18:51.000 --> 00:18:52.503
for years thereafter.

446
00:18:53.430 --> 00:18:54.330
I see my time is up,

447
00:18:54.330 --> 00:18:56.838
unless anyone else has any questions.

448
00:18:56.838 --> 00:18:57.671
<v ->Okay, we're all set.</v>

449
00:18:57.671 --> 00:18:58.504
<v ->[Atty. Golaszewski] Thank you very much.</v>

450
00:18:58.504 --> 00:18:59.337
<v ->Thank you.</v>

451
00:19:00.480 --> 00:19:01.323
Attorney Monson?

452
00:19:02.848 --> 00:19:07.848
<v ->May IT please the court, Chris Monson (indistinct).</v>

453
00:19:09.420 --> 00:19:11.370
Madam Chief Justice and Justices,

454
00:19:11.370 --> 00:19:13.800
the Wolsfelt case is directly on point here,

455
00:19:13.800 --> 00:19:15.960
and the ruling and the holding in that case is

456
00:19:15.960 --> 00:19:17.520
what should be adopted moving forward

457
00:19:17.520 --> 00:19:19.441
in our new digital world.

458
00:19:19.441 --> 00:19:21.690
Wolsfelt is on point here because it took a look

459
00:19:21.690 --> 00:19:25.710
at something that's posted in a relatively obscure part

460
00:19:25.710 --> 00:19:28.470
of the internet, the "Gloucester Times."

461
00:19:28.470 --> 00:19:30.510
<v J. Wendlandt>Weren't the parties from Gloucester?</v>

462
00:19:30.510 --> 00:19:31.343
<v Atty. Monson>I'm sorry?</v>

463
00:19:31.343 --> 00:19:32.790
<v ->Were not the parties from Gloucester</v>

464
00:19:32.790 --> 00:19:35.430
where the altercation took place?

465
00:19:35.430 --> 00:19:37.830
<v ->Absolutely, and that's a key part of the holding is</v>

466
00:19:37.830 --> 00:19:40.530
that it was available to the plaintiff.

467
00:19:40.530 --> 00:19:42.690
Facebook, where these images were posted,

468
00:19:42.690 --> 00:19:46.800
is a massive, publicly available website.

469
00:19:46.800 --> 00:19:48.747
<v ->It's not all publicly available, though.</v>

470
00:19:48.747 --> 00:19:50.340
<v ->Yes, Your Honor, you're correct,</v>

471
00:19:50.340 --> 00:19:51.960
but these images were publicly available.

472
00:19:51.960 --> 00:19:53.400
They were not behind any firewall.

473
00:19:53.400 --> 00:19:55.230
They were not behind any privacy walls.

474
00:19:55.230 --> 00:19:57.600
They were all available to the public

475
00:19:57.600 --> 00:19:58.950
for anybody who chose to search for them.

476
00:19:58.950 --> 00:20:01.428
<v ->And how does one search an image on Facebook?</v>

477
00:20:01.428 --> 00:20:04.800
<v ->Back in the timeframe between 2010 and 2011,</v>

478
00:20:04.800 --> 00:20:06.545
Facebook offered facial recognition searches

479
00:20:06.545 --> 00:20:08.970
where you could search based off of your face,

480
00:20:08.970 --> 00:20:10.190
and it would identify different images

481
00:20:10.190 --> 00:20:12.210
of you throughout the Facebook platform.

482
00:20:12.210 --> 00:20:15.090
<v ->That was readily available tool on Facebook?</v>

483
00:20:15.090 --> 00:20:17.334
One just opened it up and said,

484
00:20:17.334 --> 00:20:19.050
"Hey, do you wanna see, you know,

485
00:20:19.050 --> 00:20:21.299
Justice Wendlandt somewhere, just go ahead

486
00:20:21.299 --> 00:20:25.590
and do Facebook facial recognition"?

487
00:20:25.590 --> 00:20:26.423
<v ->For your account,</v>

488
00:20:26.423 --> 00:20:28.361
and each of these plaintiffs had an account.

489
00:20:28.361 --> 00:20:29.520
<v J. Wendlandt>And that's in the record?</v>

490
00:20:29.520 --> 00:20:30.353
<v ->Yes, Your Honor.</v>

491
00:20:30.353 --> 00:20:31.620
I think it starts at page 47 with-

492
00:20:31.620 --> 00:20:32.520
<v J. Wendlandt>47?</v>

493
00:20:32.520 --> 00:20:35.820
<v ->I'm sorry, RA 247 with "The New York Times" article.</v>

494
00:20:35.820 --> 00:20:37.740
Now, that has since been pulled down as of December.

495
00:20:37.740 --> 00:20:40.050
<v ->Wait, you have a "New York Times" article for this?</v>

496
00:20:40.050 --> 00:20:40.883
<v ->And the publication-</v>

497
00:20:40.883 --> 00:20:42.930
<v ->Anything that's actually admissible?</v>

498
00:20:42.930 --> 00:20:46.020
<v ->The publication from Facebook itself on the issues.</v>

499
00:20:46.020 --> 00:20:47.970
<v ->Doesn't "The New York Times" article say</v>

500
00:20:47.970 --> 00:20:52.970
that what this tool was was when users had photo albums,

501
00:20:53.730 --> 00:20:58.417
the tool would automatically tag people and say,

502
00:20:58.417 --> 00:21:01.710
"Oh, there's Brian Jones, there's Brianna Jones," et cetera,

503
00:21:01.710 --> 00:21:03.180
and they have raised,

504
00:21:03.180 --> 00:21:04.770
the other side has raised the question

505
00:21:04.770 --> 00:21:07.860
whether this would even apply,

506
00:21:07.860 --> 00:21:11.790
this tool would've even been applied by Facebook

507
00:21:11.790 --> 00:21:14.160
or whoever to an advertisement of this kind.

508
00:21:14.160 --> 00:21:17.048
Is there anything in the record bearing on that question?

509
00:21:17.048 --> 00:21:19.573
<v ->Yes, Your Honor, so there is different aspects of it.</v>

510
00:21:19.573 --> 00:21:22.917
The tool did did exactly what you talked about,

511
00:21:22.917 --> 00:21:26.790
but you could also set a notice anytime

512
00:21:26.790 --> 00:21:29.400
that a image of yourself was posted onto Facebook,

513
00:21:29.400 --> 00:21:30.521
that you would be alerted to it.

514
00:21:30.521 --> 00:21:33.390
<v ->But where in Facebook?</v>

515
00:21:33.390 --> 00:21:35.640
<v ->To any publicly available, my understanding is</v>

516
00:21:35.640 --> 00:21:40.020
to any publicly available Facebook page,

517
00:21:40.020 --> 00:21:41.911
anything that was posted of you,

518
00:21:41.911 --> 00:21:43.563
you could get notified of that.

519
00:21:44.430 --> 00:21:45.363
<v ->In 2010?</v>

520
00:21:46.350 --> 00:21:49.712
<v ->So 2010 into December of 2021,</v>

521
00:21:49.712 --> 00:21:52.110
and then Facebook removed that feature.

522
00:21:52.110 --> 00:21:54.210
<v ->Is there a finding of fact to this regard</v>

523
00:21:54.210 --> 00:21:56.700
by the judge who certified the question?

524
00:21:56.700 --> 00:21:57.982
<v ->I don't believe so, Your Honor.</v>

525
00:21:57.982 --> 00:21:58.980
<v J. Wendlandt>Okay.</v>

526
00:21:58.980 --> 00:22:00.840
<v J. Gaziano>Wouldn't this be a jury issue then?</v>

527
00:22:00.840 --> 00:22:01.710
<v J. Wendlandt>Right.</v>

528
00:22:01.710 --> 00:22:03.573
<v ->Well, Your Honor, I think we have to take a step back</v>

529
00:22:03.573 --> 00:22:05.880
and start back with the beginning

530
00:22:05.880 --> 00:22:07.532
on what is inherently unknowable.

531
00:22:07.532 --> 00:22:10.230
And the court and the appellate courts have gone through

532
00:22:10.230 --> 00:22:13.140
and repeatedly found that inherently unknowable means

533
00:22:13.140 --> 00:22:15.776
incapable of detection through reasonable diligence,

534
00:22:15.776 --> 00:22:18.900
not did not find it because I searched for it reasonably.

535
00:22:18.900 --> 00:22:20.910
It's incapable of detection,

536
00:22:20.910 --> 00:22:22.704
and that's the standard that's been applied

537
00:22:22.704 --> 00:22:24.600
for more than 40 years now.

538
00:22:24.600 --> 00:22:27.960
<v ->It seems to me that if we have this debate about whether</v>

539
00:22:27.960 --> 00:22:31.770
or not facial recognition on Facebook was available

540
00:22:31.770 --> 00:22:33.060
to these plaintiffs,

541
00:22:33.060 --> 00:22:35.490
this seems like a perfectly fine question

542
00:22:35.490 --> 00:22:36.663
for a jury to answer.

543
00:22:38.430 --> 00:22:40.380
<v ->I understand the position there, Your Honor.</v>

544
00:22:40.380 --> 00:22:42.690
I would say that I don't think it gets to a jury,

545
00:22:42.690 --> 00:22:45.660
'cause it's not inherently unknowable without taking

546
00:22:45.660 --> 00:22:48.900
into consideration even the facial recognition software.

547
00:22:48.900 --> 00:22:51.450
It's not incapable of detection as-

548
00:22:51.450 --> 00:22:53.814
<v J. Wendlandt>Through reasonable diligence.</v>

549
00:22:53.814 --> 00:22:55.170
<v ->Correct, Your Honor.</v>
<v J. Wendlandt>Okay.</v>

550
00:22:55.170 --> 00:22:56.611
<v ->Incapable of detection, though, not just-</v>

551
00:22:56.611 --> 00:22:58.683
<v ->Through reasonable diligence,</v>

552
00:22:58.683 --> 00:23:01.680
so the question is what is reasonable diligence?

553
00:23:01.680 --> 00:23:03.437
<v ->Oh, I would suggest to the court,</v>

554
00:23:03.437 --> 00:23:06.360
and it is backed up by the case law that we cite,

555
00:23:06.360 --> 00:23:08.100
reasonable diligence is when you hire somebody

556
00:23:08.100 --> 00:23:10.260
to find it and they can find it,

557
00:23:10.260 --> 00:23:11.850
that's not incapable of detection.

558
00:23:11.850 --> 00:23:14.820
<v ->That runs into the same issue</v>

559
00:23:14.820 --> 00:23:18.360
that if you hire an attorney,

560
00:23:18.360 --> 00:23:21.000
we would never see these cases.

561
00:23:21.000 --> 00:23:21.833
<v ->Your Honor-</v>

562
00:23:21.833 --> 00:23:23.520
<v ->The discovery rule would never apply,</v>

563
00:23:23.520 --> 00:23:27.543
because by definition, at some point, you found out.

564
00:23:28.470 --> 00:23:29.303
<v Atty. Monson>Absolutely, but-</v>

565
00:23:29.303 --> 00:23:30.810
<v J. Wendlandt>So that can't be the test.</v>

566
00:23:30.810 --> 00:23:31.740
<v ->And if I could address that,</v>

567
00:23:31.740 --> 00:23:33.570
the discovery rule would still apply.

568
00:23:33.570 --> 00:23:35.760
because even if the cause

569
00:23:35.760 --> 00:23:38.194
of action is inherently unknowable when it happens,

570
00:23:38.194 --> 00:23:40.710
there could be a event later on

571
00:23:40.710 --> 00:23:43.050
that causes it not to become inherently unknowable,

572
00:23:43.050 --> 00:23:44.727
and that's when you get to the reasonable diligence

573
00:23:44.727 --> 00:23:48.780
and the actual knowledge elements

574
00:23:48.780 --> 00:23:51.060
of the discovery rule test.

575
00:23:51.060 --> 00:23:54.150
So it's first, is this even an inherently unknowable cause

576
00:23:54.150 --> 00:23:56.370
of action to trigger the start of the discovery rule?

577
00:23:56.370 --> 00:24:00.360
And then was it reasonable for them not to find out

578
00:24:00.360 --> 00:24:02.850
until X date, and did they actually not find out

579
00:24:02.850 --> 00:24:04.020
until X date?
<v ->And in your view,</v>

580
00:24:04.020 --> 00:24:06.213
the event is the lawsuit?

581
00:24:07.410 --> 00:24:10.252
<v ->The event is, the initial event is the publication</v>

582
00:24:10.252 --> 00:24:11.670
of these images.

583
00:24:11.670 --> 00:24:13.140
<v ->Right, but what's the trigger, right?</v>

584
00:24:13.140 --> 00:24:17.370
So if you have these plaintiffs who are in LA or Miami

585
00:24:17.370 --> 00:24:19.950
or wherever, what's the trigger

586
00:24:19.950 --> 00:24:23.340
to find out what's going on in this club?

587
00:24:23.340 --> 00:24:26.460
<v ->Sure, and that follows the single publication rule</v>

588
00:24:26.460 --> 00:24:30.510
and the defamation side of all the cases that we've cited,

589
00:24:30.510 --> 00:24:34.170
that the offense happens when it's published.

590
00:24:34.170 --> 00:24:35.003
<v J. Gaziano>Right.</v>

591
00:24:35.003 --> 00:24:37.680
<v ->And to support that, you take a look at these claims,</v>

592
00:24:37.680 --> 00:24:40.740
and these claims are that these plaintiffs were injured

593
00:24:40.740 --> 00:24:44.100
because people in their industry saw these images,

594
00:24:44.100 --> 00:24:46.620
and that was detrimental to their career,

595
00:24:46.620 --> 00:24:48.060
and they can't have it both ways.

596
00:24:48.060 --> 00:24:49.830
<v ->Well, yeah, I mean, they can.</v>

597
00:24:49.830 --> 00:24:51.210
I mean, they can be models,

598
00:24:51.210 --> 00:24:55.860
and like they don't want your club to have pictures of them.

599
00:24:55.860 --> 00:24:57.360
They can be damaged by that.

600
00:24:57.360 --> 00:24:59.070
<v J. Dewar>Without being paid.</v>

601
00:24:59.070 --> 00:25:00.510
<v ->Yeah, without being paid.</v>

602
00:25:00.510 --> 00:25:01.582
<v ->Absolutely, Your Honor,</v>

603
00:25:01.582 --> 00:25:03.150
but that's not the point I'm trying to make.

604
00:25:03.150 --> 00:25:05.682
The point I'm making is if the industry saw these images

605
00:25:05.682 --> 00:25:08.145
and they were damaged because the industry saw these images,

606
00:25:08.145 --> 00:25:10.710
then these images are not inherently unknowable.

607
00:25:10.710 --> 00:25:12.300
If people in the industry saw them-

608
00:25:12.300 --> 00:25:14.340
<v ->Are there any, I mean, you would think there'd be,</v>

609
00:25:14.340 --> 00:25:18.180
given this seems like a widespread problem,

610
00:25:18.180 --> 00:25:21.210
misappropriation of images of celebrities

611
00:25:21.210 --> 00:25:23.610
and beautiful people, are there cases

612
00:25:23.610 --> 00:25:25.380
that define inherently unknowable

613
00:25:25.380 --> 00:25:27.450
the way you want us to define it?

614
00:25:27.450 --> 00:25:28.590
<v Atty. Monson>Yes, Your Honor.</v>

615
00:25:28.590 --> 00:25:31.230
<v ->Because it's not those two Massachusetts cases</v>

616
00:25:31.230 --> 00:25:33.180
you've cited, they're different.

617
00:25:33.180 --> 00:25:35.580
<v ->The Flynn and the Wolsfelt cases are more</v>

618
00:25:35.580 --> 00:25:38.220
about publication, but the incapable of-

619
00:25:38.220 --> 00:25:40.950
<v ->They're saying their clients are everywhere on,</v>

620
00:25:40.950 --> 00:25:45.030
I mean, they're famous, they have a million followers,

621
00:25:45.030 --> 00:25:47.793
their images are very popular,

622
00:25:50.220 --> 00:25:55.020
and people like your clients are misappropriating them

623
00:25:55.020 --> 00:25:56.610
and saying basically they appear

624
00:25:56.610 --> 00:25:58.653
in their adult entertainment clubs.

625
00:26:01.819 --> 00:26:03.150
How do they keep track of all of this?

626
00:26:03.150 --> 00:26:05.343
And I just don't know how this works,

627
00:26:07.050 --> 00:26:08.820
and it's not that Massachusetts case

628
00:26:08.820 --> 00:26:11.220
where you live in Gloucester,

629
00:26:11.220 --> 00:26:13.380
the "Gloucester Times" publishes an article,

630
00:26:13.380 --> 00:26:16.380
and then it gets republished somewhere else, that's easy.

631
00:26:16.380 --> 00:26:19.560
This is much more difficult, isn't it, to police?

632
00:26:19.560 --> 00:26:21.810
<v ->I'd say in terms of geographic location,</v>

633
00:26:21.810 --> 00:26:23.970
it is a little bit trickier, but in terms

634
00:26:23.970 --> 00:26:26.070
of what these plaintiffs are and what they do for a living-

635
00:26:26.070 --> 00:26:27.330
<v ->Are there cases like this?</v>

636
00:26:27.330 --> 00:26:29.820
'Cause this seems like this should have happened some,

637
00:26:29.820 --> 00:26:32.040
this statute of imitation problem should have come up

638
00:26:32.040 --> 00:26:33.780
somewhere in this context.

639
00:26:33.780 --> 00:26:35.400
Have you found anything to help us?

640
00:26:35.400 --> 00:26:39.810
<v ->I found cases through California, Illinois, Delaware, not-</v>

641
00:26:39.810 --> 00:26:42.151
<v ->That applied the inherently unknowable</v>

642
00:26:42.151 --> 00:26:46.167
into the Facebook social media?

643
00:26:46.167 --> 00:26:48.930
<v ->Not specific to face Facebook, I don't think.</v>

644
00:26:48.930 --> 00:26:50.184
<v J. Kafker>How about social media in general?</v>

645
00:26:50.184 --> 00:26:52.560
<v ->To website posts in general.</v>

646
00:26:52.560 --> 00:26:54.960
<v ->And which case is that in your brief?</v>

647
00:26:54.960 --> 00:26:56.430
<v Atty. Monson>Let's see.</v>

648
00:26:56.430 --> 00:26:58.440
<v ->Well, website posts are different, right?</v>

649
00:26:58.440 --> 00:27:00.900
I mean, obviously, you should find

650
00:27:00.900 --> 00:27:02.250
in your brief where that is,

651
00:27:02.250 --> 00:27:05.223
but website posts seems different than social media.

652
00:27:06.510 --> 00:27:08.790
<v ->I would agree, and in fact, I think it weighs in favor</v>

653
00:27:08.790 --> 00:27:09.647
of the appellates in this case, Your Honor.

654
00:27:09.647 --> 00:27:10.860
<v J. Wendlandt>Why is that?</v>

655
00:27:10.860 --> 00:27:12.360
<v ->Because these are plaintiffs</v>

656
00:27:12.360 --> 00:27:14.160
who make their living off of social media.

657
00:27:14.160 --> 00:27:15.990
They're social media influencers.

658
00:27:15.990 --> 00:27:17.790
They know these networks, they know Facebook,

659
00:27:17.790 --> 00:27:20.760
they know how they work better than most of us.

660
00:27:20.760 --> 00:27:22.230
They're not just-
<v ->They know how it works,</v>

661
00:27:22.230 --> 00:27:23.880
but they aren't necessarily looking

662
00:27:23.880 --> 00:27:26.280
at random gentleman's club's websites

663
00:27:26.280 --> 00:27:28.156
all across the entire country, right?

664
00:27:28.156 --> 00:27:30.630
<v ->They've been on notice since at least 2016</v>

665
00:27:30.630 --> 00:27:32.388
when they started filing similar lawsuits.

666
00:27:32.388 --> 00:27:34.740
<v J. Wendlandt>Of these images?</v>

667
00:27:34.740 --> 00:27:36.630
<v ->Of these images and similar images,</v>

668
00:27:36.630 --> 00:27:38.490
and that's in the appellate briefing.

669
00:27:38.490 --> 00:27:39.480
<v ->I thought that was the reason</v>

670
00:27:39.480 --> 00:27:42.990
that the judge reversed the prior decision.

671
00:27:42.990 --> 00:27:47.990
<v ->Yes, the 365 cases or the causes of action</v>

672
00:27:49.080 --> 00:27:50.280
that was included in the statement

673
00:27:50.280 --> 00:27:52.470
in fact was just similar claims.

674
00:27:52.470 --> 00:27:56.190
We supplemented that with these specific images

675
00:27:56.190 --> 00:27:58.890
that are in dispute in this case from each of the plaintiffs

676
00:27:58.890 --> 00:27:59.910
that occurred at least three,

677
00:27:59.910 --> 00:28:01.380
that were at least part of lawsuits

678
00:28:01.380 --> 00:28:03.720
at least three years before this lawsuit was filed.

679
00:28:03.720 --> 00:28:07.170
<v ->Are are you aware of, I recognize</v>

680
00:28:07.170 --> 00:28:08.880
that this context is a little different than many

681
00:28:08.880 --> 00:28:11.040
because they are licensing their images,

682
00:28:11.040 --> 00:28:12.780
they are sending the images out into the world,

683
00:28:12.780 --> 00:28:14.610
and so they are on notice at least

684
00:28:14.610 --> 00:28:16.260
that their images are out in the world,

685
00:28:16.260 --> 00:28:18.270
which is not true for everyone.

686
00:28:18.270 --> 00:28:20.430
Are you aware of any case law that is held

687
00:28:20.430 --> 00:28:24.156
that reasonable inquiry efforts include

688
00:28:24.156 --> 00:28:27.250
having to literally hire a lawyer

689
00:28:28.200 --> 00:28:30.180
because of the nature of your situation?

690
00:28:30.180 --> 00:28:33.000
Like in other words, hire someone else to do diligence

691
00:28:33.000 --> 00:28:34.920
for you because it is clearly not possible

692
00:28:34.920 --> 00:28:36.330
for this person to do it.

693
00:28:36.330 --> 00:28:38.310
<v ->Yeah, I don't have anything specific</v>

694
00:28:38.310 --> 00:28:40.410
on the social media, specific to social media,

695
00:28:40.410 --> 00:28:43.410
but I think the Melrose Housing case is on point on that.

696
00:28:43.410 --> 00:28:44.670
It's more of a construction case

697
00:28:44.670 --> 00:28:47.083
where they hired individuals to monitor the construction

698
00:28:47.083 --> 00:28:51.060
and ensure that the construction was built properly.

699
00:28:51.060 --> 00:28:52.290
<v ->I noticed that case in your brief,</v>

700
00:28:52.290 --> 00:28:53.460
and you cited a couple of others,

701
00:28:53.460 --> 00:28:56.070
and the difficulty is those cases are situations

702
00:28:56.070 --> 00:28:59.250
where the parties were all already

703
00:28:59.250 --> 00:29:00.990
in a relationship with each other, right?

704
00:29:00.990 --> 00:29:03.510
Like the house was being built or a project was being done,

705
00:29:03.510 --> 00:29:06.270
and you know, they already knew about each other.

706
00:29:06.270 --> 00:29:09.390
And the difficulty here is that I think you have to concede

707
00:29:09.390 --> 00:29:11.280
a little bit of a needle in a haystack problem.

708
00:29:11.280 --> 00:29:12.930
We're talking about images

709
00:29:12.930 --> 00:29:15.780
that may be on the individual Facebook pages

710
00:29:15.780 --> 00:29:20.010
of any number of clubs, and it's just not possible

711
00:29:20.010 --> 00:29:24.570
for a single human to probably really in a year look

712
00:29:24.570 --> 00:29:27.210
at the social media pages

713
00:29:27.210 --> 00:29:30.273
of every single club in the entire country,

714
00:29:31.440 --> 00:29:33.810
although obviously, these people were able to hire lawyers

715
00:29:33.810 --> 00:29:35.610
who found a bunch of images.

716
00:29:35.610 --> 00:29:38.340
So I just would be interested in your thoughts

717
00:29:38.340 --> 00:29:42.660
on how the reasonable inquiry should happen

718
00:29:42.660 --> 00:29:44.550
in this kind of context.

719
00:29:44.550 --> 00:29:47.040
<v ->Yeah, I think in some of the other jurisdictions,</v>

720
00:29:47.040 --> 00:29:50.790
called the mass media inherently unknowable pardon.

721
00:29:50.790 --> 00:29:52.500
I think California uses the mass media,

722
00:29:52.500 --> 00:29:53.520
but when it's posted up-

723
00:29:53.520 --> 00:29:55.440
<v J. Kafker>I don't find a California case in your brief.</v>

724
00:29:55.440 --> 00:29:57.600
<v ->I'm sorry, I don't think I put 'em in my brief here.</v>

725
00:29:57.600 --> 00:29:59.190
I have case cites for you if that's-

726
00:29:59.190 --> 00:30:00.090
<v J. Kafker>Yeah, that would be useful</v>

727
00:30:00.090 --> 00:30:01.653
if you got a case cite for us.

728
00:30:05.040 --> 00:30:06.060
<v J. Gaziano>You could submit a letter</v>

729
00:30:06.060 --> 00:30:08.670
if you haven't done it after argument.

730
00:30:08.670 --> 00:30:10.583
<v Atty. Monson>Will do, thank you, Your Honor.</v>

731
00:30:11.430 --> 00:30:15.303
But in any event, the question is whether,

732
00:30:16.393 --> 00:30:18.360
and it goes back to the policies as well,

733
00:30:18.360 --> 00:30:20.370
whether something is inherently unknowable,

734
00:30:20.370 --> 00:30:21.450
if it's out there in the world,

735
00:30:21.450 --> 00:30:24.090
just like a newspaper article, even if it's difficult

736
00:30:24.090 --> 00:30:26.550
to search for, even in Flynn, it would've been difficult

737
00:30:26.550 --> 00:30:30.510
for Flynn to have searched through every periodical for,

738
00:30:30.510 --> 00:30:33.420
you know, say, the 12 months period around the incident,

739
00:30:33.420 --> 00:30:35.463
read every edition of every periodical.

740
00:30:36.510 --> 00:30:37.890
It didn't matter.

741
00:30:37.890 --> 00:30:40.440
What mattered was that it was publicly available

742
00:30:40.440 --> 00:30:41.273
and he could have found it.

743
00:30:41.273 --> 00:30:44.400
It wasn't incapable of detection, and that's the point

744
00:30:44.400 --> 00:30:46.140
that I think we drive home on our brief is

745
00:30:46.140 --> 00:30:48.370
that it's not so much what they knew

746
00:30:49.847 --> 00:30:51.660
or how much effort it would've been to find it,

747
00:30:51.660 --> 00:30:53.340
but whether it was publicly available.

748
00:30:53.340 --> 00:30:56.700
<v ->But we can't hold individual humans responsible</v>

749
00:30:56.700 --> 00:30:58.290
for knowing the entire internet,

750
00:30:58.290 --> 00:31:00.270
and particularly the entire internet

751
00:31:00.270 --> 00:31:02.640
that will not come up in a Google search,

752
00:31:02.640 --> 00:31:03.900
which I think we can assume

753
00:31:03.900 --> 00:31:05.730
people can do Google searches, right?

754
00:31:05.730 --> 00:31:09.870
So how do we draw the line between the world

755
00:31:09.870 --> 00:31:13.260
of Gloucester, Massachusetts and the entire world?

756
00:31:13.260 --> 00:31:14.093
<v ->Very good question, Your Honor.</v>

757
00:31:14.093 --> 00:31:18.756
I think it's how widely available the website is.

758
00:31:18.756 --> 00:31:21.063
Facebook is widely available and publicly available,

759
00:31:21.063 --> 00:31:23.100
and known to these plaintiffs.

760
00:31:23.100 --> 00:31:25.440
This isn't a website that's from a foreign country

761
00:31:25.440 --> 00:31:28.953
that's obscure on the black web or dark web.

762
00:31:30.780 --> 00:31:34.260
It's not hidden at all, it's not behind a firewall.

763
00:31:34.260 --> 00:31:36.480
It's not behind any type of-

764
00:31:36.480 --> 00:31:38.160
<v ->I just don't know how that could be</v>

765
00:31:38.160 --> 00:31:41.070
the limiting principle, because, you know,

766
00:31:41.070 --> 00:31:43.620
without getting too deeply into the technology,

767
00:31:43.620 --> 00:31:45.030
we know that there are algorithms

768
00:31:45.030 --> 00:31:48.210
that are going to do things that are local to you,

769
00:31:48.210 --> 00:31:51.551
and Facebook is one of the largest social media platforms

770
00:31:51.551 --> 00:31:54.750
that we have in the world, and so the idea

771
00:31:54.750 --> 00:31:57.840
that you could be sitting someplace in California

772
00:31:57.840 --> 00:32:02.720
and it would aggregate Facebook accounts in everywhere,

773
00:32:04.290 --> 00:32:06.270
I mean, it presumes something

774
00:32:06.270 --> 00:32:09.090
that I don't know how we're gonna write that rule,

775
00:32:09.090 --> 00:32:12.240
where it's not publicly available in the sense

776
00:32:12.240 --> 00:32:14.850
of you can't do a Google search on it.

777
00:32:14.850 --> 00:32:19.850
There is this closed ecosystem of Facebook, that even that

778
00:32:20.250 --> 00:32:24.330
as a subset of the internet is still incredibly vast.

779
00:32:24.330 --> 00:32:28.830
And now plaintiffs now have to have to be tasked

780
00:32:28.830 --> 00:32:32.010
with essentially constructive knowledge

781
00:32:32.010 --> 00:32:35.370
of the entire Facebook ecosystem.

782
00:32:35.370 --> 00:32:38.490
How is that going to really work?

783
00:32:38.490 --> 00:32:41.970
I mean, again, you say that it's analogous to this case

784
00:32:41.970 --> 00:32:43.980
where we're talking about the newspaper,

785
00:32:43.980 --> 00:32:47.550
but how are you supposed to have constructive knowledge

786
00:32:47.550 --> 00:32:51.660
of what goes on from someone in California

787
00:32:51.660 --> 00:32:56.220
to what some local Facebook page is doing in Maine?

788
00:32:56.220 --> 00:33:00.090
How are you supposed to, how are we gonna say that?

789
00:33:00.090 --> 00:33:02.820
Help us say it, 'cause we've gotta answer this question.

790
00:33:02.820 --> 00:33:05.520
So tell us how we would respond

791
00:33:05.520 --> 00:33:08.053
to the district court judge in this way.

792
00:33:08.053 --> 00:33:10.230
<v ->I'd say it goes back to the policies</v>

793
00:33:10.230 --> 00:33:12.030
behind the statute of limitations, Your Honor,

794
00:33:12.030 --> 00:33:13.770
and that at some point,

795
00:33:13.770 --> 00:33:15.990
we have to draw a line where litigation has to end.

796
00:33:15.990 --> 00:33:17.340
<v ->Right, but the problem with that is</v>

797
00:33:17.340 --> 00:33:19.980
that there's exception under the discovery rule,

798
00:33:19.980 --> 00:33:22.980
and so what we're trying to do is balance the reasonableness

799
00:33:22.980 --> 00:33:25.980
of both enforcing a statute of limitation

800
00:33:25.980 --> 00:33:27.870
and not tagging people with knowledge

801
00:33:27.870 --> 00:33:30.990
that's unreasonable for them to have had.

802
00:33:30.990 --> 00:33:33.150
<v ->And Your Honor, the legislature has,</v>

803
00:33:33.150 --> 00:33:33.983
and as I mentioned in my brief,

804
00:33:33.983 --> 00:33:35.927
the legislature has consistently demonstrated

805
00:33:35.927 --> 00:33:38.250
its ability to craft statute of limitations

806
00:33:38.250 --> 00:33:42.180
that take out the inherently unknowable part

807
00:33:42.180 --> 00:33:45.219
of the discovery rule when they see fit, and that's the-

808
00:33:45.219 --> 00:33:47.114
<v J. Wendlandt>Right, I've got those.</v>

809
00:33:47.114 --> 00:33:52.020
<v ->Not not only the crimes or offenses against minors</v>

810
00:33:52.020 --> 00:33:52.920
that we cite in our brief,

811
00:33:52.920 --> 00:33:56.460
but also when there is fraudulent concealment,

812
00:33:56.460 --> 00:34:00.722
that statute of limitations, which is Mass general law 260.

813
00:34:00.722 --> 00:34:02.940
<v ->Have you thought about the trademark analogy here?</v>

814
00:34:02.940 --> 00:34:04.830
So if I have a trademark,

815
00:34:04.830 --> 00:34:07.800
I need to go out there and police it, right?

816
00:34:07.800 --> 00:34:12.210
And so I do hire attorneys to constantly search the web,

817
00:34:12.210 --> 00:34:14.682
the social media aspects,

818
00:34:14.682 --> 00:34:17.940
and make sure that others are not using my mark,

819
00:34:17.940 --> 00:34:21.570
because if I don't do that, I will dilute my mark.

820
00:34:21.570 --> 00:34:26.570
Have you at all discussed or thought about the analogy

821
00:34:26.810 --> 00:34:28.920
of that in this context?

822
00:34:28.920 --> 00:34:30.324
<v ->It's not discussed in our brief, Your Honor,</v>

823
00:34:30.324 --> 00:34:32.310
but I think you're on a very strong footing there

824
00:34:32.310 --> 00:34:35.220
that there is precedent under the trademark side

825
00:34:35.220 --> 00:34:37.980
for such policing of images, especially when they're known

826
00:34:37.980 --> 00:34:40.590
to be used as they are in the plaintiff's case,

827
00:34:40.590 --> 00:34:42.021
as exemplified by that-

828
00:34:42.021 --> 00:34:43.530
<v ->And how does that inform our analysis</v>

829
00:34:43.530 --> 00:34:46.770
of what is reasonable in this space,

830
00:34:46.770 --> 00:34:51.120
where the plaintiffs are models who know

831
00:34:51.120 --> 00:34:56.070
that their images have been misappropriated in this way?

832
00:34:56.070 --> 00:34:57.690
<v ->I think once that knowledge is out</v>

833
00:34:57.690 --> 00:35:00.450
and that it's clear to them

834
00:35:00.450 --> 00:35:02.160
that they need to start that policing,

835
00:35:02.160 --> 00:35:04.087
that's enough to at least trigger,

836
00:35:04.087 --> 00:35:06.270
if we're talking about a triggering event,

837
00:35:06.270 --> 00:35:08.340
that's enough to trigger them to start policing

838
00:35:08.340 --> 00:35:10.320
for their images as they do in trademark cases.

839
00:35:10.320 --> 00:35:13.470
<v ->And so what we would need to do is find out the facts,</v>

840
00:35:13.470 --> 00:35:15.900
as Justice Gaziano was alluding to,

841
00:35:15.900 --> 00:35:19.260
as to what tools were available reasonably

842
00:35:19.260 --> 00:35:21.390
to these particular plaintiffs.

843
00:35:21.390 --> 00:35:23.310
<v ->I'm not so sure that you'd need any more facts</v>

844
00:35:23.310 --> 00:35:25.110
than when they started filing the lawsuits,

845
00:35:25.110 --> 00:35:26.670
'cause when they started filing the lawsuits,

846
00:35:26.670 --> 00:35:29.137
they started clearly having attorneys who found these images

847
00:35:29.137 --> 00:35:32.610
and were able to do this type of work.

848
00:35:32.610 --> 00:35:35.910
So I would argue that that's the appropriate marker

849
00:35:35.910 --> 00:35:37.890
to go by under that analogy.

850
00:35:37.890 --> 00:35:40.320
I also wanted to, and I noticed my time is almost up here

851
00:35:40.320 --> 00:35:43.203
or is up here, but it's also important the burden here,

852
00:35:43.203 --> 00:35:46.500
that the burden is on the party claiming the discovery rule

853
00:35:46.500 --> 00:35:50.850
to present the facts that the discovery rule applies,

854
00:35:50.850 --> 00:35:52.020
not the other party.

855
00:35:52.020 --> 00:35:54.180
And I think that's important to keep in mind

856
00:35:54.180 --> 00:35:58.080
when responding to the certified question here,

857
00:35:58.080 --> 00:36:00.540
because of the plaintiffs are the ones

858
00:36:00.540 --> 00:36:02.220
who know how this was found.

859
00:36:02.220 --> 00:36:03.900
They know how these images were found.

860
00:36:03.900 --> 00:36:05.910
They have it through their counsel.

861
00:36:05.910 --> 00:36:07.380
Two of the plaintiffs in this case have testified

862
00:36:07.380 --> 00:36:08.880
they can't remember when they found it

863
00:36:08.880 --> 00:36:10.240
or when they first became aware of it.

864
00:36:10.240 --> 00:36:12.630
<v ->Well, your client's no better off.</v>

865
00:36:12.630 --> 00:36:15.554
I mean, reading your clients' deposition transcript,

866
00:36:15.554 --> 00:36:19.260
your client knows nothing about nothing about nothing.

867
00:36:19.260 --> 00:36:20.093
<v Atty. Monson>Exactly, Your Honor.</v>

868
00:36:20.093 --> 00:36:22.110
<v ->So you know, and who put it up?</v>

869
00:36:22.110 --> 00:36:22.950
I don't know.

870
00:36:22.950 --> 00:36:24.570
Who's responsible for taking it down?

871
00:36:24.570 --> 00:36:25.470
I don't know.

872
00:36:25.470 --> 00:36:27.803
I mean, aren't you asking

873
00:36:27.803 --> 00:36:30.900
for having your cake and eating it too?

874
00:36:30.900 --> 00:36:33.210
<v ->I would disagree with you, Your Honor,</v>

875
00:36:33.210 --> 00:36:35.190
and state that this goes exactly to the heart

876
00:36:35.190 --> 00:36:36.480
of why we have statute of limitations,

877
00:36:36.480 --> 00:36:37.530
'cause the current owner,

878
00:36:37.530 --> 00:36:39.120
my client right now was not the owner

879
00:36:39.120 --> 00:36:41.130
at the time that these images were posted.

880
00:36:41.130 --> 00:36:43.050
It was owned by his father who managed all that.

881
00:36:43.050 --> 00:36:45.090
He had nothing to do with the social media

882
00:36:45.090 --> 00:36:46.340
and whatnot at that time.

883
00:36:47.340 --> 00:36:48.750
He doesn't know who posted them.

884
00:36:48.750 --> 00:36:49.800
He doesn't know when they were posted.

885
00:36:49.800 --> 00:36:51.360
He doesn't know any, as you've read the deposition,

886
00:36:51.360 --> 00:36:53.070
he doesn't know anything about this,

887
00:36:53.070 --> 00:36:54.027
and that's why we have the statute of limitation.

888
00:36:54.027 --> 00:36:56.850
<v ->But he continues to benefit from the use of the images,</v>

889
00:36:56.850 --> 00:37:00.030
and so I'm assuming that the knowledge

890
00:37:00.030 --> 00:37:04.560
of the father is imputed to this particular defendant.

891
00:37:04.560 --> 00:37:07.080
<v ->I would respectfully disagree with you there, Your Honor,</v>

892
00:37:07.080 --> 00:37:09.300
and say that these images are for specific events,

893
00:37:09.300 --> 00:37:11.670
Monday night football games where the Patriots are playing,

894
00:37:11.670 --> 00:37:13.581
I forget who they're playing in one case

895
00:37:13.581 --> 00:37:16.265
that occurred back in 2013,

896
00:37:16.265 --> 00:37:18.870
and now are buried in the Facebook logs.

897
00:37:18.870 --> 00:37:20.100
<v ->And I'm assuming there's some sort</v>

898
00:37:20.100 --> 00:37:21.536
of indemnity with the father?

899
00:37:21.536 --> 00:37:23.070
<v J. Georges>His father passed.</v>

900
00:37:23.070 --> 00:37:24.750
<v Atty. Monson>His father passed, Your Honor, there's no-</v>

901
00:37:24.750 --> 00:37:27.300
<v ->But again, you're over your time,</v>

902
00:37:27.300 --> 00:37:29.880
but I don't know that that necessarily helps you

903
00:37:29.880 --> 00:37:33.090
with what we have in the record, but thank you.

904
00:37:33.090 --> 00:37:35.250
<v ->And I would like the letter on the cases</v>

905
00:37:35.250 --> 00:37:38.673
that you're talking about, and a response too.

906
00:37:39.750 --> 00:37:42.900
If he submits cases, it'd be useful to hear from you

907
00:37:42.900 --> 00:37:45.930
on whether there are cases going the other way.

908
00:37:45.930 --> 00:37:47.573
<v Atty. Monson>Absolutely, Your Honor, thank you.</v>

909
00:37:48.510 --> 00:37:50.237
<v ->If you can get it in within a week.</v>

910
00:37:50.237 --> 00:37:52.003
<v Atty. Monson>Yes, Your Honor.</v>