On January 21, 2014, Seattle Attorney Timothy B. McCormack of McCormack Legal sent both ELI and Copyright-Trolls.com a copy of his extortion letter claiming Copyright Infringement, Defamation, and Harassment.
McCormack lntellectual Property Law
Business Law PS
617 Lee Street
Seattle, WA 98109 USA
p.206.381.8888 / f.206.381.1988
Timothy B. McCormack
Attorney at Law
January 21, 2014
Via Federal Express (Adult Signature Required) & U.S. Mail
Mr. Matthew Chan
RE: NOTICE OF COPYRIGHT INFRINGEMENT & UNAUTHORIZED USE OF TIMOTHY MCCORMACK’S IMAGE
Dear Mr. Chan,
It has come to our attention that you have been using a photograph titled “TimothyMcCormack Headshot” owned by McCormack Intellectual Property Law PS (hereinafter “Photograph”). A copy is enclosed. The website www.extortionletterinfo.com has not licensed the use of the Photograph. It is our understanding that you administer this website.
The Photograph is copyrighted. You have no right to copy or display the Photograph. We demand that you immediately CEASE AND DESIST use and display of the Photograph from any and all of your websites and other materials. The author of the Photograph, McCormack Intellectual Property Law PS, is located in Seattle, Washington and is directly affected by your unlicensed display of the Photograph.
YOU HAVE COMMITTED COPYRIGHT INFRINGEMENT
To establish a claim of copyright infringement, our law firm only needs to show that you used, copied or displayed the Photograph without authorization. This letter is notification of the pending copyright infringement claim. This means that you and your company, officers, and other individuals involved in the infringement can be liable for damages. Any further display of the Photograph will be considered willful infringement and give rise to statutory damages and personal jurisdiction in Washington State.
Personal liability extends to the people running the company based on contributory and vicarious liability. The Photograph is specifically protected under the United States copyright statute. See, e.g., 17 U.S.C. 101 et seq. (2007). The damages offered by the copyright statute for the type of infringing activities that you are engaging in range from $30,000 to $150,000 per infringement. 17 U.S.C. 504 (2005) (“award of statutory damages to a sum of not more than $ 150,000 [perinfringement]”).
DEFAMATION, HARASSMENT, & STATE LAW CLAIMS
In addition to the pending copyright infringement claim, the method of use of the Photograph is defamatory to Mr. McCormack’s reputation as a legal professional by the false references to turds, asses, and other derogatory terminology placed across the Photograph and portraying him in a false light. These false statements have been published to the world via the lnternet. This defamation has been purposefully directed at Washington State by the use of Search Engine Optimization (SEO) technology and based on the location of Mr. McCormack, his business, and damages. Such use is defamation per se whereby damages are presumed. See e.g Maison de France, Ltd. v. Mais Oui!, Inc.,126 Wn. App. 34 (Div. 1, 2005). Such use may also be considered harassment under both common law and the Communications Decency Act. 47 U.S.C. 230; RCW 10.14.020 et seq.
JURISDICTION EXTENDED FOR WILLFUL COPYRIGHT INFRINGEMENT, DEFAMATION, HARASSMENT, & STATE LAW CLAIMS
Your actions directed toward a Washington entity give rise to jurisdiction in the state of Washington because the damages are felt in that forum state. Calder v. Jones, 465 U.S. 783 (1984). The United States Court of Appeals for the Ninth Circuit has also held that willful copyright infringement creates personal jurisdiction in the forum state. Washington Shoe Company v. A-Z Sporting Goods, Inc., 704 F .3d 668 (9th Cir. 2012). This means that an out-of-state willful copyright infringer cannot escape litigation in Washington State by claiming lack of personal jurisdiction. A Washington State copyright holder can sue the willful copyright infringer in Washington State even if the infringer never stepped foot in the State of Washington. Once judgment is obtained in Washington, the judgment may be taken to the infringer’s home state to be leveraged against his assets in his home state.
Use of the Photograph without a valid license is considered copyright infringement in violation of the U.S. Copyright Act. Within 14 days of the date of this notice please take the following action: immediately cease and desist use of the Photograph and remove it from your websites.
In order to resolve this matter, provide our law firm with the following:
1. Signed confirmation that you have removed all copies of the Photograph.
2. Web analytics to the websites you administer (or administered) for the last three years, including number of visitors to the website per month for the last three years.
3. All web-advertising money received through the websites for the last three years.
4. Receipts of all payments received through the websites for the last three years.
After we have received the above information and undertaking, we will then be able to discuss resolution of this matter. This letter is written without prejudice to McCormack lntellectual Property Law PS and Timothy B. McCormack’s legal rights and remedies, all of which are expressly reserved. Let me know your decision within 14 days of receiving this letter.
Timothy B. McCormack
cc: Oscar Michelen Enclosure
Timothy McCormack Headshot
This letter has never been seen before. We believe that this letter was specifically written for both ELI and Copyright-Trolls.com in McCormack’s effort to remove meme’s containing an image of his head shot. The image in question appears to have been registered with the U.S. Copyright Office on January 4, 2013 although he did not provide either ELI or Copyright-Trolls.com a copy of his copyright registration.
The image McCormack attempts to control and protect can be found here on his own website.
Either carelessly or intentionally, the screenshots he sent as “evidence” of alleged copyright infringement, defamation, and harassment comes from a series of screenshots from July 26, 2012, a time BEFORE he ever registered his image. The remnants from that 2012 discussion thread still exists today.
This thread has been locked to both preserve its current state and to prevent additional posts to that thread. Additionally, screenshots from that thread were captured on January 28, 2014 to show that McCormack has entirely used outdated information to accuse, discredit, and attack ELI.
To the best of our knowledge, ELI has never hosted any user-submitted images of anyone much less a meme of McCormack. All memes were created and hosted elsewhere from ELI. Even if ELI did host those memes, most people can see that the memes are nowhere close to meeting the standard of defamation. The image was being used for negative commentary and parody of his business practices. He accuses me and ELI of “harassment” by virtue of owning and hosting the ELI Forums. He was previously schooled on Section 230 of the CDA but he has conveniently ignored it for his own selfish purposes.
To prevent confusion and misunderstandings, the forum ability to automatically display images within forum posts were disabled in March 2013. When that occurred, any image (including memes) would reveal and only display the underlying hyperlink.
We feel McCormack’s letter sent to ELI is meant to intimidate me into complying to his demands. The problem is there is NOTHING to comply. Most of the memes were killed by quickmeme.com at the source. And the few that might still be live sits on a web host which we have no relationship or control over. However, recent clicks have shown that nearly all are “dead”.
And given the fact that I have been in self-imposed exile for nearly a year, how exactly would I be harassing or defaming McCormack? Using old dead posts that I never posted to begin with? And even if I had posted them, those memes qualify as fair use as there is commentary surrounding the image. Additionally, none of the text comes remotely close to meeting the standard of defamation and harassment.
Quite frankly, it is ok if he threatens and harasses others to get the money for himself and Getty Images but he is mighty sensitive to an negative or parodic commentary about him.
My formal reply to Attorney Timothy B. McCormack of McCormack Intellectual Property Law firm is forthcoming.
ELI Legal Advisor Oscar Michelen wrote a response to Timothy B. McCormack on behalf of Copyright-Trolls.com but also included comments as it relates to ELI. This response will be posted soon.