ExtortionLetterInfo Forums
ELI Forums => Higbee Associates Letter & Lawsuits Forum => Topic started by: notarget on November 15, 2017, 07:01:13 PM
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I originally posted here:
http://www.extortionletterinfo.com/forum/legal-controversies-forum/got-an-extortion-letter-from-higbee-asking-for-$15k/msg21589/ (http://www.extortionletterinfo.com/forum/legal-controversies-forum/got-an-extortion-letter-from-higbee-asking-for-$15k/msg21589/)
But this forum has lots more traffic so I thought I'd continue here.
I've gotten two more emails from Higbee, three and seven days after the first one.
Here's letter #2.
Subject: Ignoring this Problem Will Only Make It Worse
This is a follow-up to the letter and email that we sent you regarding the unauthorized use of copyrighted materials owned by our client, Michael Grecco. We want to work with you to resolve this in an efficient and fair manner.
Ignoring this problem will likely result in a dramatic increase in costs and stress. Please call us or go to our secure online Resolution Center and either make a payment or let us know why you believe you do not owe money for using our client’s work.
And, here is #3.
Subject: There is Still Time to Save Money & Reduce Stress
We mailed you a letter and sent two follow-up emails about the unauthorized use of our client’s copyrighted materials. It is our client’s hope that this matter could be resolved without incurring more costs than his have already incurred. Yet, we have not heard from you.
US Copyright Law provides strong protection for owners of copyrighted material. If he is forced to file a lawsuit to resolve this matter, you could be liable for damages that are many times more than what my client is now requiring, as well as his attorney’s fees -- not to mention your own attorney’s fees. It simply makes no sense to ignore this issue, especially, when our client is willing to work with you on resolving it.
If we do not hear from you within about one week, we will recommend that our client consider simply filing a lawsuit.
Please call us or go to our secure online resolution center and either make a payment or let us know why you believe you do not owe money for using our client’s work
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I've done some research and here are the issues I see with Higbee's claim.
1. I have an <img src="xxxxxxxxx"> link so I'm not even hosting the image.
2. His extortion letter acknowledges that I'm not hosting the image since the infringing file location is listed as being on a Barnes & Noble server. Does Barnes & Noble get the rights to use every book cover image they host and display?
3. The image in question is the cover of a book referenced from a blog article about said book. Does the publisher (who I imagine is happy that I'm promoting the book) own the rights to use the image or does Mr. Grecco?
4. The photographer's image is only part of the book cover. I'm not sure if that negates his claim or not.
5. There are literally millions of hits for that image in a Google image search.
6. It seems to be a bit of a gray area but using an image of a book cover in a book review strikes me as fair use, especially since my blog is a small one that doesn't make any money.
I'm not particularly worried about Higbee taking me to court except for the nuisance factor. Plus, there's no money in the corporation running the blog for him to get.
I've ignored Higbee so far. I'm posting info here anonymously in the hope that others who get the same extortion letters don't just roll over and pay. There's strength in numbers!
Thoughts on how I should proceed? Thanks.
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p.s. Here's something I'm scratching my head about. Higbee brags about having an A+ rating with the BBB. And, he's right as you can see here: https://www.bbb.org/sdoc/business-reviews/lawyers/higbee-associates-in-santa-ana-ca-100071532
But, he's got 3 positive reviews, 1 neutral review, and 4 negative reviews. In what universe does half the reviews being negative earn the business an A+ rating? The BBB site has an explanation of how they determine the rating which makes no sense to me. And, yes, I do get that resolving complaints improves one's score but there are some supposedly resolved complaints that haven't been confirmed by the customer.
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The e-mails sound like an autoresponder system he must have setup recently, I haven't heard of those before. A quick Pacer search did show some cases with a Michael Grecco as plaintiff in NY and MA are the only places I believe and those were cases with a different firm than Higbee. I'd look at the case details and maybe take it a little more seriously than some pure troll cases depending on the details.
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My comments below in bold
I've done some research and here are the issues I see with Higbee's claim.
1. I have an <img src="xxxxxxxxx"> link so I'm not even hosting the image.
Therefore no infringement occured, see perfect10 v google
2. His extortion letter acknowledges that I'm not hosting the image since the infringing file location is listed as being on a Barnes & Noble server. Does Barnes & Noble get the rights to use every book cover image they host and display?
the book publisher probably has a license to use the image, the license is probably non-transferrable to B&N ( as most licenses are), but i'd be willing to bet the license is "rights managed" allowing B&N to use the image
3. The image in question is the cover of a book referenced from a blog article about said book. Does the publisher (who I imagine is happy that I'm promoting the book) own the rights to use the image or does Mr. Grecco?
Grecco owns the rights to the image itself, the publisher has a license to use said image
4. The photographer's image is only part of the book cover. I'm not sure if that negates his claim or not.
it wouldn't negate the claim, IF he had one, he DOESN"T
5. There are literally millions of hits for that image in a Google image search.
irrelevant in the grand scheme of things, a portion of those "hits" may be from legit license holders, some are likely linked form B&N like yours, and some are probably copies.. Mathew Higbee is NOT a copyright attorney,
he's an ambulance chaser trying to make a quick buck, by chasing low hanging fruit.
6. It seems to be a bit of a gray area but using an image of a book cover in a book review strikes me as fair use, especially since my blog is a small one that doesn't make any money.
There are 4 criteria to meet in order to obtain fair use status, this is one of them, IMHO you also meet the 3 others, which just goes to show how dumb Higbee is.. If it were me, I would be publicizing his letter and screaming from the hill top that he is an idiot and a douche-bag.
I'm not particularly worried about Higbee taking me to court except for the nuisance factor. Plus, there's no money in the corporation running the blog for him to get.
I highly doubt he or Grecco will sue over this, and if he does, I hope you consider counter-suing, to turn the tables on him, he would have a tough road ahead.
Thoughts on how I should proceed? Thanks.
This is completely up to you, i know if it were me, I would respond, and tell higbee ( without laying out my defense, let him figure that out on his own, or let him take a chance.) that he can go pound sand, and this if he continues to pursue this, you will seek legal action, in the meantime I would file complaints with the bar associations and attorney general of california, and you home states AG, to put him on notice.
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p.s. Here's something I'm scratching my head about. Higbee brags about having an A+ rating with the BBB. And, he's right as you can see here: https://www.bbb.org/sdoc/business-reviews/lawyers/higbee-associates-in-santa-ana-ca-100071532
But, he's got 3 positive reviews, 1 neutral review, and 4 negative reviews. In what universe does half the reviews being negative earn the business an A+ rating? The BBB site has an explanation of how they determine the rating which makes no sense to me. And, yes, I do get that resolving complaints improves one's score but there are some supposedly resolved complaints that haven't been confirmed by the customer.
The BBB is useless, their "ratings" mean nothing, there are a for profit business trying to sell memberships to advertise peoples businesses, who gives a rat ass how they calculate anything.. and BTW I've had clients who posted the BBB logo on their sites linking to their profile, and they have gotten letters from the BBB demanding they "become members" and to remove the logo unless they do so.
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Robert,
Thanks for the engagement. At this point I'm going to not respond and I'll continue to post the letters I receive here. That way, if there are folks who are afraid of Higbee, they can get a reality check here.
I assume that, if someday he decides to have Grecco actually sue me, that I will have ample time to respond.
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Here's email #4:
Subject: Case Manager Introduction
My name is Michael. I am a Claim Resolution Specialist at the Law Firm of Higbee & Associates. My job is to help resolve copyright claims without them having to go to court. I will be calling you soon to talk about a letter the law firm sent you involving a potential copyright claim by Michael Grecco Productions, Inc. If you have not received it, I can provide you an electronic copy.
I am not one of the attorneys. I have about 14 days to try and resolve this claim before the claim gets escalated to the attorneys. The claim gets more stressful and expensive when it gets moved to the attorneys— my goals is to not let that happen to you.
Here are a couple of things that can help solve this potential problem:
First, if you have a license for the image that was purchased prior to the image being used, please let me know and provide it to me via email.
Second, most business liability insurance policies covers this type of claim. Please contact your insurance provider. If they say they do not cover this type of claim, I will be glad to have one of our attorneys review your policy to see if they are wrongfully denying you coverage. It is in both of our interests to make sure your insurance provider is not denying you coverage that you paid for.
If you did not have a license or proper business insurance, we can talk about how to come to a reasonable resolution. I will call you soon.
In the meantime, feel free to email me or call me on my direct line at 714-617-8363.
Thank you,
Michael Adela
Claims Resolution Specialist
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If and when this idiot calls, make sure to record it! California is a 2 party consent state, but that doesn't really matter much, you can always announce you are recording, and chances are he'll hang up.. the one good thing about this situation, is the time and energy they are wasting.. If it were me I would welcome this to get escalated to an attorney, so I could string them along, and suck up as much of their time as possible...I'm nice like that!
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I agree with Robert. I am not a big fan of the BBB. They have done a good job promoting themselves and they have a lot of businesses suckered. They are only good for very limited purposes.
I have gone through them a couple of times just to see how they worked. They are generally not consumer-friendly. I have learned to handle situations without their help.
Their website, however, is good to see complaints that have been filed. Perhaps, the BBB is learning from Yelp that if you want your ratings to mean something, you have to be impartial otherwise people like Robert and me will tell others that their "A" ratings might actually be meaningless.
People who really want to get the lowdown on a business have to go to multiple review sources look at the aggregate and not depend on any single source.
I know plenty of businesses who don't use the BBB logo but they still get many good reviews because they know how to link and refer people to review/feedback sources.
The BBB is useless, their "ratings" mean nothing, there are a for profit business trying to sell memberships to advertise peoples businesses, who gives a rat ass how they calculate anything.. and BTW I've had clients who posted the BBB logo on their sites linking to their profile, and they have gotten letters from the BBB demanding they "become members" and to remove the logo unless they do so.
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Of course, they will not tell you that ANY claims is a strike on your account, will likely be reported to LexisNexis, and subject to premium increases. People who have too many claims (across multiple lines like auto, property, and business) can find themselves with higher premiums or even denied coverage.
I know one guy who cannot easily get business insurance because he had too many claims over the years and he is being denied as a customer.
People who want to check their credit reports as it relates to insurance should pull their file from LexisNexis.
Most people know about the big 3 credit agencies: Equifax, Experian, and Transunion. Most people don't know that many insurance companies go to LexisNexis to check up on someone's insurance history.
I recently pulled my LexisNexis report, it was a thick pamphlet due to all the policies opened and closed over the years as well as my many moves over 25 years, and there are Lexis entries that go back 20 years! And there were claim hits I totally forgot about.
Second, most business liability insurance policies covers this type of claim. Please contact your insurance provider. If they say they do not cover this type of claim, I will be glad to have one of our attorneys review your policy to see if they are wrongfully denying you coverage. It is in both of our interests to make sure your insurance provider is not denying you coverage that you paid for.
If you did not have a license or proper business insurance, we can talk about how to come to a reasonable resolution. I will call you soon.
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One thing I'm starting to wonder about is whether Higbee will continue to harass me for the next three years. I don't believe he has a case, I have ZERO interest in giving him any money, I'm not afraid, and I need to start thinking about how to make him go away. And, I'm in no rush to take any action.
Sure, I can screen calls and, if I accidentally answer one of his calls, I'll tell his rep that I'm recording the call. I'll put him on speaker phone and record via my cell phone's recording app. (I'm in a one-party consent state but he's in CA which is a two-party consent state so I'll let him know I'm recording.) If he somehow doesn't hang up I'll listen and not offer up any information.
Thoughts on how I might proceed to make him go away? Yes, I might pay for that 30-minute phone call if he annoys me enough.
Thanks!
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You are making this too complicated and being too polite. No one is obligated to take anyone's call even if you accidentally pick up the phone. You just hang up immediately and block that number. I will not hesitate to hang up on anyone if it is an unwanted call.
And while I am not encouraging anyone to commit illegal acts, but people do it everyday
If you took a pen without permission even unintentionally, you broke the law. If you took a washcloth from a hotel even unintentionally, you broke the law. If you drive over the speed limit, you broke the law. Same with running a red light and not coming to a full stop at a stop sign. You are breaking the law. You engage in certain sexual acts with a consenting adult in the privacy of your own home, in some states, you are breaking the law by performing those specific sexual acts. If someone (like a neighbor) besides a postal worker puts something inside your mailbox, they broke the law.
My point is that recording a phone call for private use using a private app (even in a one-party consent state) is not something society at large or local police are interested in prosecuting. Those recording laws were intended to be used for other purposes, not someone who is trying to defend themselves against unwanted and unruly calls.
And who is going to report you to the police for recording an unwanted phone call ? Higbee? They will sooner file a lawsuit and have you served than report you to the police for recording their phone call. The aren't interested in having you prosecuted. They just want your money. And the way to your money is through the civil process, not the criminal justice system. People really need to get grip on reality and think.
In any case, I have heard a few recorded Higbee voicemails submitted to me from victims. The voicemails are pretty tame and generally respectful and professional. Not much of a "gotcha".
And no one is required to "go away" unless you want to push the issue and deliver to them a cease-and-desist letter. But even if you did that, then what?
Focus on what you can do. You cannot stop them from sending 100 demand letters to you or make 100 attempts to make phone calls. But you can toss them and block the calls. If you must, you can even change your number.
Problem solved.
One thing I'm starting to wonder about is whether Higbee will continue to harass me for the next three years. I don't believe he has a case, I have ZERO interest in giving him any money, I'm not afraid, and I need to start thinking about how to make him go away. And, I'm in no rush to take any action.
Sure, I can screen calls and, if I accidentally answer one of his calls, I'll tell his rep that I'm recording the call. I'll put him on speaker phone and record via my cell phone's recording app. (I'm in a one-party consent state but he's in CA which is a two-party consent state so I'll let him know I'm recording.) If he somehow doesn't hang up I'll listen and not offer up any information.
Thoughts on how I might proceed to make him go away? Yes, I might pay for that 30-minute phone call if he annoys me enough.
Thanks!
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Matthew,
Thanks very much for the tough love and for the reality check. I really appreciate it. I sent a little cash your way. Have some drinks on me!
I've changed the voicemail greetings on my landline and cell phone to be the computer voice that reads my phone number. So, no identifying information. If Higbee doesn't engage in caller ID spoofing or call from a pile of numbers then I'll block his number. And, I'll add to this thread if anything of interest happens. And, yeah, I can switch to an unlisted number if I get tired of this.
Thanks again, Matthew.
Life goes on.
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Thoughts on how I might proceed to make him go away?
Thanks!
I can tell you what I would do in your shoes, it would take some additional time /effort, and there is naturally a risk factor involved, but it may work to make him go away..
1. File complaints with the CA state attorney General, as well as your states AG. He would need to use valuable time to respond to these complaints, which is bit of pay-back
2. File bar complaints with the CA Bar Asociation and if he is licensed to practice in your state, file with that Bar as well...again he would need to waste time to respond...more payback, and a showing you won;t easily be bent over.
3. Publicize his name, and those of the trolls under his employ on every online outlet that comes to mind...here, reddit, ripoff report, twitter, FB..not all publicity is good..
you need to harp on the fact that Higbee is not a copyright attorney, and harp on the fact that the image in question was linked, and never resided on your servers, therefore there was no infringement..
Just for good measure, when making your complaints I would demand a formal apology in writing from higbee, just to make him squirm, and fess up to being an asshat...not that he would do this, but when he doesn't it's one more thing you can publicize.. bottom line is , if he is going to pester you, you need to pester him more.
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If you want the info on filing Bar complaints in any of the states Higbee is licensed in, I compiled the info in this thread http://www.extortionletterinfo.com/forum/getty-images-letter-forum/if-you-want-to-file-a-complaint-against-higbee/
I especially think he is vulnerable with how they frame the request for copies of business insurance policies. The non-existence of such a policy would not wash away any ethics violation it represents.
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Robert and Icepick, you've convinced me to file a bunch of complaint letters. I have a couple of favors to ask.
1. Can you please point me to sample (and hopefully effective) complaint letters? I want to get a feel for the style of the letters.
2. Can you please give me some bullet items for points I want to cover in the letter? The most obvious one is that the two images were linked to and not hosted by my blog which he acknowledges in his extortion letter when he lists the infringing webpages (my blog) and the infringing file locations (Barnes and Noble). The second point is the concern you've raised re his conflict of interest. He represents photographer Michael Grecco and at the same time he is trying to give me advice re business insurance.
Also, I have to ask. What's the risk that going on the offense will increase the odds of his client taking this to court? Again, I don't believe Higbee has a case and I'm wondering if he might try to make a case that linked images are somehow an infringement. I'm willing to take that risk for two reasons: (1) Ignoring him for three years will be a drag. (2) I'd like to help others in the same boat who can follow my example but might otherwise roll over.
Icepick -- I'd be happy to send you a link to Higbee's initial letter if you like. I've posted the follow up emails on this thread already.
Oh, and I got a call from Michael Adela yesterday from Higbee's office. I let it go to voice mail. Michael sounds VERY young, VERY inexperienced, and NOT confident. He was very polite. I imagine he is one of their unpaid interns learning some lessons about our legal system.
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When I mentioned that Mr. Adela was an unpaid intern I was referring to this page:
https://www.higbeeassociates.com/interns/copyrights-internship/
"Copyright interns assist in handling cases prior to the commencement of litigation. This is an unpaid position that will provide a valuable opportunity for the student interested in a career in law to work with a fast paced national law firm."
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Greg troy is going to help you with tips/tricks and the "how to" on filing complaints.. way back when when we started doing this with getty he was the driving force, and getty now has literally 100's if not 1000's of complaint filed with the washington AG...Keep in mind the AG or Bar association may not take any action, but Highbee will need to use his time to respond.
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p.s. Here's something I'm scratching my head about. Higbee brags about having an A+ rating with the BBB. And, he's right as you can see here: https://www.bbb.org/sdoc/business-reviews/lawyers/higbee-associates-in-santa-ana-ca-100071532
But, he's got 3 positive reviews, 1 neutral review, and 4 negative reviews. In what universe does half the reviews being negative earn the business an A+ rating? The BBB site has an explanation of how they determine the rating which makes no sense to me. And, yes, I do get that resolving complaints improves one's score but there are some supposedly resolved complaints that haven't been confirmed by the customer.
In my dispute with Getty Images I ended up filing complaints with the Washington state Atty. Gen.'s office, the Washington Better Business Bureau, the Ohio State Atty. Gen.'s office, my Congressman, my Sen. and the FTC. As far as your question about the Better Business Bureau and how Higbee can maintain his rating with a number of complaints he has the BBB works like this. If a business can show that they have tried to resolve the complaint in good-faith and the customer is still not satisfied it will not count against the business. In my situation, my complaint with the BBB did not count against Getty Images because no product or service was purchased from Getty Images.
The complaints filed against Higbee did not count against his score. If they were all about complaint letter sent out new product or service was actually purchased which is all that the BBB really deals with.
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notarget,
I would be more than happy to assist you with the process of filing complaints against Higbee especially since you say he has acknowledged the fact that the image was hotlinked and did not reside on your server. I have had some experience with the complaint letter process and can share whatever information I have with you.
Higbee knows that hotlinking does not constitute infringement. In the case of Perfect10 vs Google along with several other cases Perfect10 filed the ruling clearly states that since the images do not reside on the defendants server no infringement has occurred.
https://www.scribd.com/lists/4468896/Perfect-10-v-Google
For your complaint letters I would start here with this link:
https://www.scribd.com/lists/3777301/Complaint-letters-filed-against-Getty-Images
These are copies of the complaints I filed in my own dispute with Getty Images. I filed complaints with the Washington state Atty. Gen.'s office, the Washington Better Business Bureau, my states Atty. Gen.'s office, my Congressman, Sen. in the FTC. The link contains copies of my letters, Getty's response to my complaint and then in every case I wrote a follow-up letter to the agency correcting Getty's errors, pointing out where they omitted responding as well as outright lies.
I had encouraged others who felt they were being unfairly treated by Getty Images to file complaints as well. The Atty. Gen.'s office started receiving so many complaints in such a short amount of time that Getty Images actually started mentioning me indirectly in their boilerplate responses to the Atty. Gen.'s office. They started saying that This letter writing campaign is misguided and misdirected.
Since Higbee is also an attorney I would recommend filing complaints with the Bar Association(s) he is registered with and I believe Robert has provided you a link with information on that.
If you would like I would be happy to review your letters and give you suggestions before you send them out. If you don't mind I would also like to report on Higbee and your story over on Copyright Anti-Bullying Act. I personally find disgraceful that Higbee is continuing to push this even after acknowledging the images hotlinked.
You can use this link to see examples of almost 200 other complaint letters filed with the Atty. Gen.'s office. You can click on each complaint number to view that complaint in detail.
https://www.scribd.com/doc/222235974/1-2-Index-of-Compaints
This should give you enough information to get started. Please let me know if I can be of further assistance and if you would mind if I reported on your story.
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Greg,
Thanks for your engagement. Perhaps "acknowledge" is not the right word. Higbee's letter lists infringing webpages and infringing file locations. So, his software knows that where an image is hosted may not be the same as the supposedly infringing site. I've had no contact with them other than their letters so he hasn't said "yeah, you're right, you're just hotlinking the image."
I've got other questions I'll post to you in private messages.
Thanks.
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Greg,
Thanks for your engagement. Perhaps "acknowledge" is not the right word. Higbee's letter lists infringing webpages and infringing file locations. So, his software knows that where an image is hosted may not be the same as the supposedly infringing site. I've had no contact with them other than their letters so he hasn't said "yeah, you're right, you're just hotlinking the image."
I've got other questions I'll post to you in private messages.
Thanks.
Thank you for the clarification, still that is the kind of sloppy "legal" work I would expect to see coming from Mr. McCormack's office back before he retired.
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Private message me through ELI if you would like any help with the bar complaints. Most of the states have a form which I linked on the post I made. They don't need an exhaustive narrative, just the key issues. If you cite the ethics rules for the state you are complaining in and add in the keywords conflict of interest and 'misrepresentation, deceptive' etc. you are probably giving the investigator a lot more of a starting point than 90% of other complaints they get. They usually take the ball and run with it, they just need the starting point from the complaint to know what they should be looking at.
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by the by, I was discussing with an attorney friend the whole method Higbee has been using to request the business insurance information like the way seen in this thread and 1) he agreed it is a big ethics complaint vulnerability 2) Higbee's main goal may be targeting businesses and getting the quick insurance payouts like personal injury lawyers do. Insurance payouts are lower hanging fruit for this guy than the usual defendants he goes after.
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It's been two weeks and I've not heard a peep from Higbee or his staff. I'd like to believe that they have figured out that I'm posting here and don't want to make waves. It might not be that hard to figure out who I am given the hints available in my posts. Or, maybe I'm dreaming.
My current thinking, if they contact me again, is to email Mr. Higbee, Mr. Adela (the intern), and Mr. Grecco (the photographer client), and make these points.
- The images are hotlinked. You yourself make the distinction in your initial letter between the "infringing" webpage and the "infringing" file location. So, there's no case here.
- Your offer to have your lawyers advise me re business insurance matters is an ethical violation given that you represent Mr. Grecco.
- Does Mr. Grecco really want to pay to file a lawsuit given that there's no case and waste a judge's time explaining why your law firm is going after a blogger with a site that makes no money for hotlinking two images of the cover of a book associated with a review of that book?
- I've spent a considerable amount of time researching this situation, posting about it at extortionletterinfo.com, and discussing my options privately with a couple of the senior members of the community.
- If I hear from you or your office again (other than to tell me you've dropped your campaign against me) I will immediately file letters of complaint with the Bar Associations and Attorney General offices in my state and in all of the states in which you practice. And, that will be just my first action.
Thoughts?
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@notarget
I would say contacting Higbee is the best way for him to know that he got you nervous and would only encourage him to really mess with you more.
Why put your self in that position?
You're not dealing with an honorable person, he's a bottom feeder looking for the quick cash.
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I agree with KK, if you are going to contact him at all do it AFTER filing complaints, the complaint will send a clear message you are not to be screwed with... If I were you I would
1. file complaints
2. tell Higbee that you filed complaints and that he has no case.
3. demand that he send you hard copies of documentation, that he is no longer pursuing this matter. ( waste as much of his time as possible)
3. demand an apology from this asshat for not doing his homework prior to sending a poorly written cheesey demand letter.
3. if Higbee was dumb enough ( which he probably is) and files suit, promptly file a counter suit against him and his client.
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I agree with Robert's plan and order in which to do it.
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I've had limited experience with Higbee's operation but from what I've seen, it is all automated in the early stages. The best analogy is he is hiring bill collector types to keep making phone calls and reply to e-mails. Anything that requires thought outside of a script is probably going to be ignored. From what I have seen in some of his court filings I'm not sure they deviate from scripts even after filing cases. I have not seen Higbee or any of his staff make any accurate substantive rebuttals to issues others have raised so I would not expect much. Each case has a dollar value to them, the only way to get them to back off voluntarily is by finding that dollar value (which could be 10% of their initial ask in some cases).
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Higbee uses the court system to extract settlements. That's it! If he files one, the world won't end. Answer it, push back, show no fear whatsoever. He wants the easy fold.
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I am sure it is well meaning, but some of the advice you are receiving on this board is reckless and ill-informed. It is also failing to emphasize your two most important facts: (1) you are allegedly judgment proof (assumming you really don’t make much money) and (2) you have, what sounds like, a solid fair use defense.
1. “Hotlinked” is not a surefire defense in most cases. The 9th Circuit partially embraced a inline linking defense in the Perfect 10 case, but other circuits have not. This is a good example of why you should have an attorney review the facts as they pertain to you. Too often non-attorneys who do not know the law and who will not be accountable for unintended results of their the bad advice, are too inexperienced or too quick to do a proper analysis. See the Leaders Institute LLC case out of the 5th circuit (Texas case # 3:2014cv03572) where the court ruled against the inline link defense: "To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.” The fact that you used an inline link may make the case more speculative, and therefore less desirable to pursue, but it is far from a perfect defense.
2. Lawyer’s frequently ask to review insurance policies and sharing their opinion about the coverage is not an ethical violation if it is done with appropriate disclosures. Furthermore, you have no standing to make this complaint unless you were harmed by the offer.
3. These are absolutely your strongest points. If you have no money or there is a fair use defense, which there probably is if the image is of the book (as you mentioned above) or from the book, let them know. The sooner the better as it will relieve your stress and they will likely drop the case if you are correct or even close to correct.
4. I am pretty sure that you telling any lawyer that you are getting advice from a user forum or message board is only going to hurt your cause.
5. Filing complaints and threatening complaints is a waste of time unless they have real merit. 99.9% of bar complaints do not even result in an inquiry from the bar to the attorney. The state bar associations are not going to make attorneys waste time with meritless complaints. Any attorney who has been around knows this and does not care about these threats.
Counterclaims in court must have merit, otherwise, you risk getting hit with attorneys fees or, even worse, an anti-SLAPP motion (if the action is in an anti-SLAPP state).
As offensive as they may be, these copyright mills are businesses. No attorney who works on contingency wants to pursue, much less file a lawsuit against someone who cannot pay the judgment or who has a possible valid defense (which is sounds like you do). Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use. If you think you are dealing with an intern, look-up Higbee’s email address on the state bar web site and email or call him directly. Do not give them any information other than you believe the use of the image constitutes fair use and you want to know why they think it does not. If your article is about a book and the photo is of the book, I would be shocked if they could argue around a fair use defense.
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@Hamilton66 are you a Higbee employee?
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Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use.
Sure.
This is exactly how you move to the front of the line.
GTFOHWTS
If you have no money or there is a fair use defense, which there probably is if the image is of the book (as you mentioned above) or from the book, let them know. The sooner the better as it will relieve your stress and they will likely drop the case if you are correct or even close to correct...
Again, you sound like you work for Higbee....and with 1 post in your corner.... ???
Just saying..
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@clist
I had the same suspicion about Hamilton66. I disagree the advice of the forum is reckless. Farfrom it. I also disagree with H's idea of contacting Higbee and making an arguement. Save thatr for a judge if that were ever the case. I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post.
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@clist
I had the same suspicion about Hamilton66. I disagree the advice of the forum is reckless. Farfrom it. I also disagree with H's idea of contacting Higbee and making an arguement. Save thatr for a judge if that were ever the case. I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post.
Yeah. His post seemed very troll "ish". ;)
Additionally, I've read countless threads on ELI and have spoken to IP and Copyright attorneys and a lot of the statements made on this site were supported. So I'm calling BS on the "reckless" statement as well.
With that said, I do believe that everyone's situation is different and because of this there is no "1 size fits all" solution. That's why its so important for everyone to take what they read on this site with a grain of salt and do their own due diligence to build and strengthen their case.
Because at the end of the day, if you've been contacted by a troll ~ you need to get educated so you don't become another victim.
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@clist
I had the same suspicion about Hamilton66. I disagree the advice of the forum is reckless. Farfrom it. I also disagree with H's idea of contacting Higbee and making an arguement. Save thatr for a judge if that were ever the case. I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post.
Yeah. His post seemed very troll "ish". ;)
Additionally, I've read countless threads on ELI and have spoken to IP and Copyright attorneys and a lot of the statements made on this site were supported. So I'm calling BS on the "reckless" statement as well.
With that said, I do believe that everyone's situation is different and because of this there is no "1 size fits all" solution. That's why its so important for everyone to take what they read on this site with a grain of salt and do their own due diligence to build and strengthen their case.
Because at the end of the day, if you've been contacted by a troll ~ you need to get educated so you don't become another victim.
Agreed, there is no magic bullet, short of paying the demand. From time to time we get opinions like this it's nothing new..Most of us are not lawyers and we don't have to play by those standards, which is largely why we suggest "unorthodox" strategies, and prefer the "street fight" mentality., While the op does bring up a few points worth noting, I doubt the case we are discussing would land in the 5th district, in Texas. It would be argued in the 9th district ( I'm fairly certain) where the perfect10 case argued.
Naturally there are always risks involved in being upfront and filing complaints, and even if the Bar association doesn't act, any attorney concerned about there reputation, would likely respond to a filed complaint, even it it went nowhere... Need I refer to Stingers Bar Complaint about one of Tim McCormacks attorney, who not only had to respond, but ended up having to hire an attorney? Do I need to mention the 100's of complaints filed against getty Image with the Washington AG, that each required a response? Do i need to mention that Getty images used to send out letters demanding upwards of 1000.00, and those days are now over, whilst they still send letters, the amount demanded is much more reasonable..Did Getty make these changes to "be nice"..I doubt it, or did they tire of the push back from unhappy, unsuspecting, and now educated people??.. I guess we'll never know the true answer, but I suspect ELI had at least a small impact on their methods.
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I disagree with some of Hamilton's points. For example, I've never heard of standing being applied for ethics complaints. The issue for ethics discipline is the attorney's conduct alone, it doesn't matter if it had no measurable impact on anyone. Think of advertising violations for example.
In a normal world he has some points, but I don't think they apply in the bizarro world that everyone dealing with Higbee has stepped into. He is running a script, he does not respond to substantive issues. The person you are trying to discuss the issue with is an $18/hour bill collector, not an attorney.
He does file suits against people that are judgment proof, that filing fee is equal to $400 of free advertising to him to get bigger settlements from the next guy.
Most complaints do go nowhere, but using that as a reason to not make them is how the status quo endures. Only after enough people have had enough and the state bars start looking at this guy is he going to reform his operation. He can continue to troll all he wants within the rules, but he is currently crossing several lines with the deception, dishonesty, and misrepresentations he uses in communicating with defendants. He may think all the states he is licensed in are like California and do not have those rules, but he would be wrong.
Higbee doesn't follow the rules of reasonableness, so neither should anyone that has to deal with him.
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This thread has been really helpful and helped inform my own response {do nothing} https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-emails-for-supposed-stockfood-america-image/
I'm happy to file complaints as well!
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I have somehow missed Hamilton66's thread and will comment on it since you asked so nicely. :-)
I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post.
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Because someone asked me nicely to comment on your post, I will offer them inline...
I am sure it is well meaning, but some of the advice you are receiving on this board is reckless and ill-informed. It is also failing to emphasize your two most important facts: (1) you are allegedly judgment proof (assumming you really don’t make much money) and (2) you have, what sounds like, a solid fair use defense.
There are many ways to being "uncollectible" vs. being "judgment proof". You can't really stop certain judgments from occurring but you can be "uncollectible" which is the next best thing. You don't have to be poor to be "uncollectible." If you don't believe that, then go talk to collection agencies and collection departments and they will tell you that there are many stubborn people who are uncollectible because they rightfully or wrongfully are unwilling to pay. They dig their heels in. It is very hard to collect someone who is absolutely committed to digging their heels in. This is a FACT. This does not include any discussion of the strategic use of legal entities which is way beyond the scope of this thread.
1. “Hotlinked” is not a surefire defense in most cases. The 9th Circuit partially embraced a inline linking defense in the Perfect 10 case, but other circuits have not. This is a good example of why you should have an attorney review the facts as they pertain to you. Too often non-attorneys who do not know the law and who will not be accountable for unintended results of their the bad advice, are too inexperienced or too quick to do a proper analysis.
No one is going to be confused with any discussion forum being a source of personalized legal advice or review. It is a resource to open people's minds to the myriad options and possibilities. The senior members of ELI are not going to apologize for sharing our opinions. And some of us actually live what we preach. The very existence of ELI is based on free open discussions. People take what they need or want and can eject the rest. People are free to hire Oscar Michelen (a highly credible lawyer) who supports and legal advisor to the ELI mission.
And because the law is always so clear and there is so much consensus, right? This is the reason why courts all around the US are clogged and backlogged because lawyers on both sides are in so much agreement, right? And this is why multi-millions of dollars are spent every 4 years to winning elections so the winning political party can have the right to appoint preferred justices in the federal courts and the US Supreme Court? Because the law is always so clear and definitive, right? Bullshit. Often it is NOT clear and who makes the better, stronger argument. Or the person who digs in their heels the hardest. Or what is most politically favorable.
4. I am pretty sure that you telling any lawyer that you are getting advice from a user forum or message board is only going to hurt your cause.
What if I told you that MANY lawyers have called, communicated, and/or paid me (a clear non-lawyer) over the years based on what I wrote on these user forums? Are they morons for calling and getting my take on things? I openly tell everyone I am not a lawyer and don't give legal advice but still want my opinions nonetheless? No one has to inform anyone of WHERE or WHO they get their information. I give a lot of little known factual information but I am not going to reveal every freaking source I got it from. But people who know me, I am very careful in what I state as facts or opinions. And part of keeping that reputation is I have on occasion made public corrections in errors of fact or opinion.
5. Filing complaints and threatening complaints is a waste of time unless they have real merit. 99.9% of bar complaints do not even result in an inquiry from the bar to the attorney. The state bar associations are not going to make attorneys waste time with meritless complaints. Any attorney who has been around knows this and does not care about these threats.
So, basically you are saying that lawyers have no problems with receiving written complaints as long as they do not impact their public record? I don't mean to be insulting but that is one of the most NAIVE statements I have ever heard. Most lawyers don't want any negative written complaint about them in ANY FORM whether it is a public forum, state bar, Yelp review, lawyer rating review, RipOffReport, etc. They may say they don't care but any lawyer who gives a shit about their reputation do care. If we go into the ELI Forum archives I am absolutely certain we can find names of lawyers who were written about and subsequently left the extortion letter business. It is NOT a waste of time. There is generally a collateral negative effect in publicly and writing against those that would try to take your money.
Counterclaims in court must have merit, otherwise, you risk getting hit with attorneys fees or, even worse, an anti-SLAPP motion (if the action is in an anti-SLAPP state).
Of course, they have to have merit based on fact. No is telling anyone to engage in reckless, defamatory behavior. Having said that, you are fear-mongering. There are MANY public cases where people make all kinds of outrageous statements in their pleadings. One only needs to pay attention to the news of all these outrageous claims. And anti-SLAPP is generally about using lawsuits to silence people from speaking out. I don't see how someone fighting a copyright infringement accusation is going to be perceived as trying to silence a copyright plaintiff. I think you are conflating different issues with your statement.
As offensive as they may be, these copyright mills are businesses. No attorney who works on contingency wants to pursue, much less file a lawsuit against someone who cannot pay the judgment or who has a possible valid defense (which is sounds like you do).
I agree with this!
Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use. If you think you are dealing with an intern, look-up Higbee’s email address on the state bar web site and email or call him directly.
Most People should not be calling. They should be using written communications. It is much more controlled and disciplined than a potentially reckless conversation.
Do not give them any information other than you believe the use of the image constitutes fair use and you want to know why they think it does not. If your article is about a book and the photo is of the book, I would be shocked if they could argue around a fair use defense.
I agree with this.
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Just to be clear. Being uncollectible is not something someone with assets just decides to do once they get a judgment. If you have assets, judgments are usually a very bad thing, especially ones from a federal court. Being unwilling to pay or deciding to be “uncollectible” is not an option for 99% of the people who have one of the following things (to name just a few):
1. House with equity
2. Business with assets
3. Bank accounts with money in them
4. Receive a W-2 paycheck
5. A vehicle that is owned or worth more than is owed
6. Web sites with valuable domain names or traffic
A judgment can also screw a person’s credit for a longtime. Some credit lines and loans can become payable if a person gets a judgment against them.
“A Lawyer” has previously posted some good information about judgments at
https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/ (https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/)
And https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/ (https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/)
My advise, unless you have previously engaged in some very significant and often costly assets protection strategies, don’t get a judgment against you or your business.
If you have assets worth preservering, hire a lawyer who handles copyright claims (preferably one with history of photo cases). You may not need longterm representation, but you need a professional to review your case.
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Of course, judgments are a bad thing and it is certainly preferred to not get one. I never said it wasn't a bad thing but it ain't the end of the world. When I say "uncollectible", it should be obvious, I don't mean it in a literal or legal sense. It is an attitude with some street-attitude brain power behind it. It is my hyperbolic term to mean "very difficult and expensive to collect that is not worth it".
If filing a lawsuit, getting a judgment and collecting cash and assets is so easy and inexpensive, why are any of us discussing extortion letters at all? Why should Higbee waste their time calling, pleading, and sending emails REPEATEDLY to convince people to pay? They should be advising every client to file a lawsuit against everyone they believe can pay up.
If it was all so easy, why did Righthaven get pounded into the ground? It if it was all so easy, why did the RIAA stop their lawsuit campaign years ago? IF it was all so easy, why did Prenda Law and its ilk get put down like the dogs they were?
What about Masterfile that embarked on a copyright infringement lawsuit spree in the 2010-2012 era? Why did they abruptly stop their lawsuit campaign? Could it be that perhaps their lawsuit campaign became too costly? Could it be despite their many "winning" judgments, they ultimately lost money because they decided to listen to some "knowledgeable lawyer" who thought it was smart to file all these reckless lawsuits to "set an example" thinking that all these "easy default judgments" which supposedly includes reimbursement of legal and filing fees never actually translated to collecting cash?
Of course, if someone is willing to spend unlimited time, energy, and money to collect on a finite judgment, it is possible to "collect" almost anything. But who in their right minds will spend unlimited time, energy, and money to do so? Very few. But judgments and the collection process can be a very arduous and expensive process. If it wasn't, you wouldn't have finance and collection companies constantly offering "settlements" even after a judgment occurs. And most people don't know that not all judgments don't exist "forever". Some do "expire". Please note my quotation marks so you don't take it literally.
And, if you think all these unpaid accounts with collection agencies and businesses are confined to the poor, renters, and people without a car and a house, I would say you probably have not seen enough. And if you think that the only people with unpaid judgments and debts are living homeless in a tent under a bridge, you clearly have not seen what I have seen.
I also happen to know how legal titles work with both real estate and vehicles. Unless you are a direct secured lender, it ain't so easy to take control the asset as you seem to be implying and squeeze spendable cash out of it. You have also not seen mortgage companies who won't foreclose even when they have every right to do so. It is very hard to squeeze cash from a knowledgeable person unable or unwilling to pay.
Regarding credit, I know plenty of people who have good and bad credit. And the people with bad credit certainly are inconvenienced by not having good credit. But it ain't the end of the world. And bad credit can become good credit again if you know how to do it. Bank accounts can be closed and money can be transferred to accounts in different names. Most websites are not worth very much financially. Most websites are pretty worthless and I challenge anyone to take over most people's websites and try to squeeze spendable cash from it. If the owner walks away from the website, most websites become quite worthless.
If you want to help serve the Higbee cause by spreading gloom and doom, you can do that. Uninformed people who do not know the details and mechanics of the things you outline have few choices. OR, they can get smarter. And yes, there are defense lawyers who are experts who fight against collection lawyers. But you don't have to be an asset defense lawyer to adopt the strategies and tricks of the trade.
As a general rule, I respect lawyers but I have been around long enough and seen enough to know that there isn't a single lawyer that "knows it all". And there are many "knowledgeable" lawyers that discuss ivory tower theory vs. what happens on the streets which is what I base my statements on.
So, if people want conventional advice, people can just roll over because of an extortion letter and the threat of a lawsuit and pay up. Or they can smarten up and actually learn some finer points. And just so you know, people who succeed in beating back collection efforts don't advertise their victories. They win quietly.
Just like many victims who hunkered down for 3-years living with uncertainty under the statute of limitations pass? They stayed quiet and laid low until the 3-years passed. And don't insinuate that the only people who hunkered down for 3-years are people who have no assets. I happen to know otherwise.
Bottom line, readers can your views and my views and they can decide for themselves if they want to perhaps get smarter and learn something about standing up for themselves and not getting taken advantaged of.
Just to be clear. Being uncollectible is not something someone with assets just decides to do once they get a judgment. If you have assets, judgments are usually a very bad thing, especially ones from a federal court. Being unwilling to pay or deciding to be “uncollectible” is not an option for 99% of the people who have one of the following things (to name just a few):
1. House with equity
2. Business with assets
3. Bank accounts with money in them
4. Receive a W-2 paycheck
5. A vehicle that is owned or worth more than is owed
6. Web sites with valuable domain names or traffic
A judgment can also screw a person’s credit for a longtime. Some credit lines and loans can become payable if a person gets a judgment against them.
“A Lawyer” has previously posted some good information about judgments at
https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/ (https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/)
And https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/ (https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/)
My advise, unless you have previously engaged in some very significant and often costly assets protection strategies, don’t get a judgment against you or your business.
If you have assets worth preservering, hire a lawyer who handles copyright claims (preferably one with history of photo cases). You may not need longterm representation, but you need a professional to review your case.
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Whatever failures those businesses had does not change the fact that 99% of the time judgments are quite easy to collect on when a person has assets. Federal judgments last for 20 years and can be easily extended. Those are facts.
I am not helping anyone’s cause but people who are looking for help. If a person has assets worth protecting, they need to speak to a lawyer who handles copyright law. That lawyer can properly advise them on whether they should fight, settle or lay low. That is not caving or giving in, that is getting educated and in position to make the best possible decision.
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Of course, judgments are a bad thing and it is certainly preferred to not get one. I never said it wasn't a bad thing but it ain't the end of the world. When I say "uncollectible", it should be obvious, I don't mean it in a literal or legal sense. It is an attitude with some street-attitude brain power behind it. It is my hyperbolic term to mean "very difficult and expensive to collect that is not worth it".
This idea is premised on the assumption that the judgment debtor has to somehow give permission for the judgment creditor to be able to collect. If I had a judgment against you, I could just fill out a simple form, file it with the court to get a writ of execution and then walk into your bank (or have the sheriff do it) and the bank will immediately levy your account. If I know where you work, I can fill out a form and get your wages garnished. If I know that you own property, I can just go to the county recorder's office and fill out a simple form and put a lien on your property. etc etc etc.
Believe it or not, most of this stuff is pretty easily searchable on LexisNexis or other public records databases that most lawyers usually have access to. At that point, simply being uncooperative would not be as effective as a strategy as in the pre-litigation phase. Don't get me wrong, it still takes time and effort to do all of that, but if someone is going to go through all the trouble to get a judgment (which is usually the hard time-consuming part) I doubt they will just suddenly tap out and decide its "not worth it" to collect. Especially since they can easily turn it over to a professional collections firm who will take it on contingency.
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I've tracked over 50 cases involving Higbee. Not one has gone to trial. Not one! So why are we talking about judgements?
That's the key folks. Don't let a copy troll intimidate with legal threats because when you punch a bully in the nose they run away.
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I've tracked over 50 cases involving Higbee. Not one has gone to trial. Not one! So why are we talking about judgements?
That's the key folks. Don't let a copy troll intimidate with legal threats because when you punch a bully in the nose they run away.
You can get a judgment without ever going to trial. The Higbee cases that I have seen seem to mostly seem to be someone using photos on a website, a screenshot attached to the complaint, and Higbee claiming they never purchased a license. Barring some type of fair use defense, in most cases that would probably be enough for a court to eventually grant summary judgment. So those types of cases would likely never go to trial anyway.
My guess is that Higbee is smart enough to only choose the best cases to file on, which is why they all seem to settle eventually. Going to trial is expensive, and if you are on the defense side (and paying your lawyer hourly) it probably isn't worth the expense, especially when there is a good chance of losing. That's the unfortunate reality of these cases.
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Judgment or no judgement, who cares. A court is not a collection agent. And for many of the awards I have seen, it won't be worth it to collect those amounts if the extortion target is unwilling to pay.
It's THEIR problem to figure out where my assets are. And good luck with that. Life goes on, no problem.
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In hopes of preventing people from being misled and at risk of getting accused of spreading doom and gloom again, I need to point out that KingKendall’s welling meaning advice appears to be based on a complete lack of understanding of copyright litigation.
Copyright litigation is pretty unique. Cases not going all the way to trial is more likely a sign that attorneys, like Higbee & Associates and Liebowitz Law Firm, who file hundreds of cases a year, are winning big. By winning, I meaning getting settlements that make their clients happy and wanting to file more cases.
Less than 1 percent of copyright lawsuits go to trial because defendants settle fast or plaintiffs win on a summary judgment or default judgment.
I don’t have the time or inclination to go through hundreds of the lawsuits that Higbee & Associates files, but I have read the docket on about 25 of their cases and read the pleadings on about 10.
Higbee & Associates is consistently winning its motions. I saw wins on motions to strike defenses and in opposition of motions to dismiss for various causes. I saw them lose a motion for lack of personal jurisdiction over one party on a multi-party litigation.
Higbee and Liebowitz are also going deep on some cases. Some of their cases have been going on for more than a year. This shows that they have the resources and incentives to fight. I read an article that said Higbee is getting a whopping 50% of the recovery.
It is impossible for non-parities to know what the outcome is on cases that settle, which is what happens on 99% of copyright cases, but fact that the law firms keeping filing more cases and that they are consistently winning their motions is a good indication that they are consistently getting outcomes their clients like.
@KingKendall, are you seeing something I am not? Can you point to a case where Higbee lost on a motion to dismiss, was sanctioned for frivolous filing or anything else to suggest they are not consistently winning/getting good outcomes for their clients?
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It's THEIR problem to figure out where my assets are. And good luck with that. Life goes on, no problem.
What awards have you seen? Do tell.
I do not know if Higbee is doing his own collections or outsourcing them, but someone is. Federal judgments are valuable. Plus, logic would suggest that they are only filing lawsuits against people who they believe have assets. (Which goes back to my suggestion that those who do not have assets or won’t have collectible assets shouldn’t worry too much about this stuff).
Federal judgments last a minimum of 20 years and accrue interest, usually at around 10%. 20 years is a longtime to try to lay low and hide assets.
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Really? Higbee is doing his collections? Of course he is. Is he outsourcing his collections? I would like to know more about this if anyone wants to send me the information.
And since these federal judgments are such a sure and easy thing, anyone who owns any assets should just bend over and pay whatever anyone demands and sends via email, right?
I do not know if Higbee is doing his own collections or outsourcing them, but someone is. Federal judgments are valuable. Plus, logic would suggest that they are only filing lawsuits against people who they believe have assets. (Which goes back to my suggestion that those who do not have assets or won’t have collectible assets shouldn’t worry too much about this stuff).
Federal judgments last a minimum of 20 years and accrue interest, usually at around 10%. 20 years is a longtime to try to lay low and hide assets.
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Hence, Oscar Michelen has been the legal advisor for ELI for 10 years. Oscar and his legal representation program is the best value program offered anywhere that I have seen for these types of cases:
https://www.extortionletterinfo.com/oscar-michelens-copyright-legal-defense-representation-program/
He charges a reasonable flat legal fee to assist those parties who prefer a legal representative and legal services.
If people prefer to NOT handle their own cases and use unconventional strategies and tactics, I endorse Oscar Michelen. He understands both worlds.
Over the years, Oscar and I have had many discussions over the years from both perspectives. Without getting into specifics, we actually agree on a lot. I understand his arguments and he understands my arguments.
On ELI, people get the best of both worlds whether they prefer to handle things pro se or if they elect to hire him. Everyone has options. (No, I get no commission from him or his law firm for recommending him.)
I am not helping anyone’s cause but people who are looking for help. If a person has assets worth protecting, they need to speak to a lawyer who handles copyright law. That lawyer can properly advise them on whether they should fight, settle or lay low. That is not caving or giving in, that is getting educated and in position to make the best possible decision.
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And since these federal judgments are such a sure and easy thing, anyone who owns any assets should just bend over and pay whatever anyone demands and sends via email, right?
Is this your attempt to misconstrue my comments or am I becoming defensive? Eitherway, let me reiterate, anyone who has assets, plans to have assets or cares about their credit should hire an attorney to evaluate their case. Relying exclusively on posts in any online forum, including mine, is a very bad idea.
Once a person gets competent legal advise, they they can decide what approach to take.
Oscar Michelen sounds like a good starting point.
Any idea how much he charges? In what states is he licensed to practice?
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Since it is so simple and easy, WHY is it there so many bad debt, collection accounts, and outstanding judgments? It must be because they don't have access to your expert knowledge.
Judgments don't just show up out of thin air. People get some notice because a lawsuit has to be filed in advance and generally there are warning signs of impending legal action and there are attempts to process serve the party. Once people realize that service is imminent, informed people can make things happen very quickly and execute actions. People strategically do things if they are determined to fight it. They don't just sit on their hands.
They may not win the fight and ultimately lose. But ultimately, it is a civil matter. People have the right to be legally vexatious if they want to be. I am not telling people to be vexatious but the fact of the matter is that people can be vexatious if they choose it.
I would submit to you that both getting a judgment AND collections are difficult. It ain't slam dunks. I would submit to you it takes a LOT of time and effort. My statement is not a theoretical one. They come from multiple informed sources.
And history has shown in the age of the Internet, anyone who decides to embark on a reckless lawsuit campaign or hits the wrong defendant the wrong way invites a lot of potential bad karma their way.
The general public will NEVER be sympathetic to onerous lawsuits against any mom-and-pop business or individual just because they refused to pay an outrageous settlement over using some worthless low-resolution image. History has shown that bad things happen to those parties and employees who engage in reckless, irresponsible behavior.
I think many people know this. People are never truly anonymous. Employees in the attack business are never really safe against an angry person. They know in the age of the Internet, they need to be somewhat tempered. There are people who will lash out at them in unpredictable ways.
Some of these employees who work in the extortion business are downright stupid. They may find themselves unemployable or limited future employment opportunities for some of the things they do and sign in the name of their employers.
They may ultimately get their money out of a defendant but I can see that some of those defendants might become vengeful and become vindictive.
This idea is premised on the assumption that the judgment debtor has to somehow give permission for the judgment creditor to be able to collect. If I had a judgment against you, I could just fill out a simple form, file it with the court to get a writ of execution and then walk into your bank (or have the sheriff do it) and the bank will immediately levy your account. If I know where you work, I can fill out a form and get your wages garnished. If I know that you own property, I can just go to the county recorder's office and fill out a simple form and put a lien on your property. etc etc etc.
Believe it or not, most of this stuff is pretty easily searchable on LexisNexis or other public records databases that most lawyers usually have access to. At that point, simply being uncooperative would not be as effective as a strategy as in the pre-litigation phase. Don't get me wrong, it still takes time and effort to do all of that, but if someone is going to go through all the trouble to get a judgment (which is usually the hard time-consuming part) I doubt they will just suddenly tap out and decide its "not worth it" to collect. Especially since they can easily turn it over to a professional collections firm who will take it on contingency.
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We are going to have to agree to disagree on some points. I am not intentionally trying to misconstrue your comments but I don't care for some of the intentional or unintentional inferences you make about federal judgments. I feel a need to offer a counter-point and counter-argument to your points and arguments.
I would like to point out that not everyone has the luxury of paying $300-$500 per hour for legal advice. And even those who can afford it don't necessarily find the right lawyers. The right lawyers are those that know how this extortion letter niche works and the parties involved, not just copyright infringement broadly.
People who can afford and have the natural instinct to hire a lawyer will do so. Most of the ELI readers here are not necessarily well-heeled or they are outraged over what has happened. Most don't need me or anyone else to tell them to call a lawyer. That is most people's FIRST instinct. If they could do it easily find expert help affordably, they would. They would not come to these forums looking for alternative ideas.
To read through hundreds of discussion posts from different perspective takes much more work, effort, and brainpower.
People who really want to know about Oscar and his program can start here.
https://www.extortionletterinfo.com/oscar-michelens-copyright-legal-defense-representation-program/
He also has written hundreds of posts over the years. Just do a search on his name on these forums.
Is this your attempt to misconstrue my comments or am I becoming defensive? Eitherway, let me reiterate, anyone who has assets, plans to have assets or cares about their credit should hire an attorney to evaluate their case. Relying exclusively on posts in any online forum, including mine, is a very bad idea.
Once a person gets competent legal advise, they they can decide what approach to take.
Oscar Michelen sounds like a good starting point.
Any idea how much he charges? In what states is he licensed to practice?
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Higbee does win a lot of those motions concerning pleadings but when I was researching his case filings in multiple states the trend I saw is he loses on his motion for summary judgment. Shortly after he loses his summary judgment probably 90% or more of cases (the ones with serial small time images, not the established photogs) settled. Once he loses summary judgment that forces his hand to leave his California desk or pay out of pocket for local counsel to attend hearings etc and I wager those settlements are more favorable to defendants than to Higbee.
And there was at least once case from West Texas where the judge floated the idea of sanctions against Higbee for a discovery violation I believe. It didn’t reach its conclusion because the judge only mentioned it to facilitate settlement, and it worked. I posted the letters from counsel about it in a post on here.
In hopes of preventing people from being misled and at risk of getting accused of spreading doom and gloom again, I need to point out that KingKendall’s welling meaning advice appears to be based on a complete lack of understanding of copyright litigation.
Copyright litigation is pretty unique. Cases not going all the way to trial is more likely a sign that attorneys, like Higbee & Associates and Liebowitz Law Firm, who file hundreds of cases a year, are winning big. By winning, I meaning getting settlements that make their clients happy and wanting to file more cases.
Less than 1 percent of copyright lawsuits go to trial because defendants settle fast or plaintiffs win on a summary judgment or default judgment.
I don’t have the time or inclination to go through hundreds of the lawsuits that Higbee & Associates files, but I have read the docket on about 25 of their cases and read the pleadings on about 10.
Higbee & Associates is consistently winning its motions. I saw wins on motions to strike defenses and in opposition of motions to dismiss for various causes. I saw them lose a motion for lack of personal jurisdiction over one party on a multi-party litigation.
Higbee and Liebowitz are also going deep on some cases. Some of their cases have been going on for more than a year. This shows that they have the resources and incentives to fight. I read an article that said Higbee is getting a whopping 50% of the recovery.
It is impossible for non-parities to know what the outcome is on cases that settle, which is what happens on 99% of copyright cases, but fact that the law firms keeping filing more cases and that they are consistently winning their motions is a good indication that they are consistently getting outcomes their clients like.
@KingKendall, are you seeing something I am not? Can you point to a case where Higbee lost on a motion to dismiss, was sanctioned for frivolous filing or anything else to suggest they are not consistently winning/getting good outcomes for their clients?
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Higbee does win a lot of those motions concerning pleadings but when I was researching his case filings in multiple states the trend I saw is he loses on his motion for summary judgment. Shortly after he loses his summary judgment probably 90% or more of cases (the ones with serial small time images, not the established photogs) settled. Once he loses summary judgment that forces his hand to leave his California desk or pay out of pocket for local counsel to attend hearings etc and I wager those settlements are more favorable to defendants than to Higbee.
Would you mind posting the names of the cases where he lost on summary judgment? I would love to see if I can get his moving papers from Lexis/pacer to see what arguments he made and why the judge denied the motion. I'll try and post them here if I can find them (and they don't cost an arm and a leg in pacer fees!).
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My comments inline...
Copyright litigation is pretty unique. Cases not going all the way to trial is more likely a sign that attorneys, like Higbee & Associates and Liebowitz Law Firm, who file hundreds of cases a year, are winning big. By winning, I meaning getting settlements that make their clients happy and wanting to file more cases.
Less than 1 percent of copyright lawsuits go to trial because defendants settle fast or plaintiffs win on a summary judgment or default judgment.
I am not sure what you mean by "winning big". Do you mean a high ratio of settlements or do you mean the actual dollar amounts being settled is large? I would probably agree that the majority of the cases don't go all the way because they are being settled. Nevertheless, I refer you to the Masterfile, RIAA, Righthaven, Prenda cases, that went "all the way". I don't consider their records as "winning big". Based on my light research, people who are determined to fight, be vexatious, and not pay do end up succeeding in not paying. There may be collateral damage to the defendant themselves or the occasional defeat but I would venture to say a certain negative price was paid by the plaintiffs.
Higbee and Liebowitz are also going deep on some cases. Some of their cases have been going on for more than a year. This shows that they have the resources and incentives to fight. I read an article that said Higbee is getting a whopping 50% of the recovery.
I would say that those are the exceptions, not the rule. And regarding Liebowitz, he is not considered a shining example of long-term career success in his efforts. Anyone can score short-term wins. Time will tell. Every copyright troll that have embarked on aggressive reckless legal litigation has not ended up well for them. Let's talk about Liebotwitz in a few years and see if he is still in business and not considered a legal pariah. It is still early. Liebowitz has already been loudly called out by a NY judge and reported very publicly (eg. The Hollywood Reporter) for his questionable, reckless tactics. He is currently suffering collateral damage for he's done thus far but most people don't see that. People who only read PACER, docket, and pleadings miss out on other events that occur outside the court system. I follow "outside stuff" quite closely because I am a big believer in seeing what happens in the "real world". People and lawyers also have to live in the "real world" not just the bubble of Pacer. There are no shortage of arrogant lawyers who make the news and have become viciously spanked by the "real world". FWIW, comparatively speaking, I view Higbee operation more credibly than Liebowitz's. Unless Liebowitz changes his ways, someone or some entity will spank him in a big way he never expects. That is the way the world works.
It is impossible for non-parities to know what the outcome is on cases that settle, which is what happens on 99% of copyright cases, but fact that the law firms keeping filing more cases and that they are consistently winning their motions is a good indication that they are consistently getting outcomes their clients like.
I get more "quiet" information than most. It is true that in MOST cases I don't really know the amounts settled. But based on the few people who quietly and informally inform me, I have a small sampling and fair idea of the dollar amounts. And "winning" is not always as it appears on the surface.
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Notice how Chan does not answer the question about what states Oscar Michelin is licensed to practice in????????
He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York. See for yourself at http://cuomollc.com. Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York. He and Chan are scam artists.
How long before someone reports Oscar Michelin and Cuomo LLC for unauthorized practice of law??? Why isn’t Oscar Michelin's name and Cuomo LLC’s name all over Ripoffreport.com yet?
How many minutes before Mr. First Amendment Matthew Chan or one of his mouth-breathing admins delete this post and my account????????????
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Who are you, "This Site is a Joke?" What are you so upset about? What is your beef? That I am taking up for extortion letter victims and explaining pro se options?
Notice how Chan does not answer the question about what states Oscar Michelin is licensed to practice in???????? He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York. See for yourself at http://cuomollc.com.
Of course, I could answer if I wanted to answer. I didn't answer the question because it was a dumb question and shows that the person asking the question made zero effort to do any research himself of the rest of this website or on Google. Oscar Michelen has been on this website for 10 years and been in practice for far longer. He and his law firm are not in hiding. The fact that he is based in New York and a NY lawyer can be found in many places. I think he might be licensed in New Jersey also. I am not obligated to answer questions, especially simplistic ones. I am not obligated to give any answers on a silver platter. I volunteer my time here. I answer those posts that I feel appropriate.
Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York. He and Chan are scam artists.
Oscar has been openly helping extortion letter victims for a decade now. And he literally has hundreds of clients very happy with his services. I can't remember the technical explanation of how lawyers can cross state lines but (I believe) the restriction comes in when it actually involves an actual court case. Even then, lawyers are routinely represent and admitted into other states pro hac vice through sponsoring lawyers. Oscar can represent clients in the same manner Higbee can represent Nick Youngson in the UK and other copyright owners in the US. outside of Higbee's home base of California.
How long before someone reports Oscar Michelin and Cuomo LLC for unauthorized practice of law??? Why isn’t Oscar Michelin's name and Cuomo LLC’s name all over Ripoffreport.com yet?
Maybe because Oscar is not doing what you are claiming and actually has many grateful readers and clients appreciative of his involvement when very few lawyers are willing to take on copyright defense for the little guy?
How many minutes before Mr. First Amendment Matthew Chan or one of his mouth-breathing admins delete this post and my account????????????
I don't know. It depends on how disrespectful and defamatory you intend to be. ELI is a privately-owned site, not a government-owned site. "Mr. First Amendment Matthew Chan" knows where the boundaries are. And why are you so upset with me? I am on the side of most victims and trying to keep options open. Would you rather I just tell everyone, "yeah, people have zero options. People should go ahead and pay up?
And for the record, Oscar has represented me in GA and other people in court cases despite being a NY lawyer. He did it through pro hac vice and had a sponsoring lawyer. Chan vs. Ellis went all the way to the GA Supreme Court. Oscar was the NY lawyer who was also the LEAD Lawyer in a Georgia matter.
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He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York. See for yourself at http://cuomollc.com. Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York. He and Chan are scam artists.
What basis do you have to think he takes claims that do not involve a party in NY? Did you look to see if any other attorneys in his law firm are admitted in other states?
All he would need is for the client or for the copyright holder to be in a state where he is admitted or, if the contract is with his law firm, any state where one of his associates is admitted. Keep in mind that a couple federal courts do not require an attorney to be a member of the state bar.
Some of the content on this site could, emphasis on could, be construed as attorney advertising. I would have lots of disclaimers on it if I were Mr. Michelin, but that is different than unauthorized practice of law.
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Ethan Seven,
The issue of Oscar representing people throughout the U.S. has come up before and I did ask him about it many years ago when ELI was very young. ELI is now ten years old! The representation issue is in the same vein as Higbee, and many other copyright lawyers representing their clients (not all based in the lawyer's own state) sending out letters to accused infringers throughout the U.S. I don't remember the technical explanation but you did jog my memory a bit. I think it is related to the fact that copyright infringement is a federal matter, not a state matter. One has to be a U.S. lawyer admitted to federal court I think? As such, somehow by virtue of the fact that copyright infringement is a federal matter, it allows all the lawyers on BOTH sides to both litigate and defend. I don't remember the finer points of how it works in an actual court case in the federal court system, but I think it involves calling in a local state lawyer to work with them. But there has never been any doubt in my mind what he does is entirely legitimate.
Oscar has been involved in lots of cases in many jurisdictions over the years. He may even be licensed in NJ I think but I have always referred to Oscar as a New York lawyer who takes on both copyright prosecutions and copyright defense. He has been on both sides of the fight. That has never been a secret.
Last thing, thanks to you, I caught a clerical error I made about the missing "Attorney Advertising" disclaimer on this page: https://www.extortionletterinfo.com/oscar-michelens-copyright-legal-defense-representation-program/
That was a page newly created and rewritten sometime in January 2018. For years, Oscar has always insisted that I put in the "Attorney Advertising" disclaimer on his one ELI page dedicated to promoting and explaining his legal service. Up until then, the page was always written in my voice and as a personal endorsement. I would get into a debate with him that it was MY personal endorsement freely given because I believe in his legal expertise and abilities. I have found Oscar to be a man and lawyer of integrity. Hence, I have always been resistant to the idea of "Attorney Advertisement" vs. my personal endorsement.
In an exercise of caution and in the spirit of Oscar's personal preference and insistence, The Attorney Advertisement disclaimer has existed for years. However, during the rewrite/revision, I somehow accidentally left out the Attorney Advertisement disclaimer. That is on me. I made the clerical error and no one caught it. Up to now, no one said anything. But your casual reference about it made me go back and look at that page again more carefully. I reinstated the Attorney Advertisement disclaimer Oscar has always insisted upon that was inadvertently left off by me.
Thank you for the catch.
What basis do you have to think he takes claims that do not involve a party in NY? Did you look to see if any other attorneys in his law firm are admitted in other states?
All he would need is for the client or for the copyright holder to be in a state where he is admitted or, if the contract is with his law firm, any state where one of his associates is admitted. Keep in mind that a couple federal courts do not require an attorney to be a member of the state bar.
Some of the content on this site could, emphasis on could, be construed as attorney advertising. I would have lots of disclaimers on it if I were Mr. Michelin, but that is different than unauthorized practice of law.
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Notice how Chan does not answer the question about what states Oscar Michelin is licensed to practice in????????
He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York. See for yourself at http://cuomollc.com. Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York. He and Chan are scam artists.
How long before someone reports Oscar Michelin and Cuomo LLC for unauthorized practice of law??? Why isn’t Oscar Michelin's name and Cuomo LLC’s name all over Ripoffreport.com yet?
How many minutes before Mr. First Amendment Matthew Chan or one of his mouth-breathing admins delete this post and my account????????????
Well, well well...
When IP addresses get logged in a database trolls are not anonymous as they may think...
I'm sure the site Admin has better things to do but if one were so inclined.... ;)
8)
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I have stayed off the site for some time because quite frankly Matt Chan and others do an excellent job of responding and providing information and frankly a large bulk of our work on ELI has been accomplished - we have pushed back, diminished or eliminated countless trolls and scare tactics over the many years ELI has been operating. I have helped over 3,500 businesses and individuals in these claims including some brought by some excellent, capable and large law firms. Its curious none sought fit to report my "unlicensed practice of law." Here's why: 1. I am merely responding to a claim letter (often sent to a State by a lawyer who is not admitted in that State by the way) 2. The claim is based on Federal copyright law. 3. The client retains me in NY (I am also admitted in NJ btw as is my law partner). 4. The client is advised that if the matter proceeds beyond the initial letter or into suit, they need to retain local counsel. FYI In such cases, I have been admitted pro hac vice (for just that case) in several states around the country 5. It is generally understood around the country by attorneys and Bar Associations alike, that this does not violate the unlicensed practice of law. Finally - rather than say "This site is a joke" without any specifics, the work of this site, the contributions of its members and participants speak for itself. As for me, I have been practicing law for over 30 years,served as an adjunct professor at 2 law schools, written countless scholarly articles, been designated and testified as an expert in several litigation matters, been honored for my pro bono work in various fields, exonerated 7 men in the last 14 years who were convicted and jailed for crimes they didn't commit (combined time served over 110 years), serve on various non-profit boards, etc etc . I am not worried about my reputation friend. Folks who I have helped through this site and who I continue to help are getting some of the best legal representation in the country at a rock bottom price because I believe in what ELI does and am deeply opposed to the copyright trolling schemes we fight against. You want to report someone? How about reporting these lawyers engaging college students and interns to send out these boilerplate letters scaring people that they can be criminally prosecuted or face $150,000 in damages per image for hosting a digital image of a cactus on their Mommy and Me blog for three months with 25 views? That might be more productive