ELI Forums > Higbee Associates Letter & Lawsuits Forum

Meyer, Suozzi, English, Klein v. Mathew Higbee, Youngson, RM Media, Higbee Assoc

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icepick:
I noticed the attorney representing Higbee is Rayminh Ngo again. Didn't I read about him getting pinched in another matter about practicing in NY when he is out West?

TedStryker:
Meyer, Suozzi, English & Klein is a well known and well respected law firm on Long Island. They are very well connected politically and they are very careful in their practice. Kevin Schlosser is their top litigator and he is very careful with the cases he takes on.

The firm clearly doesn't want this $150,000 fake claim over their heads, so they went the declaratory judgment route. Higbee is going to want to settle if their motion to dismiss fails, because I think an adverse decision would end the Youngson honeypot case.

I will say is that Higbee was eventually going to pick a fight with the wrong people and I don't know why one of Higbee's staff members didn't realize that they shouldn't put in a demand to such a firm. I know so much of their work is a mail merge, but they should've pulled this demand out.

ohhellno:
Everyone impacted by Nick Youngson claims really should read and understand the Memorandum of Law filed by Meyer, Suozzi, English & Klein, P.C. in their case against Higbee and Youngson. Essentially it boils down to whether the attribution requirement of the Creative Commons license was a covenant (a term of the contract that would allow Youngson to sue for breach of contract and damages, but not copyright violation) or a condition (failing to attribute means that the license was invalid, and thus allowing Youngson to bring a copyright violation claim). The Youngson websites "mysteriously" changed for many images this summer to add language stating that attribution is a CONDITION, highlighting (IMO) that previously it was a covenant. Because most people make zero dollars off their images, they have no damages to sue under the covenant/breach of contract claim. Youngson also conveniently scrubbed the websites off the wayback machine around the same time, likely to hide the fact that it previously stated it was just "required" = covenant. Luckily we were able to capture an image before they did this, so we have pictures of the "before" and "after" showing how they changed the language on the website to try to retroactively make attribution a condition. I think that Youngson/Higbee realized they messed up, and so added the language to make their honeypot more effective. But what that means is that everyone caught up in this scam prior to the website being edited MAY have a strong argument that there was only a failed covenant of the license (which basically means no $ for Youngson/Higbee), but no basis for a copyright violation claim (where the big bucks are). Everyone getting letters from them should obviously consult an attorney in their jurisdiction, but I think the MOL is a useful read.

https://cases.justia.com/federal/district-courts/new-york/nyedce/2:2018cv03353/418211/11/0.pdf

Matthew Chan:
I have seen different law firms respond in very different ways when they are the ones receiving the demand letters. Suddenly, they are working "pro se" in the sense that they are scrambling to figure things out to represent themselves looking for some legal argument to support their position. And you find out the risk tolerances of the underlying decision-makers quickly.

There are vulnerabilities relating to insurance matters that have come up in discussion. Or sometimes lawyers/law firms don't like the potential negative publicity.  Or they don't want the distraction and collateral costs of pulling their resources away from the paying clients.  Or they simply don't like being a defendant party at all. Law firms and lawyers generally draw their strengths and income from representing others, not being a party themselves. It is interesting to hear the things lawyers and law firms worry about.

Having said that, there are folks who don't like to take things lying down and simply waiting it out. Hence, the MSEK firm decided to proactively strike out first. Win or lose, I commend them for not just rolling over the whole RM Media/Youngson honeypot scheme. Win or lose, it will show people MSEK are fighters. That is how I view them.


--- Quote from: TedStryker on September 29, 2018, 09:08:44 PM ---I will say is that Higbee was eventually going to pick a fight with the wrong people and I don't know why one of Higbee's staff members didn't realize that they shouldn't put in a demand to such a firm. I know so much of their work is a mail merge, but they should've pulled this demand out.

--- End quote ---

Ethan Seven:
I dug into the fine print of the Creative Commons 3 license.  The license is pretty clear that attribution is a condition, not a covenant.  In fact, it evens says the license is revoked automatically if the attribution is removed. 

My guess is that defendants win on their 12b6 dismissal or a motion for judgment on the pleadings. But then again, you never know what a federal court judge will do.

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