This Will Be Interesting To Watch

[Ethan Seven]

I came across something interesting this weekend while trying to compile a list of results on Higbee’s copyright cases (an off again, on again late night project that is taking way more time than I thought.  They file a lot of lawsuits and I am focusing on ones that have motions filed). 

Anyway.

A New York based law firm is representing itself in a lawsuit against RM Media, Nick Youngson, Higbee & Associates and Matthew Higbee.    The case is Federal court in the Southern District of New York.  The Plaintiff is asking for declaratory relief stating that the use of one of RM Media’s photos does not constitute copyright infringement and for damages under a New York State consumer protection statute.   A license to use the photo was made available for sale or via a Creative Commons license. 

Higbee Associates has filed a motion to dismiss on behalf of themselves and Higbee, not RM Media or Youngson.   There is no indication that RM Media or Youngson, who are in the UK, have been served.   

While it will be fun to watch and it is impossible to predict what a judge will do, I do not think this will be a problem for Higbee or RM Media. 

Higbee’s motion to dismiss raises several solid defenses, including that they are not a party of interest to the copyright claim, that their communication was protected by New York’s litigation privilege, plaintiff did not incur damages, and that the plaintiff, who is a law firm, could not reasonably argue that they did not understand the contract, which is a Creative Commons contract.  Defendants just need to prevail on one defenses to win the motion to dismiss.  Plaintiff’s opposition is due in about 12 days.

Plaintiff is arguing that the language on RM Media’s site conveys a license for free and that the user’s failure to provide attribution is a violation of a contract, not a violation of copyright law.  In lawyer’s terms, they are saying the attribution is a violation of a convenant, not a condition.   It is a fact specific determination that will be largely based on NY state law.  The consumer claim essentially says that defendant’s demands are deceptive and violate section 349 of NY business code.   I doubt these claims will fly, and I also suspect that someone else, like Oscar Michelin, would have tried this approach if there was decent chance they would fly.

The outcome will not necessarily disrupt RM Media’s use of Creative Commons or enforcing their rights against those who do not meet the terms of the license.  If the judge rules in favor of the plaintiff, it may impact some of the pending claims in New York, but RM Media will likely be able to fix the problem going forward by tweaking the language on its page to make clear that attribution is a condition.

The complaint seems hastily prepared.   The case may be more about saying FU to RM Media and Higbee than it is about winning. 

Regardless, it will be interesting to see how RM Media handles being on the defense and what defenses they raise, assuming that they ever get served.   While it looks like RM Media has sued several infringers in the US, they have not been sued as far a as I can see.

 I hope this goes a few rounds.   More to follow.  I will post the pleadings online as soon as I figure out how to do that.

[icepick]

That is interesting. I’m looking forward to seeing the pleadings. RM is interesting to me because unless they find a willful infringer with deep pockets or they have someone in the US that can go to court for them (to testify, not advocate) if a defendant takes them all the way I don’t see them showing up for a trial and no testimony = no money = paper tiger for anyone who holds off a default and summary judgment.

[Ethan Seven]

I have checked a few times to see if anything has happened.   Crickets.  The judge has not ruled on the motion to dismiss filed by Higbee and the docket shows no record of RM Media being served.   

[Matthew Chan]

What is the name of this case? Is it one we have covered in another thread somewhere?

[Ethan Seven]

Yes.  I posted a link in that thread to this one  just in case anyone wants to read my analysis. 

[Legaleagle1]

I'm an attorney and wanted to respectfully disagree with the analysis on this thread.  I've read some of the other Higbee threads and have read the NY complaint and the memo of law opposing the motion to dismiss.  It will be interesting to see how this works out, but judges rarely grant motions to dismiss early in lawsuits.  It deprives the plaintiff their day in court.  In this particular case, the law firm advances a fascinating legal argument and exposes Higbee and Youngston and their business practice.  Please keep up the reporting and have some faith, the New York law firm's pleadings come across as credible and legit.

[Matthew Chan]

I certainly welcome informed opinions from legal minds to the forum. I am good with some level of debate and disagreement. It goes to show that interpretation of law and cases are not absolute. The best we can hope for is consensus even if we all agreed here because there is always someone take can have a differing opinion or a different perspective.

Welcome aboard.

I'm an attorney and wanted to respectfully disagree with the analysis on this thread.  I've read some of the other Higbee threads and have read the NY complaint and the memo of law opposing the motion to dismiss.  It will be interesting to see how this works out, but judges rarely grant motions to dismiss early in lawsuits.  It deprives the plaintiff their day in court.  In this particular case, the law firm advances a fascinating legal argument and exposes Higbee and Youngston and their business practice.  Please keep up the reporting and have some faith, the New York law firm's pleadings come across as credible and legit.