ExtortionLetterInfo Forums

ELI Forums => Higbee Associates Letter & Lawsuits Forum => Topic started by: icepick on October 23, 2017, 04:42:11 PM

Title: Useful Info For Anyone Defending Sadowski & Higbee
Post by: icepick on October 23, 2017, 04:42:11 PM
If anyone is defending against a Higbee Sadowski case the Backchina case currently pending in Texas may be useful to follow. Defendant recently filed their motion for summary judgment for fair use and Sadowski provided his evidence of sales, of course most of them are well below Higbee's extortion demands and he doesn't have much proof of payment. Any wagers on Higbee's next move? I'm thinking he has to be close to folding on this case since the sales evidence came up so weak. Another swing and a miss.

Sadowski Sales Statement
https://drive.google.com/open?id=0B6ZBMFkSS0ADU1U0QmNqQUdDVFk

Sadowski Invoice
https://drive.google.com/open?id=0B6ZBMFkSS0ADVUtLODd6Rm1qTEk

Defendant's Memo for summary judgment
https://drive.google.com/open?id=0B6ZBMFkSS0ADT1BqYm1FaUNSNW8

Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: turbkaos on August 23, 2018, 10:41:22 PM
what was the outcome of this case?
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 24, 2018, 03:24:52 AM
The last recorded update (https://www.courtlistener.com/recap/gov.uscourts.txsd.1431977/gov.uscourts.txsd.1431977.27.0.pdf) was that summary judgement was, unsurprisingly, denied.

I say unsurprisingly because if you read through their motion for summary judgement, they tried to make a very flawed fair use argument, and the judge's opinion shows the grounds on which it failed.

The arguments that BackChina made are ones that are often thrown around as supposedly viable fair use defences centered on the commonly misunderstood news reporting exemption and, when I read them myself, I saw how shot through with holes they were, so it was no surprise to me that BackChina failed on three out of the four-point fair use tests.

Also, anyone reading the judge's opinion will note they did not touch on BackChina's claim that they were not the persons who uploaded the photograph. If you search the US Copyright Office's designated agent directory (their database of DMCA agents), there are no entries for either BackChina or 21uscity.com - and, as of moments ago, the 21uscity.com website still hasn't posted information to the required standard either, so it's likely only a matter of time before they get hit with an infringement claim again, since their site is using many photographs that are plainly copied from other news reporting outlets.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: icepick on August 24, 2018, 11:51:41 AM
I think the judge's comments on page 4 about how insufficient the evidence of valuation provided by the plaintiff so far is interesting. The issue is almost always damages for every case people come here with, not liability.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 24, 2018, 12:40:29 PM
I think the judge's comments on page 4 about how insufficient the evidence of valuation provided by the plaintiff so far is interesting. The issue is almost always damages for every case people come here with, not liability.

Seems there was an Order made on this case just two days ago, but it's not accessible without a PACER login. I'll hazard a guess that, following the dismissal of the summary judgement request and the failure of the fair use claim, the parties went back to the negotiating table and settled the matter out-of-court.

At any rate, the licensing value of the photograph rarely comes into play when a claim of statutory damages is at the heart of the petition; it would be down to the judge/jury to decide where the needle stops in the $750 - $30,000 range that the law prescribes; having invoices and corresponding payment records are useful tools to bolster arguments for valuation in actual damages claims, but only peripherally useful in cases like this one.

With that said: my opinion is that I've never seen an invoice anything quite like the one Sadowski claims he sent to the New York Post for the specific photograph at the heart of this case. My own invoices are far more specific and include the license type, duration, territorial restrictions, exclusivity clauses and so on, as well as detailing who my company contact is, if there is any corresponding purchase order number or client/vendor ID and so on. I can also, without fail, lay my hands on corresponding bank records that will show payments of invoices, usually within a few days or weeks of the invoice being presented to the client.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on August 24, 2018, 01:52:34 PM
Not knowing what the initial demand was, this looks like a pretty good win for Higbee.   He gets a win on the fair use issue, which looks good, and he beat back what was the defendant’s best argument in defense of the use (which is a safe assumption seeing that the defendant filed a motion for summary judgment on fair use).

The defendant has probably paid $10,000 in legal bills to answer,  file the motion  and the reply.   Now the defendant will likely have to pay a multiplier of Sadowksi’s licensing fees, plus Higbee’s attorneys fees and court costs, which is probably another $10,000.

If Back China is the serial infringer that DavidVGoliath says, it is very odd that they did not settle this claim fast.  Either plaintiff was asking for big money or their attorney was giving them bad advice. 

I logged into PACER, the last entry is scheduling related. 
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 24, 2018, 04:59:05 PM
If Back China is the serial infringer that DavidVGoliath says, it is very odd that they did not settle this claim fast.  Either plaintiff was asking for big money or their attorney was giving them bad advice. 

BackChina's own motion for summary judgement cites that Sadowski's opening demand, via his lawyer, was for $2,500. As you say, they're now likely on the hook for multiples of that sum in their own defence fees alone. If the case hasn't settled yet, then the defendant is either hoping to drain Sadowski's finances/will to pursue this, or they're in so deep in that they're pushing through in the hope of a win where Sadowski has to cover their costs, in part or whole.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 24, 2018, 07:58:34 PM
Quote
Now the defendant will likely have to pay a multiplier of Sadowksi’s licensing fees, plus Higbee’s attorneys fees and court costs, which is probably another $10,000. 

How do you figure that?  You can either sue for actual damages or statutory damages, not both.  Submitting a copy of an invoice is not proof of payment.  I can make up an invoice for a million dollars.  Does that prove I got paid that?  A receipt from from the NY post or check stamped by the bank from the NY Post is proof.  Gimmie a break.  The going rate for licensing an everyday photo by the NY Post is around the $250.  No fucking way did the Post pay $5,500 for a photo of a car surrounded by snow.  If I were the lawyer for Black China I would to the NY Post and get document proof how much Sadowski got paid for that license and submit to the court that Sadowski submitted fraudulent documentation to the court. 
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on August 25, 2018, 01:35:52 AM
Quote
How do you figure that.  You can either sue for actual damages or statutory damages, not both.

Judges have wide discretion on statutory damages.  Judges frequently use a multiplier based on the licensing history and the intent level (Willful or unintentional).   So, they can say 3 times the license history if it is unintentional infringement or 10 times if willful infringement, plus attorneys fees and costs.  There is no set formula.

My guess is that there is more to the Saowski licensing history.   Judges have awarded him judgments of $50,000 and $30,000.  See
https://www.higbeeassociates.com/practices/copyright-law/    While these are default judgments, it shows what numbers judges can come up with.   

I am guessing Back China’s attorney did not understand fair use and gave them really bad legal advice.   Who knows.  Maybe they made the mistake of thinking Higbee would not sue.  Either way, Back China will probably end up spending 10 times the $2,500 offer that they rejected, not to mention the distraction and stress. 
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 25, 2018, 04:21:02 AM
No fucking way did the Post pay $5,500 for a photo of a car surrounded by snow.  If I were the lawyer for Black China I would to the NY Post and get document proof how much Sadowski got paid for that license and submit to the court that Sadowski submitted fraudulent documentation to the court.

I agree with your points and, if you read through BackChina's motion for summary judgement, you'll see that Sadowski's invoice to the NY Post is supposedly for the supply of eleven photographs in total, so $500 each.

$500 is a believable license fee for newsworthy images that the Post couldn't obtain from any other source. In my early years as a photographer, a local newspaper forgot to apply to have one of their staff photographers shoot a "Pussycat Dolls" concert. It was the first leg of their tour in the country so it was a big deal. The agency I was working with at the time was paid €625 for just one shot that ran as a double-truck in the paper along with their writer's review of the show, with my cut being 60%

Weeks later, their staff photographer and I wound up talking about how I didn't see him at the show. I told him how much I'd been paid for the shot, and he steadfastly argued that there was no way his paper would have ever paid that much for a concert picture. I just shrugged and said that my commission statement says otherwise.

Anecdote aside, It still bothers me that Sadowski's invoice has no line-by-line breakdown of the number of photographs supplied or license terms/restrictions for each image, let alone descriptors of the shots licensed.

The only leeway I'm prepared to cut Sadowski in this regard is that many creatives are absolutely hopeless at the business side of their craft, and simply don't know how to write up a robust licensing document/invoice. It's not something that's taught at college and university courses for the arts and, if a person has fallen into self-employment on the back of their hobby/passion, it's possibly not something they've ever been taught.

You can be a great photographer but, if you suck at running a business, you'll quickly find yourself out of your depth or worse... a lack of structure to your business operations can leave you hamstrung in situations where you're asked to provide evidence of having done something, like having licensed eleven photographs to a newspaper.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 27, 2018, 11:21:03 AM
I think you guys are getting way ahead of yourselves when it comes to the costs of this.  You don't if Black China's lawyers are doing this case pro bono.  Maybe they want to take a firm stand against copyright trolls?  And although the judge ruled against Black China in summary judgement, there was a lot of language against Sadowski that I think the judge is signaling his case for the money he's asking falls way short.  If I was Black China's attorney I would go for broke and argue that Christopher Sadowski is using the Federal court as a collection agency.  He's filed over 70 cases in the last three years using multiple attorneys.  I would get the proof from the Post of what he gpt paid for that photo and it comes no where near his original demand of $2,500 and argue how the court system will allow this extortion to continue?  Does it look Sadowski would win?  Technically yes.  But, I see the award being a lot closer to $750 or between $200 and $750.  Multipliers would not come close to applying in this case because evidence Sadowski supplied is too flimsy.   
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on August 27, 2018, 02:59:40 PM
I guess it is possible that they are using a friend/family member as a pro bono attorney for this case, but that would be surprising for a site of this size.

There are a lot of subjective components of these cases.  My guess is that a judge would think $2,500 is a reasonable eoffer on timely registered image used by a serial infringer.   But this can go either wat.     At the end of the day, as long as the plaintiff’s conduct is not unreasonable, the law instructs the court to award the copyright holder attorneys fees and costs. 

If judges have been awarding Sadowski default judgments for $50,000 and $30,000, those judges are seeing value there.

I will enjoy following this.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 27, 2018, 04:04:24 PM
Quote
If judges have been awarding Sadowski default judgments for $50,000 and $30,000, those judges are seeing value there.
 

What does a default judgement have to do with the factors of this case?  in this case Black China responded to the summons and complaint issued by the plaintiff and is putting up an affirmative defense of "fair use" as they see it.  A default would the defendant did not respond to the complaint leaving themselves open to a judgement against them.  It's a totally different animal   

Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 27, 2018, 04:24:23 PM
This judge's opinion on fair use raises a question in my mind.  Suppose the photo was a a smoking car tailpipe into a bank of snow, with smoke barely escaping he exhaust.  Wouldn't that be more descriptive to the text of the story?   
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 28, 2018, 02:35:11 PM
This judge's opinion on fair use raises a question in my mind.  Suppose the photo was a a smoking car tailpipe into a bank of snow, with smoke barely escaping he exhaust.  Wouldn't that be more descriptive to the text of the story?

It wouldn't matter how descriptive the photograph was with respect to the story/translation that BackChina posted on 21uscity.com; the photograph in question originally ran on the NY Post's website and thus was descriptive of the story i.e. "this is the car in which a mother and her children succumbed to carbon monoxide poisoning during a snowstorm"

The judge's opinion was that Sadowski's photograph was more factual as opposed to one involving a high degree of creativity but, even then, that was the only point of the fair use test that was upheld.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 28, 2018, 05:09:06 PM
Okay, I see the point.  Although Black China lost 3 o 4 points, 2 of the points Sadowski won were screaming victories.  Sadowski didn't have his shit together either.  I still thin the judge was wrong in not considering a Chinese publication of an English story not transformative.  Whatever!  This case I think will settle out and not go further.   
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 29, 2018, 04:14:09 AM
I still thin the judge was wrong in not considering a Chinese publication of an English story not transformative.

Any translation of the text from the original English news article to a Chinese language summary would still be factual. No artistic transformation of the photograph occurred and, since the matter before the judge related to a claim of infringement of rights in the photograph only, that's the reason for not even considering the publication on 21uscity.com as being transformative.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 29, 2018, 10:22:20 AM
I miswrote the following:

 Although Black China lost 3 o 4 points, 2 of the points Sadowski won were NOT screaming victories. 
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: DavidVGoliath on August 30, 2018, 04:09:25 AM
Although Black China lost 3 o 4 points, 2 of the points Sadowski won were NOT screaming victories.

It's actually the contrary: Sadowski alleged infringement and BackChina countered with a claim of fair use (an affirmative defense) and was BackChina who had their defense dismissed after failing three out of the four tests. It's not like each the four-point tests has hard pass/fail thresholds, so Sadowski didn't need to have a screaming victory of any kind - the judge's opinions of the facts relating to this specific case was all that mattered.

IP Lawyers will tell you that every single fair use defense is judged solely on the facts of the particular case i.e. there is never a bright line standard where you can unequivocally state "X is fair use, but Y isn't" - because the four-point test for fair use has masses of leeway for interpretation, you could even have the same case with identical facts tried by two different judges and wind up with very different opinions.

Let's say you had a judge that was a photography enthusiast as a hobby; BackChina might also have lost the one point conceded to them, because a judge knowledgeable about the technical aspects of photography might counter that Sadowski's picture - although a depiction of a factual scene - was also a wholly original work whereby Sadowski applied his skills and experience to determine how and when to make the photograph, including (but not limited to) his choice of camera, lens, focal length, aperture, shutter speed, ISO value, framing of subject, placing of light sources, and other variables honed through knowledge of his craft.

If BackChina is being represented pro bono or by counsel that they are personally connected to, then I agree that it is now perhaps in their best interest to settle the matter, though I'm sure it will cost them a lot more than $2,500 to do so, now that Sadowski has incurred filing fees and other costs in making his claim.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on August 30, 2018, 09:58:52 AM
I think you give Sadowski too much credit.  He's a troll who has filed over 70 cases in the past three years.  No doubt he's making more money on demand letters and lawsuit settlements than he's getting licensing his photos to the NY Post.  I would've made that as part of discovery.  He's using the Federal court as his collection agency.  That's pertinent information the judge needs to know.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: A Lawyer on September 04, 2018, 06:10:03 PM
This is a very interesting case, and I am surprised it hasn't settled yet. If you look at the defendant's website it looks like it is all reposted content and a ton of photographs, which I am guessing are taken from other souces without a license like the Sadowski photograph. Technically, since their motion was merely denied, they could still prevail at trial, however, they would likely be precluded from arguing fair use to the jury. If Sadowski were to move for summary judgment and win or win at trial that would essentially destroy BackChina's business model. Then there would be a public record of a court ruling that BackChina's business model is not protected by fair use and is an actionable copyright infringement. If I am them, I would probably want to settle as quickly as possible to avoid that possibility. Outside of fair use, I am not sure they have any other defenses. As it stands, even on the denial of their fair use MSJ, they are probably going to be facing a host of new infringement suits now from potential copyright holders who do some research and find that ruling.

I think you give Sadowski too much credit.  He's a troll who has filed over 70 cases in the past three years.  No doubt he's making more money on demand letters and lawsuit settlements than he's getting licensing his photos to the NY Post.  I would've made that as part of discovery.  He's using the Federal court as his collection agency.  That's pertinent information the judge needs to know.

I highly doubt any of that would be admissible evidence. Unless one of those 70 lawsuits involves this photograph or this defendant it would be irrelevant. I am not familiar with the nature or merits of all of Sadowski's lawsuits, but if they are legitimate infringements (as it appears this one is) then he has every right to pursue the legal remedies available to him. A judge may or may not find that distasteful but will most likely disregard that information anyway. In my experience, when litigants attempt to make personal attacks against the other side that have little or nothing to do with the ultimate merits of the case, all it does is piss off the judge and reflect poorly on the party bringing it up in the first place. Judges hate personal attacks and generally view them as a waste of time. It's also seen as a pretty obvious sign that you aren't confident in your case and don't have a very strong argument on the merits.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: UnfairlyTargeted on September 04, 2018, 06:36:15 PM
Or, the fact that there are 70 cases means this guy is another POS image seeder.  How else would you have 70 defendants to sue in court plus hundreds of others that settle before going to court if you haven't been off spreading your image around in deceptive actions to trap people into using them?

That's what I'd look into and bring to the attention of the court.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on September 04, 2018, 09:07:21 PM
@ A Lawyer

You don't know what you're talking about because pointing out a plaintiff's scheme to extort money from people using the inadequacies of copyright law in internet age is very relevant information.  Using the Federal courts as collection agencies in the scheme is something judges frown upon as well.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on September 05, 2018, 11:03:51 AM
@king Kendall.  While you think a judge may share your point of view, it is highly unlikely/ wishful thinking.      It is easy to see why “A Lawyer” is correct.    Judges and the clerks, who do the research for judges, know how many times a person litigates and they don’t care.   He has gone against opposing attorneys who know way more about this stuff than you or I and none have pursuaded a judge that the number of cases he files is noteworthy.

He is a photo journalist for a established and credible publication.  He not only has a right to use the federal courts to protect his work, it is his only available judicial forum.   
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on September 05, 2018, 11:14:37 AM
Or, the fact that there are 70 cases means this guy is another POS image seeder.

Let me start my saying congratulations to UnfairlyTargeted for not mentioning Tom Schwabel in a post.  Huge step.   

Now if we can just disabuse you of the silly notion that everyone who enforces their copyrights is seeding images.  For the love of God, get over it.    Sadowski is photographer for the New York Post, it should be quite obvious that he does not need to seed his images.  They probably go viral every day. 
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on September 05, 2018, 12:08:45 PM
Sadowski is NOT a photographer for the NY Post.  Get your facts straight.  He's a freelance photographer that licenses his photos to news organizations.  And he doesn't make enough money doing just that.  He makes more money via extortion who are quick to pay up after getting a demand letter.  Wake up and smell the coffee!   
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: UnfairlyTargeted on September 05, 2018, 07:30:23 PM
Ethan, don't worry, I haven't fallen sick.  I'll mention him again soon.  Gotta keep the shitty posts about him at the top of his search results so eventually the felon can't extort a piece of dog shit off the sidewalk, let alone sell a single legitimate photo, which I doubt he's ever actually done.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: A Lawyer on September 05, 2018, 07:36:39 PM
@ A Lawyer

You don't know what you're talking about because pointing out a plaintiff's scheme to extort money from people using the inadequacies of copyright law in internet age is very relevant information.  Using the Federal courts as collection agencies in the scheme is something judges frown upon as well.

Just voicing my perspective based on my experience. You are perfectly free to disagree with my opinion. Readers can decide for themselves which advice is more pertinent to their own particular situation. Part of the reason that I started posting on these boards is because I have found a lot well-meaning, but seriously misguided advice. I wanted to offer an alternate perspective in the hopes that people who are targeted by these photographers get the best information possible so they can make the right decision for their own situation.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on September 06, 2018, 12:18:28 AM
Sadowski is NOT a photographer for the NY Post.  Get your facts straight.  He's a freelance photographer that licenses his photos to news organizations.  And he doesn't make enough money doing just that.  He makes more money via extortion who are quick to pay up after getting a demand letter.

Whether the Post pays their photographers as employes or contractors is irrelevant.  A Google search shows about 500 photo credits on the NY Post.   If he shoots 500 plus photos for the Post, he is a photographer for the Post.   The larger point is that he is a credible photographer with an established market for his work.

There is nothing in the statute or case law that says a copyright holder’s right to protect their rights diminishs if their enforcement revenue exceeds licensing revenue.  Until you can show a single judge who shares your fantasy, your theory should be recognized it for what it is, wishful thinking.

There is no statute of limitations that limits the amount of money a person can accumulate from enforcement or the number of times a person can use the courts to protect their property.

As long as people are infringing on their work, you can count on him and his NY Post buddies to keep suing.  No judge is going to blow a whistle and penalize them for excessive enforcement, especially if they are making efforts to resolve claims outside of court.

You can argue the images are not worth his demand amounts, that is part of every copyright case.   But you cannot successfully argue a person has made too much money from enforcement.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on September 06, 2018, 12:24:03 AM
Ethan, don't worry, I haven't fallen sick.  I'll mention him again soon.  Gotta keep the shitty posts about him at the top of his search results so eventually the felon can't extort a piece of dog shit off the sidewalk, let alone sell a single legitimate photo, which I doubt he's ever actually done.

Your persistence is only exceeded by your abundant colorful expressions.  You are a good sport
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on September 06, 2018, 10:53:49 AM

You can argue the images are not worth his demand amounts, that is part of every copyright case.   But you cannot successfully argue a person has made too much money from enforcement.


You do know the name of this website, right?  Extortion Letter Info.com  That was a nice speech on behalf of the copyright troll you choose to defend.  I speak in favor of the victims of this scam photographers take advantage of.  Are they within there rights as copyright holders.   Yes they are.  I'm not taking anything away from that.  The best photographers in the world don't sit in their pajamas doing reverse image searches looking for hits for their images so they can send demand letters to cash in.  No, they live on their actual work as a photographers.   The copyright troll isn't in that class.  They take pictures of a parked car or a garbage can, license to a newspaper for $150 dollars or so.  But wait there more.  They can send demand letters for $8,000 dollars and get a settlement for half of that or even less and still make good.  So don't put these trolls in a nobility class of honest aw shucks photographers just protecting their rights.  It doesn't wash here! 
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on September 06, 2018, 01:35:39 PM
Kendall, you are confusing two issues. 

I have no objection to complaining about the system or the over-reaching of copyright holders.  I will gladly join you when I see it happen. 

My problem is with your making statements like “judges frown on that” when you present no basis to support it other than you wish it were so.   It is a disservice to anyone who comes here looking for help or useful information.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: kingkendall on September 06, 2018, 02:55:22 PM
Then watch this judge reaction to the scam and tells me how he feels about this.

https://www.youtube.com/watch?v=m37QqmBU7Dc&t=98s
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Ethan Seven on September 07, 2018, 01:30:00 AM
That reply leaves me with the following options:

1.  You don’t know that the facts of that infamous case are in no way analogous to the topic of this thread
2.  You know the facts and you lack the analytical skills necessary to spot at least 10 reasons why the judge’s comments are not relevant to this thread.
3.   You know the facts of that case and think I or other readers do not know them.
4.  You know the facts of that case and think I or other readers cannot spot the obvious dissimilarities.
5. You just like posting crap to get a reaction (which I think is called trolling, ironically)

You don’t need to answer which it is.  This thread is a dead horse.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Robert Krausankas (BuddhaPi) on September 07, 2018, 11:15:17 AM
Without "defending" anyone, I don't think you can compare  the pron case to what is generally discussed here, that case was a completely different beast, in which the trolls went to new levels to deceive and extort monies from unsuspecting people. I the 10yrs of the existence of ELI I can think of maybe and I say maybe one instance where a photographer "may have" seeded images, and if so I don't think it was done with the intention of filing copyright suits, I think that idea came to the troll later down the road, when he realized i mighty be a good idea to send letters.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: UnfairlyTargeted on September 07, 2018, 01:26:29 PM
I don't think you can compare for different reasons.  The porn video at least had value.  It took time and creativity to make it.  Probably money too.  It was sold, not given away.

Looking at our seeder Schwabel, he GIVES his work away, changes rights back and fourth between copyrighted and creative commons, spreads his work around on free image sites and social media, and his work has NO value.  It isn't original.  It's all copies of something that a real photographer did.  How fucking hard is it to go take a picture when you've been spoon fed to go to this or that place, place your camera in this exact spot, and press a button?  Why do you think people are using his work taken from free download sites?  They're using it because it looks like something that should be free.  Like a cheap knockoff of a designer handbag - when you need something cheap that looks expensive.  If I want the real thing, I'd go pay for it.

Then look at all of his buddies on Flickr.  Half of these no-talent hacks would claw at the chance to give away their work just to say they've "professional" or "published".  They sit around and have a daily online orgy and jerk-off fest getting off from exchanging likes with each other.

So you've got a guy that has work with no new creativity that goes around deceptively spreading images to make people take them.  That's worse than the porn case.  At least the porno had some creativity and value.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Matthew Chan on September 08, 2018, 06:21:21 PM
Would you agree that sometimes there is a fine line between telling a narrative vs. a "personal attack"?

For example, someone shoots and kills another person with a gun. 

Someone says "He shot the woman in cold blood". Clearly a subjective interpretation but is that really a personal attack?

In my limited experience, lawyers talk about narratives ALL THE TIME! They often hinge upon subtle words and phrasing vs. blunt and flamboyant words and phrases.

Narratives matter. The court system is full of flawed human beings.  They are not objective, fact-driven robots only.  Judges are "judging" and narratives matter whether they want to admit it or not. Facts matter but they can be interpreted in different shades. I think many letter recipients lack the insight or understanding that narratives have sway and influence in the communication process.

In my experience, when litigants attempt to make personal attacks against the other side that have little or nothing to do with the ultimate merits of the case, all it does is piss off the judge and reflect poorly on the party bringing it up in the first place. Judges hate personal attacks and generally view them as a waste of time. It's also seen as a pretty obvious sign that you aren't confident in your case and don't have a very strong argument on the merits.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Matthew Chan on September 08, 2018, 06:32:37 PM
Just to be clear, I acknowledge that there are bad actors who probably do seed the Internet to profit from infringers. However, I believe it is a very small portion of parties who do that sort of thing.

I wrote elsewhere, I could post every photo I have taken and I would probably starve to death hoping someone would "infringe" upon them. Just because you put it out there, it doesn't mean people will come.

There are more extortionists who take UNFAIR ADVANTAGE of the system, than actual seeders. Nick Youngson and RM Media come to mind. That is a gamed system that he and Higbee are currently taking advantage of with people's ignorance of Creative Commons system.

Quite frankly, I have no love of copyright extortionists, but it doesn't blind me to the fact that piracy is quite rampant which gave birth to the whole copyright extortion industry.

I think if we want credibility to our defense opinions and viewpoints, we must not embrace unprovable conspiracy theories. Now, if you don't believe that, all we can do is agree to disagree.

But I just don't believe that there is an intentional seeding by most parties. There may be unintended viral effects of some images because of the nature of their work.

Or, the fact that there are 70 cases means this guy is another POS image seeder.  How else would you have 70 defendants to sue in court plus hundreds of others that settle before going to court if you haven't been off spreading your image around in deceptive actions to trap people into using them?

Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Matthew Chan on September 08, 2018, 06:37:09 PM
Sorry, I just had to say, I laughed when I read your mention of Tom Schwabel. Nice to see a bit of humor in these forums.  ;D

But I do agree that "intentional" seeding is generally a rare thing. It is more of a case of virality or piracy (intentional or not) that occurs.

Let me start my saying congratulations to UnfairlyTargeted for not mentioning Tom Schwabel in a post.  Huge step.   

Now if we can just disabuse you of the silly notion that everyone who enforces their copyrights is seeding images.  For the love of God, get over it.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Matthew Chan on September 08, 2018, 06:48:14 PM
Glad to have you here and offering your insights. We don't always have to agree to get along.

Oscar isn't out here as often anymore so having some legal voices (even anonymously) is a good thing. Different voices represent different interests, different venues, different expertise, or different life experiences.  All can be true simultaneously.

The end reader does have a challenge synthesizing all the various viewpoints being shared. I think we can all agree that ultimately, the end letter recipient has the responsibility and burden to choose the course of action and insights they deem most appropriate for them.

It my hope that with the spirited debates and exchanges, a greater wisdom prevails that supercedes any one person including myself. 

Just voicing my perspective based on my experience. You are perfectly free to disagree with my opinion. Readers can decide for themselves which advice is more pertinent to their own particular situation. Part of the reason that I started posting on these boards is because I have found that is a lot well-meaning, but seriously misguided advice. I wanted to offer an alternate perspective in the hopes that people who are targeted by these photographers get the best information possible so they can make the right decision for their own situation.
Title: Re: Useful Info For Anyone Defending Sadowski & Higbee
Post by: Matthew Chan on September 08, 2018, 06:57:08 PM
Robert often has a better memory than me of the last 10 years worth of posts. It IS important to know that Robert is correct. We have discussed the possibility of intentional seeding but it is the rare instance where we directly accused someone of it.

Generally, we found that there was an unintended benefit of image virality and piracy for some photographers. Some more than others.

In the 10 yrs of the existence of ELI I can think of maybe and I say maybe one instance where a photographer "may have" seeded images, and if so I don't think it was done with the intention of filing copyright suits, I think that idea came to the troll later down the road, when he realized i mighty be a good idea to send letters.