Messages

121

UK Getty Images Letter Forum / Re: Feel sick! Lovely Email from Getty! Please help

« on: June 22, 2018, 01:46:04 PM »

Actually, we do tell people to negotiate and settle the matter if people need certainty and closure.  In a broader sense, the numbers that are stated in the letters are overinflated and designed to have wiggle room.

However, rightfully or wrongfully, many victims do not want to pay anything but a low or zero fee. By virtue of that, they are forced into a more aggressive non-payment position which includes "ignoring" or "going dark".

And even if one were to stand their ground, it is always good to have a response on file of why you refuse to settle. Many times if the terms of settlement is unreasonable or disproportionate, the other side will compromise. However, this is all premised on someone's ability to negotiate and take the risk to take a stand.

The best advice for Copyright infringement claims is the same advice where you are faced with any other form of legal claim for damages. If the claim is legitimate, then your lowest cost option is to reach an out of court Settlement. Contrary to advice on here, I would suggest you argue your case well and certainly challenge quantum , however try to seek an out of court settlement. jaw jaw is better than war war.

122

UK Getty Images Letter Forum / Re: Extortion Letter from PicRights UK

« on: June 22, 2018, 01:39:40 PM »

Generally speaking, PicRights is not a copyright owner. They represent copyright owners.   As such, Picrights cannot sue anyone, their clients possibly can.  The most that PicRights can do is to facilitate a connection between a lawyer and their client to legally file lawsuits.

And broadly speaking, lawsuits don't just show up and go straight to the judge. There is a tedious, time-consuming process to do this. And "bad" lawsuits have a way of bouncing bad things back to the filer.

No one can give you a simplistic answer of what to do.  Broadly, you can negotiate it down to settle the matter. Or you can stand your ground with or without a written explanation of why you won't pay. Or you can go dark and ride it out.

But rest assured, what they communicate will be skewed against you and in their favor. And it will be reliant on most people's legal ignorance.

123

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 21, 2018, 08:00:09 PM »

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.

124

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 21, 2018, 07:14:23 PM »

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. 

125

Getty Images Letter Forum / Re: Pixsy demand email

« on: June 21, 2018, 06:51:52 PM »

Congratulations on having your case resolved.  My comments inline.

It's quite possible that Pixsy is playing some sort of "long game" here and will come back at me with this claim again or even a new claim. However, I'm hopeful this is the end.

That is paranoid thinking. There is no advantage for them to lie to you in this manner. If it is dropped and they told you, be happy and move on. It is almost as if you are asking for the to revive whatever case they had against you.

 My case would be an example that shows you're better off responding to the claim and acting in good faith. No matter who you are dealing with, don't let the threats of a bad actor control the actions you need to take when a claim of copyright infringement is made against you.

I generally tell people to respond and make strong arguments if there are facts that help your position. People who want to stay silent generally let the other side assume the worst. I have found that most victims have a very difficult time understanding this basic concept. They can't understand the concept of discussion, debate, and standing by your position to defuse the situation  vs. trying to beg and "convince" the other side to drop the case. Most of the time, people don't announce they will drop the case. They just quietly go away.  Nearly everyone wants the matter to be black and white which is almost never the case and leads to people foolishly settling when sometimes they don't need to.

The only actions I took were those required by law when a DMCA takedown notice is given. I wrote no more than a total of 10 sentences stretched across three emails. I made no mention in my emails of the claims I knew were false nor of the "solutions" Pixsy was offering because it's all irrelevant in a formal takedown process. My replies were a reflection that I "educated myself", knew the copyright holder's responsibilities, and knew my responsibilities. I think the rep from Pixsy knew (because I knew) the right thing to do legally and for their client was to move on and be satisfied that I promptly removed the image the user had uploaded to the website.

I would agree with your statement. Getting smart and giving informed responses go a long way to defusing any potential claims. They may never publicly admit it.  But having a good informed, educated, and firm response often goes a long way to "lessening" any claim and impetus to pursue certain parties.

I have seen so many people do absolutely dumb things like copy template letters from the Internet and send them in.  It does nothing except show the sender of that letter how lazy and uninformed they are. They think the recipients of the letter will sudden by stopped in their tracks by a widespread template latter. 

126

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 19, 2018, 05:18:14 PM »

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.

127

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 18, 2018, 06:08:56 PM »

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?

128

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 18, 2018, 05:57:09 PM »

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.

129

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 18, 2018, 05:29:15 PM »

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.

130

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 18, 2018, 05:21:49 PM »

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.

131

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 15, 2018, 04:16:52 PM »

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!!!/

And  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.

132

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 13, 2018, 04:30:03 PM »

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.

133

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 13, 2018, 03:52:37 PM »

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.

134

Higbee Associates Letter & Lawsuits Forum / Re: Copyright Registration Question

« on: June 13, 2018, 03:48:40 PM »

I am not claiming that the Higbee operation is engaged in that kind of intentional, widespread copyright registration misrepresentations. Mistakes, intentional or not, do occur.  What I am saying is people need to be skeptical and scrutinize everything.

And if I were a pro se defendant, I would absolutely make certain written requests and demands from the other side. I am not going to just wait for a lawsuit to demand certain things.  And I can tell you from experience, there is oftentimes unseen impact when reasonable requests and demands are put in writing.  It shows responsible diligence even if the opposing side does not comply.  This bullshit line that "I will show you if it gets to lawsuit" is very much something that someone knowledgeable would throw back into their face in court.

Most people want "absolute" and "definite" results in their actions. If people need that, then the game is over for every extortion letter that comes through.

People better get smart or they will get walked on. Robo-lawyering is what this is all becoming and it is here to stay.

You are correct that you cannot view the deposit copy (i.e. the photos that were registered under that certificate number) without paying a fee. But with that said, it would be an exceedingly dangerous game for Higbee to be sending out registration certificates for photos not registered under that certificate number. All it would take would be one person to call his bluff and then he would likely be severely reprimanded or even disbarred for fraud. My guess is that his clients have enough stuff that is legitimately registered that it would be pointless for him to take such an incredible risk by putting it in writing and sending it out by the hundreds. My point is, there are a lot of ways to legitimately mitigate or even beat these guys in the negotiation phase. Best not to waste time on something that will likely bear no fruit like challenging the registration. Or I guess you can wait to find out if it's legit when they sue you.

135

Higbee Associates Letter & Lawsuits Forum / Re: Judge Awarded Higbee & Associates $48,000 for Use of 1 Photo!!!

« on: June 13, 2018, 03:37:57 PM »

The paper judgment is "real" as any piece of paper is "real" but it may not be collectible and it is negotiable after the fact.  It ain't like that $48K is actually set in stone if someone is determined to not pay. In many cases, you can't squeeze blood from a rock. Judgments are settled quietly all the time by people who are knowledgeable.  But most average folks don't know it.

Did anyone ever confirm if this real or not???