Messages

136

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 13, 2018, 03:32:57 PM »

Yes, we have seen it.  It was an interesting article.  Of course, Higbee got in his quotes which serves his narrative which I don't agree with.  If things were so clear and obvious, there would be little need for an ongoing, relentless extortion letter campaign calling, begging, pleading, threatening, cajoling, and manipulating people to settle.

Has anyone seen this article from Fast Company? It says clients pay to use Higbee's "proven" letter templates, and they then pay Higbee 50% of all settlements.

https://www.fastcompany.com/40494777/here-come-the-copyright-robots-for-hire-with-lawyers-in-tow

137

Higbee Associates Letter & Lawsuits Forum / Re: Prepared Food Photos - Small Claims Court

« on: June 13, 2018, 03:24:48 PM »

Using small claims court for supposed violation of "subscription service" is entirely a sham. But defendants actually have to call it out for what it is or they will get rolled over. If I was a defendant, I would file a countersuit while demanding they provide evidence that a "subscription service" is in any way involved.

The kicker here is that the plaintiff is not suing in small claims for anything copyright related, as that is a federal gig, they are dragging people into small claims, stating that the defendant used / misused the subscription service offered without paying the subscription fee... Their claim is likely one of: these im ages are only available through our subscription service, so defendant must have have figured out a way to get to the images without paying.. Judges need to know that these images were once available on multiple sites for purchase and download, and have been removed along with purchase histories..

Playing it this way saves the cost of filing a federal suit, hiring a copyright attorney, etc, etc...

138

Higbee Associates Letter & Lawsuits Forum / Re: Prepared Food Photos - Small Claims Court

« on: June 11, 2018, 06:09:38 PM »

Yes, it is appropriate to reach out the plaintiff. I would do it in writing. And if they don't respond appropriately, I would keep a record of their response or non-response.

It is quite "creative" to use small claims court to collect on copyright infringement issues. Very low bar of entry.  Judges are typically not knowledgeable on copyright matters.  People defending themselves in small claims court have the burden of explaining the judge what this racket is all about.

I advised a defendant to print out several ELI posts, prepare a presentation, and submit it as part of their defense that the plaintiff is inappropriately and under false pretense using small claims court to resolve a copyright infringement matter.

Should I snail mail him requesting he tell me what photos as I am not aware of stealing his photos?  I paid hefty to Getty a while back and learned my lesson so removed anything I thought I may not have purchased and now only use 123rf.com.

Is contacting the plaintiff appropriate to get more information?

139

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

« on: June 11, 2018, 06:02:38 PM »

I blame the inept and dysfunctional management of the US Copyright Office. This is an ongoing complaint with no relief in sight.  There is to much room for hanky-panky by copyright extortionists to "misinterpret" and misrepresent their supposed copyright registrations.

Sure you can get a number, but what does that really tell you?

My registration # is 123.  Sure, you'll even find a registration in my name for number 123.  But how do you know what photo or photos are included in it?  You don't.

For example: you "stole" my picture of my cat.  I have a registration # 123 and I'm going to sue you if you don't pay $1000 right now.  What I didn't tell you is registration 123 is actually for a picture of my goldfish.  No way for you to know.

140

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

« on: June 11, 2018, 05:59:30 PM »

I agree with you.  I am routinely skeptical of copyright registration claims especially a group registration. There is no easy or inexpensive way for anyone to verify the validity of a copyright registration of an image.  The US Copyright Office online system is badly antiquated and widely criticized.

A registration certificate and the registration database online prove NOTHING.  I could make up a whole song and dance about how I registered some photo and that registration certificate covers the photo, but unless you get something directly from the copyright office I wouldn't believe anything I'm told.  How often do people tell fibs about what is covered by their group registration of photos?  Probably all the time, and the only real way to find out is in court.

141

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 11, 2018, 05:53:46 PM »

My comments inline...

This makes me believe they are trying hard over and over again with their letters to get some type of response from you by an amateur "client resolution specialist".  They are probably trained to write the letters such that the chance of a received response is greater.  I imagine no response from the get go is the worst as they have to put a lot more resources to find out if they even have a case, and how could they be 100% sure this person does not have a license?  Higbee probably hires a bunch of lower paid employees with no real experience in the legal field and does a quick training and let's them draft these letters.  I bet his upper management reviews their performance over a few months to see how effective they are in getting people to fork over money and maybe even pay them commision based.  He probably doesn't even review these letters himself and doesn't get involved until a case is recommended for filing.  Let me also comment that I looked up the name of one of these "client resolution specialists" working at his firm and it looked like this person had a lot of non-legal experience in industry doing admin stuff prior to joining the Higbee racket.  Higbee probably wants to maximize ROI vs. paying a more expensive paralegal.  Anyone else think this is possible?

Absolutely correct. In Higbee's case, the first-responders are lower-paid, non-lawyers (whom I refer to as clerks) whom I believe are compensated by an hourly wage with a bonus incentive attached. Their clerks admit they are not lawyers and their job is to try to secure a settlement prior to "escalation". 

This is where their approach could really backfire on them if they haven't done their due diligence to find out who really owns the website and how that license was purchased.  This is maybe why they try so hard to get some type of response by drafting the letters the way they do.  No response maybe gives them to much risk for suing a company or person with little info that can be easily obtained.

Again, you are on point and insightful. Their letters are designed to be "overwhelming" and "definitive". However, the educated, experienced, and informed understand it is neither overwhelming or definitive. It is largely a fishing expedition. And make no mistake, the obedient, compliant, low-hanging fruit are the ones who are most victimized vs. the people who are committed, informed, and resistant.

For people who can dig deeper and learn mind tricks people play, to me it seems that letter just revealed a flaw in their approach that most people wouldn't catch.

Absolutely correct.

142

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 11, 2018, 05:45:31 PM »

Icepick makes a lot of great points here. Higbee and their ilk like simplistic-thinking victims who view things black and white. They are much easier prey to go after.

They hate out-of-the-box thinkers, fighters, and resistors.

It is possible, but it appears very counter-intuitive. Higbee wants people to send in a check and don't ask questions. The more time he spends on a case without getting that check equals his investment and risk of unpaid time going up. The last thing he wants is his target getting informed, independent (hopefully competent) legal advice. It certainly struck me as an odd addition to his letter and one I do not think he made of his own volition.

I've raised points on some of the rules Higbee may be skirting the edges of in other posts if you want more info, but the biggest gray area he faces is any kind of conduct involving "dishonesty, fraud, deceit or misrepresentation" is a potential violation in certain states he is licensed in, not all. It has no bearing if the communication is pre-litigation or not, it covers all conduct of any type at any time to anyone. A bar overseer reading his blustery letters without a disclaimer that you may want to consult an attorney since I'm threatening the end of the world on you could see an issue.

His letters also have him playing good cop/bad cop at the same time and that can create the impression to the recipient that he is giving them advice when he is their adversary. That confusion can be a perceived conflict of interest and another avenue of violation that an overseer would want him to clarify with the 'speak to an attorney' line.

It's just a theory. I will certainly watch Higbee's career unfold with great interest.

143

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 11, 2018, 05:37:32 PM »

I never said McCormack had any record of discipline. I said there were complaint letters sent to the State Bar about him. I know this because both Getty Images and McCormack himself stated it in writing in non-public documents we have. I am not going to elaborate on that except to say what we have was very legally obtained.

The State Bars I am familiar with do contact the lawyers and they generally are required to respond. And regardless of outcome, they do make an impact on the person being complained about.

I am not going to draw a straight line about why it works and the impact it has. The general public may not see the impact but it does have impact. If you think that official "adverse action" is the only thing that matters to a lawyer and it goes "nowhere", you are obviously not getting what I am saying.

Your comments continue to suggest you think ELI resistance is all about legalistic tactics and strategies. As so many ELI posts suggest, we don't limit discussions to the legal arena.

There are many things creative non-lawyers can do and have done successfully. But it always comes down to the person.

Attorney Timothy McCormack has no public record of discipline from the Washington State Bar, neither does Higbee (admittedly,  I only checked CA Andy he is admitted in about 10 states).

Usually state bar associations let the complaintant know the outcome of the complaint.  My guess is that if the complaintants were getting good results, they would be posting on this forum. Do you have any evidence or feedback that shows any adverse action was taken on a complaint to a state bar?

If a state bar reviews a complaint and finds no violation of the rules, my guess is that all similar letters received in the future go nowhere; the attorney probably does not even get made aware of them. 

144

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 08, 2018, 02:31:20 PM »

People with assets DO have unconventional tools, tactics, and strategies (some cringe worthy) to use but that is something I generally prefer not to discuss publicly because I think it will be taken out of context.  I keep certain things close to the vest.  People with assets typically are not the underdogs in many extortion letter situations so I am not as worried about those folks.

I have the good fortune of having had access to various people in various legal positions over the years. Some people will share things with me things that they would not otherwise discuss with the general public. Part of that is because I have more insights than the average bear on legal matters and procedures. Hence, they are more open with me.  The average non-lawyer with no street experience has low level of understanding which is why they get rolled over and they can only accept simplistic advice.

This is one reason why I keep telling victims to get educated. If they have a low-level understanding, the only information they can ever accept is low-fidelity advice.

 I have seen a bit of the underbelly of the legal system and its VERY HUMAN participants. I also know "how things work on the streets" which is very useful in many circumstance. 

I agree that arguing de minus is always appropriate as to limit damages.  Readers just need to know that it is not a defense to copyright infringement.

I am not sure if you are trying to infer that I said those with assets should not fight, but that is clearly NOT my position.  I think those with assets should produce a license or assert a valid defense if they have one. If they have neither, they should hire an attorney who can explain the risks and help them fight.

145

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 08, 2018, 02:15:17 PM »

Attorney Tim McCormack (who used to represent Getty Images), and a few other lawyers all left the extortion letter business because of a collective campaign of complaint letters to state bars and Attorney Generals against them over the years. Even Getty Images changed their ways because the Washington State Attorney General forwarded complaints to Getty Images for them to respond. I think it became a very annoying experience for them.

A few lawyers did not like that ELI readers were writing and complaining on this forum that specific lawyers were "extortionists" and that their names even APPEARED in a website named "extortionletterinfo" help motivate them to leave the business. Some lawyers like Higbee in California, Sanders in New York, and California lawyer Leslie Burns appear to have thicker skin and understand what they have to deal with being in the extortion letter industry. So, it doesn't run everyone off.

These actions we discuss cause a great deal of inconvenience and upset (collateral damage) to the would-be "threateners". Even the mighty Getty Images have changed their ways. Getty settlement demands are much lower than they used to be. We hardly hear from people complaining anymore. They didn't just change their ways because they one day decided to become nice guys. They changed because the collateral damage they experienced on several fronts took a toll on them. Again, I am not going to outline every single thing ELI discusses but suffice to say time has shown that a lot of our unconventional discussions have been very effective at pushing back.

Readers who immerse themselves into ELI readings will figure out that adopting a PITA (pain-in-the-ass) attitude in defending themselves as part of larger group will do much better than being a lone obedient follower.

I also am very skeptical about complaints to regulatory agencies having any impact on situations like this, other than making the attorney focus more on the claim.

146

Higbee Associates Letter & Lawsuits Forum / Re: Receive extortion letter from Matthew K. Higbee today - need advice

« on: June 08, 2018, 01:44:03 PM »

I don't think ELI has ever discussed criminal copyright infringements. It is generally beyond the scope of what we do. It is an issue I would punt to a lawyer.

However, the SOL for criminal copyright infringements is good to know. Thanks.

The statute of limitations is 5 years if the case is a criminal case of copyright infringement.

147

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 08, 2018, 01:38:43 PM »

NO, I do not believe there is a "formal defense" per se but as you say it is an argument to make when someone tries false inflate a value of an infringement. And it is also a perfectly legitimate settlement discussion point and defense. Making an argument does not require an agreement.

 In my view, it is applicable to situations where there is no copyright registration.  It is a fact that many infringements do not result in money demands because of the "de minimus" argument. "It ain't worth it".

And my "list of strategies" was meant to give some specificity of what I consider controversial and cringe-inducing. I did write a disclaimer.  ... keep in mind, I am not necessarily endorsing any of these strategies in themselves. Some are tools in a toolbox to be used surgically and strategically.

I am not going to get into all the ins and outs of what I think and how certain controversial tactics should be used. I don't get paid enough to write freely in detail and how and what I think. I keep threatening to write a book on the subject and maybe I will one day. Meanwhile, people who really want to know what I think either has to be a good friend in business or they will have to pay for my consulting time. But I stand by my assertions. I don't limit myself to "traditional" tactics. If I did, ELI would not have been born nearly 10 years ago.  ELI is living proof that unconventional tactics work in fighting back. Oscar Michelen supports ELI and continues to be a legal advisor because he saw early on how effective unconventional tactics worked.

And this whole notion that because someone has assets needs to bend over and take it up the rear is something I don't accept. It is a factor for consideration, not a determining factor. People who have assets can definitely fight back too. If you don't believe it, you are not looking hard enough. You and I will have to agree to disagree. The limiting factor is generally the person in the driver's seat.

Sometimes it isn't about the money. Sometimes it is about the principle, punchback, and not letting someone fleece you. For some people, fighting back, it is all about the money. For me, sometimes it is about the principle.

I am a bit confused.  Are you saying there is a de minimum defense to copyright infringement?  I have heard of the extent of the infringement being used to calculate damages, but never as a defense to liability.

Some of your listed strategies would make me cringe too if the risks associated with them are not properly explained to someone considering them.  I am not sure what they all mean, but they are all 100 percent fine for someone who has nothing to lose, but to someone who has assets, a few of those tactics come with serious risk of making things worse by either inviting litigation and or increasing the chance a judge would award attorneys fees to the copyright holder and increase the award of damages.   

Sure, consider being creative or unconventional.  Options are good.  Just make sure you know that it if you have assets, it is possible to make things worse... heck, even much worse.

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Higbee Associates Letter & Lawsuits Forum / Re: Service to "fight back" against Higbee

« on: June 07, 2018, 01:14:17 PM »

I agree that most of the dismissals are likely settlements.

And regarding the Michael Grecco lawsuits, a cursory look at them involves larger parties, which most of the folks here on ELI don't fit into. And most people we encounter don't deal with celebrity type photos.

I suspect that the default judgment was not overturned because the defendant was not a small party and perhaps was sizable enough to "know better" to respond to the lawsuit.

Clearly, Wrapmarket is big enough or they would not paid or settled the judgment.  We should not assume that Wrapmarket paid the entire $60K judgment. Even losing parties have some leverage because they hold the money and just because there is a judgment doesn't mean someone has to pay off the judgment quickly or easily.

It is entirely possible after the judgment was rendered, the two sides got together to settle the matter at a lower amount instead of both sides fighting on. Again, I have not seen the documents myself but a judgment doesn't always translate to a full paid off settlement.

I was interested in this, so I did a little bit of research. There are lots of cases to wade through, so I am sure I missed some. For the most part, it seemed like most of the Higbee cases were eventually dismissed. I am assuming the majority of those dismissals were the results of settlement.

I also saw a fair amount of default judgments. One case that I found did stand out to me though:

Michael Grecco Productions Inc. v. Wrapmarket, LLC
https://www.pacermonitor.com/public/case/21709013/Michael_Grecco_Productions,_Inc_v_Wrapmarket,_LLC

It looks like it went to a $60,000 default judgment and the defendant tried to challenge the judgment but was denied.  Higbee then tried to do a judgment debtors exam, which is basically a post judgment deposition, but he ended up withdrawing it. Two weeks after that, a satisfaction of judgment was filed which means that the defendant ponied up and paid off the judgment.

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Higbee Associates Letter & Lawsuits Forum / Re: Letter from Lynn Burke, Sanders Law

« on: June 07, 2018, 01:03:56 PM »

No one is going to hear me oppose the notion that some of these characters (especially those who have unknown, low-value works) hope for and encourage infringement and jump on the extortion letter bandwagon. I do believe SOME (not all) parties engage in seeding the Internet to entice people to using images thereby creating "infringements" that would not otherwise exist.

I personally think Nick Youngson/RM Media found himself a nice little income niche here riding on people's ignorance of the Creative Commons system.  How many $10 images do you have to sell to equate to a $2,500 settlement, right?  Hell, despite all these infringements going on, he wants to acquire more images!  That means more opportunities for people to "slip and fall" in Creative Commons system and more potential for his income!

The point fed up and I are making is there are many trolls who are actually putting their copyrighted work online and intentionally labeling it as free to use.  In the case of Schwabel, he's put it onto completely free sites without any terms whatsoever.  Youngson seems to be a little different because of the attribution requirement.  But in both cases and I'm sure hundreds of others the trolls are seeding their work to ENCOURAGE infringement and then extorting a disproportionate amount of money from hundreds of victims.

The fact that they've made a business model from extorting settlements should be obvious.

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Higbee Associates Letter & Lawsuits Forum / Re: Letter from Lynn Burke, Sanders Law

« on: June 07, 2018, 12:53:46 PM »

Totally agree here. Blaming Google is not going to make anyone sympathetic to anyone's case. Certainly not from me.

I really think it's not in anyone's best interest to use the "Google said it was free" defense. Even for images that have been labeled for reuse and modification, Google specifically says "Images may be subject to copyright". When you use an image it is on you to make sure you follow the source of the image and understand the license being offered for that image.