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Messages - Oscar Michelen

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So first of all, in response to "This Site is Joke"'s comment that he would pity folks who rely on this site, this site's reputation and effectiveness cannot seriously be challenged. No other site or group has done more than ELI to help victims of copyright trolls like Richard Liebowitz.  As to the point that the court made the client - and not Liebowitz - post a bond, I would advise everyone to read the application for the bond. It is hardly a love song to Liebowitz. Here are my Top Ten quotes from the bond application: (1)"Indeed, our firm was involved in another matter in which the plaintiff (represented by the Liebowitz law firm) was found liable for attorney's fees and costs based on the frivolousness of the plaintiff's claims"; (2) In that prior case, the court said of Liebowitz: "no reasonable lawyer with any familiarity with the law of copyright" could have thought the case had merit;  (3)  The letter lists a series of cases Liebowitz has filed where bonds have been required; (4) In those cases, bonds were required because of "a variety of different errors committed by the firm"; (5) The letter chastises Liebowitz' practice of not trying to settle in advance of filing  litigation saying this tactic is "inherent to the business model of the Liebowitz Law Firm which uses the existence of the court system to extract settlements which reflect not what is just for the plaintiff or the circumstances but the cost of hiring outside counsel to defend a claim;" (5)Indeed the [factors a court considers in determining if fees should be awarded when someone gets an award less than amount that was previously offered] including motivation and objective unreasonableness can almost be determined at the outset of cases involving Mr. Liebowitz who within only a few years' practice  has filed many hundreds of "strike suits" for copyright infringement;"(6) [Liebowitz] has been increasingly recognized as a "copyright troll"; (7) "[Liebowitz]is a known copyright troll"; (8) "[Liebowitz] has a penchant to 'irresponsibly litigate';" (9)"this unsound practice has not only garnered his firm its notorious reputation" but has placed his own clients and not just defendants at risk of unnecessary financial loss"; (10)In his few years as an admitted member to this Bar Mr Liebowitz has committed himself to hundreds of potentially expensive (and often frivolous) copyright infringement actions where low damages  are at stake." The client is barely mentioned in the letter. For anyone to read that letter and the court's decision agreeing that a bond was necessary and to then think that it was the client the court was concerned about is delusional. Yes, the court made the client pay the bond - I believe because that will actually impact Liebowitz more than him being ordered to pay it. It will have a bigger backlash against him if his client now has to either fork over the money for the bond or be concerned that Liebowitz will pay for and post the bond properly. If he had been required to post the bind, the client could have been none the wiser but he is now obligated to inform the client of the court's decision. So this is a big slap in Liebowitz's face and a signal that courts are FINALLY getting the message about these digital image lawsuits after ELI's near decade-long  pursuit for justice on this issue. How this man can show his face in Federal court in light of all of these negative decisions is beyond me.   

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 24, 2018, 12:10:56 PM »
I have stayed off the site for some time because quite frankly Matt Chan and others do an excellent job of responding and providing information and frankly a large bulk of our work on ELI has been accomplished - we have pushed back, diminished or eliminated countless trolls and scare tactics over the many years ELI has been operating. I have helped over 3,500 businesses and individuals in these claims including some brought by some excellent, capable and large law firms. Its curious none sought fit to report my "unlicensed practice of law."  Here's why: 1. I am merely responding to a claim letter (often sent to a State by a lawyer who is not admitted in that State by the way) 2. The claim is  based on Federal copyright law. 3. The client retains me in NY (I am also admitted in NJ btw as is my law partner). 4. The client is advised that if the matter proceeds beyond the initial letter or into suit, they need to retain local counsel. FYI In such cases, I have been admitted pro hac vice (for just that case) in several states around the country 5.  It is generally understood around the country by attorneys and Bar Associations alike, that this does not violate the unlicensed practice of law. Finally - rather than say "This site is a joke" without any specifics, the work of this site, the contributions of its members and participants speak for itself. As for me, I have been practicing law for over 30 years,served as  an adjunct professor at 2 law schools, written countless scholarly articles, been designated and testified  as an expert in several litigation matters, been honored for my pro bono work in various fields, exonerated 7 men in the last 14 years who were convicted and jailed for crimes they didn't commit (combined time served over 110 years), serve on various non-profit boards, etc etc . I am not worried about my reputation friend. Folks who I have helped through this site and who I continue to help are getting some of the best legal representation in the country at a rock bottom price because I believe in what ELI does and am deeply opposed to the copyright trolling schemes we fight against. You want to report someone? How about reporting these lawyers engaging college students and interns to send out these boilerplate letters scaring people that they can be criminally prosecuted or face $150,000 in damages per image for hosting a digital image of a cactus on their Mommy and Me blog for three months with 25 views? That might be more productive 

Getty Images Letter Forum / Re: Emails from attorney's for Fameflynet
« on: August 22, 2016, 06:10:58 PM »
You should be aware that FameFlyNet (unlike Getty Images) does file suit. They also usually register their images with the Copyright Office as well.  We have been involved in a few lawsuits with them so they do not merely troll.  On occasion they do file lawsuits.

Forgot that I wanted to give a shout out to forum user Engel Nyst who has already spotted one such recipient and notified me. Engel has been on top of the discussion of this case from the beginning. 

Getty Images Letter Forum / Looking for Highsmith Letter Recipients
« on: August 22, 2016, 06:02:59 PM »
To my beloved ELI Forum members: Yes its been awhile since I have posted but the forum has a life of its own and it continues to address the important issues of the day in the copyright arena so I want to get back into it with the recent filing of the Highsmith v. Getty Images complaint and amended complaint.  Matt Chan already posted my article about the case from my blog I do not want to get into great detail but I would like to hear from anyone who received a letter from Getty related to a Highsmith picture. If anyone knows of a letter recipient who was contacted by Getty or NCIS or LCS or any other entity please have them email me at  Thanks

More than one person can own a copyright - you can actually have joint authors of the work or the copyright registration can just list more than person as being the owner. Each of those persons then has all the right of a full owner - they can license the work without the consent of the other and they can pursue infringement claims without the consent of the other as they both have exclusive rights.  Their only obligation would be to fully account to and properly compensate the other owner. However, if only one of them licenses the work to another party that party would only have a non-exclusive right (as the one owner cannot cut off the other's rights) and that party CANNOT sue. Under US law (specifically 501(b) of the Copyright Act  - you must have an exclusive right to be able to sue - having  a non-exclusive right does not give you standing to sue. Here endeth the lesson

Getty Images Letter Forum / Re: Need an opinion on a letter I received.
« on: November 17, 2014, 10:15:43 PM »
I have handled several of these cases with BWP Media and Sanders. Again, people need to realize that celebrity photos are vastly different than stock images. That being said, most of the time these images are hotlinked as discussed above and/or posted by third parties. Having a properly registered DMCA agent will protect you from future claims  over content posted by others. For now, take the images down, read through this forum topic and others devoted to BWP and Sanders Law and get educated

Getty Images Letter Forum / Re: Thank You Mr Chan...
« on: November 17, 2014, 10:10:27 PM »
Welcome aboard!

Getty Images Letter Forum / Re: Blog Post Extortion Letter
« on: November 17, 2014, 10:08:35 PM »
You can check with your insurance company if you have "advertising injury" insurance as that area often covers these claims. Once your lawyer contacts them they cannot contact you directly and have to go through the lawyer who should demand proof of their claim among other things discussed in Greg's and our defense program letters.

Getty Images Letter Forum / Re: Masterfile - Case done
« on: November 17, 2014, 10:05:41 PM »

Getty Images Letter Forum / Re: New extorting company: August
« on: November 17, 2014, 10:05:09 PM »
Never heard of August but it looks like they employed PicScout to develop their infringement program. As for the OP, they have not filed any lawsuits to date that I have seen but that does not mean they won't in this instance. Also, you cannot use the info on ELI that relates to stock photos of cacti, keyboards and the like, with high-res professional images of celebrities. So while you get educated tooling on the ELI forums keep that in mind.   

Getty Images Letter Forum / Re: Hacker blog discussing picscout.
« on: November 17, 2014, 09:55:39 PM »
Lucia Great find and your comments in your subsequent posts are well-stated. This model will not work for all but it certainly sets out a gret deal of info.

Getty Images Letter Forum / Re: McCormack Threats Continue
« on: November 17, 2014, 09:53:51 PM »
Just wanted to clarify that the safest date for the start of the three year period is not when Getty sends you the letter but when you take the images down. As for how to deal with McCormack, there are tons of posts about Tim and his demand letters on ELI. Read, get educated and reach out for help if want assistance 

To quote Freud " sometimes a cigar is just a cigar." Will it help my VKT clients to have me post a positive statement about him and his attorneys? Well, it couldn't hurt I guess. But I was not forced to make any post by gunpoint or any other method. I have been involved in a few litigations with VKT and Stephen Street and Dana Anderson for some time and have not seen evidence of "seeding" or any other unscrupulous behavior on their part. I disagree with them on many levels (as my post states) but they have been litigating fairly and professionally in court. I have participated in numerous court conferences on the cases with both lawyers and two Federal judges who are aware of the number of cases filed on this issue and the court treats the lawyers with respect and professionalism. Part of the reason ELI has been so successful is that its information is current and accurate. I do not want people coming to the Hawaiian Art forums and being misled that they will find evidence that VKT seeds his images on "free" sites or is not doing anything to stop the "free" sites from putting his images out there. They will not (at least I have not to date and neither has any other litigant including Aloha Plastic Surgery). So the purpose of my post was just that - give people some insight on what I am seeing as I litigate these matters to the extent that it is ethical for me to discuss them (that's why I don't set forth specific facts about the cases or my clients' positions). That being said, we are ready willing and able to continue to litigate these cases to test the images' true value and the extent that a court will allow a non-resident corporation to be sued in Hawaii but I hope that we can get finality sooner rather than later by reaching an amicable resolution.             

Just to answer a question in the above posts, when a case settles Federally, normally a stipulation of discontinuance or stipulation of withdrawal is filed withdrawing the complaint or discontinuing the action.  A telling sign is that all of a sudden without any motion made or judgment entered, the case is discontinued by the parties. Often judges will then seal the matter if the parties ask for that so its hard to know when a case is settled exactly but if you are following it on PACER and all of a sudden its sealed and closed, that usually means it settled. 

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