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Messages - Matthew Chan

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The title of this post comes from Paul Alan Levy's (lawyer for Public Citizen based in Washington DC) recent surprise and meaty expose of Higbee & Associates and their demand letter shenanigans.

As a matter of disclosure, Mr. Levy and I became acquainted a few years back over a legal matter unrelated to copyright extortion. He was a valued and outspoken ally and advocate to which I am grateful to this day. However, even before that, his reputation preceded him because his name would come up on several other matters and issues I follow.

What I am saying is that Mr. Levy is a legal powerhouse and takes no prisoners if he sees something bad happening to people. He calls it how he sees it. He is a pit bull (I mean that in a positive way) when he wants to get information and results. He has no qualms reaching out to potential adversaries/bullies and asking (demanding?) them to explain what they are doing and get their side of things. Further, he isn't going to just sit and wait around hoping that things will work out. He will outright insist for a resolution.

Many of his write-ups are not for the faint of heart. Aside from the very high signal-to-noise ratio in which he writes, he famously includes many piercing links to letters, emails, documents, and other supporting documents to support his argument.  For me, I have to go and click each and every link he provides because there is just some good juicy stuff in there!

Because of time constraints at the moment, I can't extract and quote the juicy stuff he writes. But I will. There is some real "meat and potatoes" he offers and I want to point them out.

ANYONE WHO GETS A HIGBEE DEMAND LETTER ABSOLUTELY NEEDS TO READ HIS POST! There is no single article or post I have seen anywhere that comes close to what he has put together. The stuff he is writing and analyzing makes me look like a 6th-grader. It is that freaking good.

There is a lot to unpack and I will do my best to bring out the goodies that will be helpful to newcomers in the near future.

$50K for one image? Are you sure about that? I have never heard of anyone demanding this much for one image.

Start reading this forum and you will get an idea of how this scheme works.

I just discovered this forum today so I'm still pretty new to all of this. Yesterday I received a letter from Higbee Associates informing me that I was in violation of using a copyright image a few times in a blog post I made back in 2016. They asked for about $50k to settle. A little about my site: It's never been incorporated as a business and is a pretty small affair overall. In total I've made like $100 from ads over the years but that is definitely not a profit when considering facebook promotion, URL registration, and getting the wordpress tools. I was pretty green back then, mostly doing stories about cute animals, endangered species, or neat scientific breakthroughs...pretty light and feel good. I haven't updated in quite some time, almost a year I think. Anyway this has me pretty freaked out. I have about $60 in my bank account and virtually nothing in my name (no car or house). I really don't know what to do and I'd like to stop panicking. Any advise would be appreciated.

I have never interacted with Leslie Burns. The letter that was shared with me belonged to someone else.

Can you tell me what the outcome of your situation was? How did you handle Leslie Burns?

Getty Images Letter Forum / Re: PicRights/AFP at a Student Org
« on: January 09, 2019, 07:59:14 PM »
Nearly every stated figure to settle in a demand letter is subject to negotiation and reduction. But you do have to put in the work to provide explanation of how it happened (assuming it was unintentional), removal of images in question, issue an apology, and counter-propose a number you think is more appropriate. So, with the right explanation and responses, that $710 can be reduced significantly. Again, that is a generalized statement which will have varying degrees of success.

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

Welcome aboard.

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

Getty Images Letter Forum / Re: ImageRights
« on: January 07, 2019, 04:04:57 AM »
Most don't "litigate" but they do pursue you in as many ways as they can which can lead up to a lawyer threatening to sue. So, the odds are generally in your favor.  Generally.  And no, ignoring them doesn't make them "go away" quietly. They generally make noise before something gives.

Start reading other posts and get educated.

It sort of sounds like you created a meme here. Memes exist all over the Internet. Not sure how you used that image but I tend to agree with Robert it isn't clear cut because people legitimately execute transformative work all the time. But the burden is partially on you to defend it. They have a burden to prove if they feel it is a legit infringement. It sounds to me there is room for an aggressive settlement if you are willing. Otherwise, you will have to outright stand up to them and explain why your meme is appropriate and why you won't be paying. They will likely test your resolve and knowledge here to see if you will be "easy" or not.

Don't know who Cody Donnell is. Probably a low-end clerk working under the supervision of a Higbee lawyer would be my guess. I don't think they are the sharpest nails in the box on these matters.

I read on another thread that there's a statute of limitations on Copyright Infringement.  I posted a picture to my personal blog which I have never made any money from. The image was altered with the faces replaced by the faces of my cats.  I posted this picture in 2013. And this month (December 2018) I got an email from Higbee Associates. I took the image down as soon as I received the notification. Of course someone named Cody Donnell is pressing me to "resolve this claim".  I have a friend who is a copyright lawyer who is going to help me out. But I'm hoping for a little more ammunition to use against these people as I have NOTHING to give them.

Higbee Associates Letter & Lawsuits Forum / Re: Corporation Doesn't Exist
« on: January 04, 2019, 06:39:44 PM »
Without knowing the specifics, it seems to me if they want to target a non-profit that is shut down, let them. They are sending a letter there because that is probably the best info they had available at the time.

However, you also state that the image is referencing an image from a blog that pre-dates the non-profit?  And you want to send them a letter to correct them and have them send it to the correct person? That doesn't seem very wise.

If they want to target the directors, you can't stop them. But I wouldn't help their efforts by correcting them.

People fail to understand that anyone can target anyone with a letter. It happens everyday with legit scams and people fall for it.  These demand letters are not traditional scams but that doesn't mean there isn't a lot of sloppiness going around. There is a time to pipe up and there is time to stay silent. Each has its pros and cons. There is no clean solution but I am not into giving info that helps the other side.

That is why people have to get educated, have critical thinking skills, and stand their ground.

Ok, I will bite the apple and make a few comments.

I have a slightly different situation from other postings here. The infringement email came into my personal email but was addressed to the corporation that I own. The infringing posting was on the corporate web site. The domain name of my personal email is the same domain name as the corporate web site.

This happens all the time. They will email almost anyone with a notice in the hopes that it will find its way to the intended target or person of authority. It is common because incorrect recipients will typically forward such messages to whomever they believe should receive it.

First, I heard from Picrights in Canada. They wanted $150, which I would have given them except that I was concerned that I would only encourage more claims. I did communicate with them via email, and I challenged them to prove that they existed as a legal entity, to which they did not respond. (I suspect they didn't know how.) So I decided to ignore the whole thing since I couldn't evaluate the risks from settling, and I had a difficult time imagining that a Canadian firm was going to sue me in the US for small change.

They probably didn't do it because it was, to them, a "dumb question" and wasn't worth their effort to respond.

Second, months went by and then I heard from Higbee, who wanted $1,000. I have ignored (not even opened) emails and ignored voice mails. I considered this to be more serious but nevertheless they were going to have to travel a long distance from California to sue me.

Being outside of California is one less obstacle Higbee has to deal with. They won't have to engage outside counsel but that doesn't necessarily mean they have to "travel" to you. They simply incur the expense and inconvenience to hire an "out of state" lawyer.

Third, completely independently, this corporation no longer has any business nor expects any business, and I had already decided to dissolve it at the end of this year. This just gives me an extra reason to do so.

You didn't ask here but I would like to add that my non-lawyer opinion is that the best and safest way to dissolve a corporation is to simply stop paying the annual fees and most states will execute on an administrative dissolution. No signatures or statements necessary. NO muss, no fuss.

Fourth, in theory, the corporate liability protection should be sufficient, but then again any determined attorney would attempt to pierce the corporate veil and expose personal liability - and might succeed. Not every single i has been dotted or every t crossed in the lifetime of the corporation.

My non-lawyer opinion is the default is you have corporate liability protection. Someone has to ACTIVELY do the work, incur the expense and costs of piercing the corporate veil. Lots of talk about piercing the corporate veil but in a practical sense against very small parties with relatively little assets, not worth it. And even if you do have personal assets, they can't touch retirement accounts and perhaps certain forms of retirement income. Also, scattered bank accounts dilutes the effort too. Lawyers don't like to work for free or work so hard with so little payoff. So, my view is there is theory and there is practicality.

Finally, there is a sister corporation to the one being dissolved which has a similar name. I'm going to pull down the original web site with the dissolution of the corporation, but some of the material on it is planned to re-appear on the sister's new web site, albeit in a different form and with no unlicensed images except those of my own creation.

I wouldn't worry too much about it. Unless someone believes you are some whale or have a personal axe to grind with you, I cannot see anyone going to such lengths over this matter.

That's the background. I have read many of the other postings on this web site, but I've seen none that comment on settling resulting in new claims once they've discovered that you will pay. Is this not of concern or has it simply not happened (yet)?

I am going to say outright there is a weird paranoia that settling one case that will spawn others. That is generally a false notion. If that is happening, I have not heard of it in 10 years.  Yes, we do a lot of name-calling of those parties who pursue excessively high settlement amounts but I have not heard or seen of any legitimate complaints where you settle one and it automatically spawns other demands from the same parties. I have to explain to people that there are people who get MULTIPLE extortion letters but they generally come from different copyright owners or enforcement agencies altogether. And it happens because some website owners have MULTIPLE infringing images that belonged to different owners. It has nothing to do with settling one case spawning another one. It happens because some website owners have too many infringing images which increases the likelihood of more demand letters!  So, let's get this straight once and for all.

The decision to settle any particular case is subject to individual scrutiny and evaluation but to adopt a conspiracy mindset about this has never been remotely substantiated by anyone I am connected to through ELI.

Any comments on the corporate versus personal liability? I've considered simply faxing them the dissolution papers, but decided that any communication would not be wise. Let them figure it out. If they actually did sue me as president of the corporation I could probably craft a sufficient pro se motion to dismiss as the corporation no long exists, and I am no longer an officer of the corporation. If that didn't work, I could let them secure a judgment against the corporation which doesn't exist and no longer has a bank account. On the other hand, if they were to actually travel here to sue me, they would probably be back for a new filing against me personally which I would have to defend. I'm sure that it is unlikely but not impossible.

You are overthinking this. Why do you think they would sue you over anyone else? Statistically speaking, outside of some extenuating circumstances, less than 1% of these types of infringements ever result in a lawsuit. And even it there was a lawsuit, I would say 90% get settled out.

Or I could tell them I'm in my 70s and living on social security - which is true but not the whole story as they could quickly discover on LinkedIn.

You can't have it both ways. If you want to go dark, then fine. There are pros and cons. If you want to selectively reveal facts that serve you, that is fine too. There are pros and cons. I tend to lean towards a strategic response and providing a narrative with facts that serve you.

Mostly, I'm just sharing my situation for others, though I'm happy to take any comments anyone would care to make.

Forgive my confusion, how is Getty connected in this conversation? I haven't done in-depth research by I assume that AFP images are owned by the AFP. If AFP allows Getty to sell and license the AFP photos, that doesn't mean that AFP cannot independently pursue other actions to enforce purported infringements that might be found.

In this particular context, Getty doesn't seem to be a relevant issue here.... aside from the fact that they severely tarnished their names with their aggressive decade-long campaign to go after everyone big and small (thereby leading to inadvertent creation and formation of ELI, their primary online adversary to their extortion letter program).

Again, I could be confused but I am not understanding what Getty is supposedly doing in relation to the alleged AFP images infringements.

I would assume that it would be relevant to a class of people if Higbee was simply sending out demand letters without proof. Getty may be aware, but that would imply there is some sort of agreement between AFP and Getty for collections. Here's the problem with that though... Getty got out of doing stuff like this after it got a lot of bad press. Why then would they open themselves back up to this? Also, if Getty is responsible for licensing, why would they sidestep the collections process?

Hmm.... I have frequently used the phrase "low-hanging fruit" on the ELI Forums. My use was intended as a euphemism for being an easy victim to target and pick at, not anything remotely sexual or connected to LGBT.

So, it seems I learn something new about a long-established euphemism. As of this post, a casual Google search on "low-hanging fruit" still overwhelmingly displays definitions analogous to "a thing or person that can be won, obtained, or persuaded with little effort" and "Easily obtained gains; what can be obtained by readily available means."

For now, we should be safe from the PC police.

I think some in the LGBT crowd find the phrase offensive.   It is tough to navigate the seas of political correctness.


What happened in this thread?  Did the person who started this thread orphan out your responses?  That is rude because it leaves the rest of us stranded. They got their answer and suddenly no one knows what they asked?

Might I suggest that with newbies who have no posting track record, we "regulars" quote the underlying post as part of the response so that if they decide to pull this stunt, we still have  a copy of what was being responded to.

No one likes orphaned threads because the naked responses lack context.

Speaking from personal experience of self-representation a few times over the years, a touch of craziness and insanity also!   ;) ;) ;)  ;D ;D ;D 

I am happy to say that I am still alive to talk about it.

Regarding this case, I ultimately think it will get settled out as most pro se cases do. It is all a matter of when and how.

Representing oneself in pro per takes an abundance of one of two things, guts or ignorance.  One way or another, it is usually entertaining.

I was made aware of an ongoing lawsuit, vs. Lereve Skin Institute. It caught my interest because it is a Higbee client suing a Pro-Se Defendant. I am always intrigued to see how a pro-se defendant defends themselves. It can be painful rubber-necking experience.

The docket thus far appears to show a bunch of clerical errors (deficiencies) made by someone at the Higbee office. That, in itself, seems a tad embarrassing. It took 13 entries to get the lawsuit off the ground and overcome the deficiencies.

Interestingly, once Urbanlip filed the complaint on Sept. 25, the defendant Lereve wasted no time and filed an answer on October 15, 2018. In fact, I am not sure Lereve was even officially served but Lereve answered promptly. It saved Higbee and Urbanlip the expense of hiring a process server.

A cursory reading of the complaint seems to indicate this all began in 2012 when Urbanlip purportedly discovered infringements.  But they didn't pursue litigation during that time frame. However, it seems that earlier this year, the matter was revived when Urbanlip purportedly found additional infringements. It appears this time around, they were not going to let this go.

In reading Leveres' answer, it appears this is is a small business which has been a bit sloppy and haphazard in its image management. However, it also shows that they appeared to make substantial efforts and bought many photos from Masterfile.

There are assertions that the infringements from 2012 was from another company, Merveille, that ultimately dissolved/suspended in 2013, not not the current corporation Levere. The assertion is that the current owner, Yu, worked for another Merveille (with not shareholder interest) in a marketing capacity in a similar line of business and entirely rejects the idea that she was personally liable for any such infringements.

Fast forward to 2018, Yu is now an owner of Lereve (current defendant), and purportedly uses Shutterstock as well as images from real patients and rejects Urbanlip's assertion that Yu had previously infringed upon Urbanlip's images.

Big picture, Urbanlip believes Yu has culpability because of her roles at both companies. Merveille appears to be a short-lived venture that folded up fairly quickly.  And Lereve appears to be a very small business as well since Yu, the owner, has undertaken the burden to represent herself and the corporation and not hire a lawyer. That is a good indication that the company has few assets and not well capitalized.

Higbee's lawyer, Ryan Carreon, is rightfully contesting Yu's ability to represent the corporation. Only lawyers can represent corporations. Yu will have to decide whether or not it is worth hiring a lawyer to represent this small corporation which may have few meaningful assets.

However, it seems evident that Yu is determined to represent herself and has done so. In the Dec. 3, Joint Report of Early Meeting, it is unsurprising that both parties seem motivated to settle the matter.

It seems that Urbanlip believes there are far more assets and profits with Levere than Yu asserts and there is a dispute in the amount to settle for.

Certainly, Urbanlip has the upperhand in terms of legal maneuvers but I wonder how much endurance they have to continue going after a determined pro se defendant with very limited legal experience. It has to be a painful experience for Carreon. Lawyers have to exercise extra care in how they treat pro se defendants or there can be blowback if they take unfair advantage. Lawyers have great exposure if they try sneaky stuff.

Carreon has asked for the right of discovery but small businesses are notorious for being disorganized and having scattered records even with the best of intentions. Certainly, Urbanlip will prevail in principle in discovery requests but I have seen up close the operation of many small businesses. It is like making sausage, you never really want to see how sausage is made.

I wonder how much time and energy Carreon and Urbanlip really want to spend on this messy case. It is clear Yu is not legally experienced and stumbling her way through the process. In my non-lawyer view with very limited information on Levere, the important thing Yu needs to really defend is herself personally. If Yu has worked and operated on behalf of Levere and a paid employee, chances are Levere will be held responsible for the mishaps/sloppiness of its contractors, not Yu personally. If Levere is found to have infringed, then so be it. Get the empty judgment.

I know some people might think the corporation needs to be defended at all costs but in my own life experience, I have and heard of many small investors and small business owners over the years abandon their corporations by not paying the annual fee forcing the state to administratively dissolve a corporation.

You did a good job on taking on the analysis. Thanks for that. Very helpful.

I am NOT take a laissez-fair attitude about this. I am also not encouraging people to disregard claims or just let a judgment happen.  In 2008-2010, there were all kinds of people doing "strategic defaults" on mortgages. They were "passive" financial moves that people engaged in. They didn't fight or negotiate. They simply accepted the fact that they were willing to take a credit hit. Nearly all bad credit drops off after 7 years but most people don't know that.

We can argue the moral issues and the collateral damage all day long. My point is that people did it. It was a calculated risk many people took to get out from underwater homes.

I am not saying there are not negative consequences or collateral damage to taking a less-than-ideal path. I am saying there are weighted decisions involved.

I have seen and had discussions with a variety of people who are in bad credit, bankruptcy, student loans, mortgage loan modifications, foreclosures, evictions, IRS troubles, lawsuits, etc. situations over the years who are in very tough positions. People somehow find their way to me because they want to hear my "alternative insights" which I am often known for. I don't seek them out. People share all kinds of very personal financial and business information and situations with me. And over the years I have had a lot of information and insights told to me by professionals that they would never tell the general public. That is a fact. I accept credible information and insights no matter where it comes from and I disseminate it as fairly and responsibly as I can.  People can decide from themselves what to do.

I once told a woman that she will likely have to depend on a spouse or someone else for the rest of their lives because of their large unpaid student loans and their credit will be "bad" for the rest of their lives.  So does one spend a lifetime trying to pay off $90,000 student loan to have "good credit"? Or direct that $90,000 towards something else? I am not the morality police.  Very tough decision. It is easy to tell someone to do the "right thing" and pay the student loan off. For most people, doing it ain't quite so easy.

One thing I do know is that most people don't suddenly go live under a bridge and have nothing left in their names. People have very sharp and aggressive self-preservation instincts. People "self-preserve" in different ways. All kinds of unusual tactics and strategies are used in the name of self-preservation. That is a fact. Some deal with it head on, others prefer avoidance and the "catch me if you can" approach. 

I am simply making counter-points based on what I have seen. People have to make tough decisions for themselves.  It is easy for me to jump in agree with you. But I have seen life is not quite so simple for many people. 

As I have said before, we have a diverse group of folks on the ELI Forums. Every reader can decide for themselves what is best for them. It doesn't affect me one way or another. I just like to offer a smorgasbord of options to people to consider. Not just one way to resolve things.

So of the five judgments, two are against corporations, two are against individuals, and one was against an LLC and was apparently collected after a failed attempt to get it set aside.

My point in making these posts is that I feel like a lot of the opinions on here promote a laissez-faire attitude toward getting sued or having a default judgment entered. The best course of action is always to deal with it (whether that means to fight or pay) rather than sit back and assume that you can just deal with it after the fact. You can't just "walk away" from a judgment against you individually. You would have to file bankruptcy (and nuke your credit), and liquidate most of your assets to pay your creditors (including the judgment you are attempting to avoid by filing bankruptcy in the first place).

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