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Messages - Matthew Chan

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Some of the documents are available here.

Nice. Is there a summary of this case somewhere other than Pacer? Where did the bond requirement come from?

I think you are referring to the 3-year statute of limitations (not expiration).

Generally speaking, in layman terms, a plaintiff has up to 3 years to file a lawsuit from the date of discovery of an infringement. And if they don't do so, you could argue that it is too late to claim anything due to the statute of limitations.

However, that assumes you stopped using the image once you were notified. It doesn't mean you can continue infringing indefinitely just because someone doesn't file a lawsuit against you within 3 years.

In short, I'm asking what exactly the expiration of the 3 years means. Am I completely off the hook for this photo? Thank you!

Getty Images Letter Forum / Re: Pixsy Demand Email
« on: December 07, 2018, 09:38:05 PM »
Robert K. and I discussed this matter in another copyright infringement case ruling. Having a registered agent is definitely the safest way to ensure DMCA safe harbor protection.  There was a ruling that discussed this very matter if you don't have a registered agent.

From my non-lawyer understanding and interpretation, NOT having a registered agent doesn't automatically mean you automatically forfeit any safe harbor protections. It just means the burden on you is harder.

It is loosely analogous to copyright registration.  Just because you don't register an image doesn't mean there is no copyright that exists. It simply means that by NOT registering an image, it makes it much harder in a court of law.

My general opinion is that you still have safe harbor protections. It is not automatically forfeited if you don't register.

You may need to do a local search or Google search on the ELI Forums regarding the specific case. I am pretty sure we discussed it somewhere. I know for a fact that Robert and I discussed this on the phone some time ago.

Robert, you have a laser memory. You remember the case I am referring to? I think we discussed this 2 years ago?

Pixsy said that they if I can show them that I had a registered agent at the time of the infringement then they would drop the case.

If I register now is it too late? is there any other way to have the DMCA safe harbor provisions?

I understand where you are coming from and your assessment is correct for a big segment of society. Without getting into a long discussion of how certain segments of socio-economic-cultural-educational circles conduct their lives, I can assure you that "bad credit" is normal and a way of life for large chunks of society.  It really isn't that big an issue for them. It is inconvenient but not catastrophic. Sadly, it is a natural way of life for them.

I personally dealt with those types of people for many years and I was amazed how people exist and get by. I removed myself with such clientele because I could not stomach it anymore but I know people who still do business in those circles. I continue to get schooled by new stories and techniques of how people get by in society with no computer at home, shit credit, no checking, no education, no checking account, etc.  But they have a smart phone. :-)

They could care less about any judgments because they have learned on the streets most judgments (default or not) don't impact them much. If it did, they wouldn't continue to indulge in such behavior.

As I have repeatedly stated in these forums, go have an honest talk with someone inside most collection agencies. There is a HIGH ratio of uncollectibles that exist and it is their full-time job and business to collect.  Collection agencies stay in business because "assets" (receivables/judgments/debts/claims) are freely given to them to work. Major financial companies sell their receivables, debts, and paper for pennies on the dollar just so they get "something" besides a total loss.

People who don't want to pay find ways of being evasive. Sure, there are occasional victories but it requires too much time and resources to collect. Unfortunately, I have learned the hard way.  And even lawyers who are in the business, have their limits of how much energy they will spend pursuing certain folks.

And your points of "fight then fight" or "settle then settle". Sheer avoidance IS a form of fighting! It is a fight on THEIR terms which is "catch me if you can". Like all fights, there are winners and losers. Some do it better than others.

The way I see it is, it always comes down to how hard someone is willing to avoid. Their socio-economic-cultural-educational background is very determinant on how it all goes down.

Regarding liquidating assets, what do you consider assets from ordinary people?  Their furniture, used clothes, big screen TVs, computer, cell phones, musical industries, toiletries, supplies?  Most "assets" are very low value or nearly worthless.  Any pawn shop will quickly educate anyone what the true market value of such items are worth.

Meaningful assets might include artwork, high-end furniture, real estate, business inventory, a brick-and-mortar business, bank accounts, etc.  But a very determined and knowledgeable person could place many of those types of assets within other legal entities or people they trust.  So, on paper, they look like they have few assets.

And retirement accounts and many trusts are nearly untouchable. There are very savvy high net worth people who aren't going to let all their assets be in their name and be exposed to just anyone easily collect from them. They could have a network and web of smaller entities, accounts, trusts, trusted individuals, etc. Divorce lawyers are a group to turn to get stories of high-class avoidance strategies because they have to sniff them out from spouses who don't want to disclose ALL the assets they have.

Both low-class and high-class avoidance strategies are alive and hidden in plain sight. In some circles, they are called "asset protection strategies" and they are taught by many lawyers! I know because I have taken some seminars over the years on such topics.  Very practical and good to know if you ask me.

I have considered writing and publishing about such topics for the affluent audience. Lots of people who fear the loss of acquired assets so I think there is a big, underground interest in such topics.

If the judgments are against individuals (as opposed to companies) then there is a higher likelihood of collectability because you can't just "walk away" without doing some serious damage to your personal credit. If you have any assets they will just be liquidated to pay off creditors in bankruptcy, so it might make more sense to scrape up the money and try and settle it rather than nuking your credit for the foreseeable future. Judgments resulting from intentional torts generally cannot be discharged in bankruptcy anyway, and I am willing to bet that Higbee argues that these are "intentional" infringements when applying for the default judgment.

My point is, if you are going to fight then fight, if you are going to settle then settle. If you do get sued, then ignoring the problem and getting hit with a default judgment is usually the worst thing you can do.

Very nice catch.  Nice little collection of questionable judgments against some interesting legal entities.  I call them questionable since no one bothered to show up and the judge could pick any dollar amount based on his mood. Further, it always comes down to collectability.  Those judgments are so absurdly high, it is almost pointless to make any effort to pay them unless someone is willing to expend the time, resources, and energy to pursue them.

Many of the principals/owners of those legal entities will likely abandon their legal entity. It ends up being a paper judgment against a paper legal entity. Whether it becomes anything more remains to be seen.

The plaintiff will now learn how much that paper is worth. It is worth "something", just not what is published or printed, I can you that!

It looks like Higbee & Associates is using their results on default judgments as part of their sales pitch.

Some of our notable recent court successes:

Summary judgement denied to BackChina in infringement case

Alex Wild wins $15,000 copyright infringement judgement

Chris Sadowski wins $30,000 copyright infringement judgement

Michael Grecco wins $45,000 default copyright infringement judgement

Michael Grecco wins $60,000 copyright infringement judgement

Sadowski wins $50,000 copyright infringement judgement

If I remember correctly, Hughley Smith was briefly associated with PhotoAttorney for a short time. However, I saw little indication there is much substance or ammo behind the Hughley Smith operation. Having said that, it has been a while since I heard that name anywhere. For the moment, it is hard to get excited or worried about their letters.

What is the name of this case? Is it one we have covered in another thread somewhere?

This whole forum is full of discussions of how to handle extortion letters. Please do yourself a favor and start reading. People aren't going to start from scratch to answer. From what I can tell, there isn't too much immediate worry about Hughley Smith operation. You got time to do some reading and get educated.

Getty Images Letter Forum / Re: Copytrack email
« on: November 10, 2018, 03:05:12 PM »
Do yourself a favor and start reading some of the other threads to get a feel of how this stuff works. You are asking questions that seem to indicate you haven't done much self-educating.  People aren't going to give explanations on topics frequently covered before. Copytrack is very tame. You have time to get yourself up to speed before doing anything.

Would you reach out to the photographer personally or copytrack? The maximum the band could give is 100 euros to be honest.

I agree on all points.  However, the thing I would add to this is that in that a few pro se cases I have communicated with, it appeared to have help secure a favorable settlement than if they just rolled over.  I would like to point out that this is only anecdotal and what was relayed to me. Pro se or not, most of these types of cases, the plaintiffs want a settlement. They don't want to expend the resources to "go all the way." The willingness to be pro se shows a certain amount of grit. There is also the leverage and dynamic of one side expending $400/hour and the pro se person not expending any resources beyond their time and energy.

But I definitely agree people have to ready to assume the many risks of going "pro se". But I have to root for the underdog and also say there are some "unconventional opportunities" that can open up if one plays to them.

What makes you think a German company with no real presence in the US is going to sue you???    They are not a law firm. 

Yes, you can represent yourself, but it is usually a bad idea if you want to mount a substantive defense.   Federal Court is not the Peopleā€™s Court, missed deadlines and missteps can lead to request for sanctions.  It is not impossible, but if the otherwise knows what they are doing and you do not, it can get ugly for you.

I would like to add that an "organization" whose only assets are their desk, computer, printer, and a corporate checking account, don't generally have much to fear from a default judgment. Unless someone really has an axe to grind, it is hard to see any lawyer expending the energy and resources to try to extract funds from such a small-time scenario.

It depends on the jurisdiction that you are litigating in, but in general, a person can represent themselves but an organization must retain an attorney. I have been involved in cases where an organization tried to self-represent, and the court struck all of their pleadings, ordered them to retain counsel by a certain date, and entered default against them when they did not retain an attorney.

With that said, it sounds like you have not been sued yet. Are you certain that they are actually going to sue you?

Yes, people can represent themselves if they don't have a lawyer. But people who represent themselves "pro se" in court have to be VERY mindful that is going to very difficult to outlawyer the other side. It is also fraught with risks. Your chances of losing are very high if one tries to simply and purely "argue the law". There are pro se benefits in that opposing counsel and even the judge will be frustrated because they will have to be extra careful with you and give you extra benefit of the doubt to be fair and not be accused of taking unfair advantage. They absolutely hate dealing with pro se defendants because there are so many pitfalls. There is the appearance that it is not a fair fight. That is why opposing lawyers often PREFER you lawyer up so they don't get accused of improprieties which is a larger headaches than the case they are working. Those potential accusations can cause lots of administrative headaches. 

There is a also a degree of tenacity, toughness, and attitude one has to have to do so. That is not something everyone has. A few people I know (including myself) have been successful in representing themselves but it ain't because we became super-lawyers overnight. It is the toughness to push forward and fight for your position even when you are out of your element. Positive outcomes often occur when the opposing side sees uncertainty, unintended consequences, or when they realize that their efforts are not "worth the grief".

We are preparing for a potential court case by Pixsy/Mr. Marco Verch (photographer) and we don't have money to hire a lawyer. Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.

I have seen different law firms respond in very different ways when they are the ones receiving the demand letters. Suddenly, they are working "pro se" in the sense that they are scrambling to figure things out to represent themselves looking for some legal argument to support their position. And you find out the risk tolerances of the underlying decision-makers quickly.

There are vulnerabilities relating to insurance matters that have come up in discussion. Or sometimes lawyers/law firms don't like the potential negative publicity.  Or they don't want the distraction and collateral costs of pulling their resources away from the paying clients.  Or they simply don't like being a defendant party at all. Law firms and lawyers generally draw their strengths and income from representing others, not being a party themselves. It is interesting to hear the things lawyers and law firms worry about.

Having said that, there are folks who don't like to take things lying down and simply waiting it out. Hence, the MSEK firm decided to proactively strike out first. Win or lose, I commend them for not just rolling over the whole RM Media/Youngson honeypot scheme. Win or lose, it will show people MSEK are fighters. That is how I view them.

I will say is that Higbee was eventually going to pick a fight with the wrong people and I don't know why one of Higbee's staff members didn't realize that they shouldn't put in a demand to such a firm. I know so much of their work is a mail merge, but they should've pulled this demand out.

It seems that nycopyrightabuse has moved on by the lack of response. My speculation is that he probably settled the matter as most people do to simply have closure.

And I confirmed that the original poster had honorable intentions and what they were trying to do. However, it was THEIR approach and efforts.  I neither endorse or condemn their efforts. Generally speaking, I don't go out of my way to find out how people resolve their cases.  People generally report back to me if they feel inclined.

@nycopyrightabuse: How did your case end? What did you use as evidence to fight or case?

@Matthew Chan: Please help to confirm the legitimacy of these users as they stated they have reached out to you regarding these matters, and would be getting back to you with facts about their legitimacy to " hammering all of the details out in a swift fashion and to your satisfaction".

As others have pointed out, registration is not necessarily "proof" of ownership. It just means you were willing to pay money to claim ownership and register the image. US Copyright Office doesn't generally verify anything except whether someone submitted the paperwork correctly.

The US Copyright online system is horrible, outdated, and shows very little. It is a frequent complaint and needs a serious overhaul. No one can verify or corroborate anything whether you are the accuser or the accused.

And if you believe they don't own an image, you can call them out, call their bluff and not pay. IF YOU truly believe that being the key phrase here....

In other words, is there perhaps a US Copyright Library website somewhere, to which I can ask him to provide a deep link, showing the specific image and the copyright number with which it is registered? Obviously if he can't prove that he or his client owns the copyright, we shouldn't have to even bother with this.

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