Messages

61

Higbee Associates Letter & Lawsuits Forum / Re: Higbee, PicRights and AFP for photo inside a PDF

« on: September 27, 2018, 03:08:53 PM »

I say what I say about PDFs from a technical standpoint, not necessarily a legal standpoint.

PDFs don't inherently display "naturally" on a web browser. Even if the image was the only element being stored in a PDF, it requires a user to actively click a PDF to view it. The device must also have the necessary software already installed to view it. Not all devices inherently have PDF viewing capabilities.

I run into PDFs occasionally and when I do encounter them, they don't "just display" as casually as if it were a web page. 

Having said that, I agree that determining the facts of the usage does have bearing. But images in a PDF just ain't the same as images on a web page as a practical matter.

I do not see anything inherently different about the merits of a claim just because the infringement was on a pdf.   Like all copyright claims, they are fact specific.   I would need to know much more before I called it nutty just because the infringement was on a pdf.   

So, I would not make categorical assumptions based on the file format in which the infringement occurred. 

62

Higbee Associates Letter & Lawsuits Forum / Re: Higbee, PicRights and AFP for photo inside a PDF

« on: September 26, 2018, 10:24:27 PM »

I can't teach the art of negotiation and and how to argue your case here. There are strategies, tactics, etc. but it doesn't fit into any neat recipe that people desperately want.

I have been threatening to do this for years and continue to threaten to do it.  I want to write a book that teaches the stuff I know so people can better prepare themselves in these situations. I am going to try to tackle it within the next 6 months or so.  It is one that synthesizes knowledge and wisdom from many fields of expertise.  As such, I can't easily give an answer for everyone.

People who have never dealt with adversarial business conflicts have a much larger learning curve.  And contrary to popular belief, you don't always have to be a lawyer to get your points cross.  It is how your posture, present, and tell your story. It also is based in your level of personal convictions, risk-taking, and coping with stress and uncertainty.

People wrongfully assume that all lawyers know how to argue and negotiate. I learned the hard way in years past, that is absolutely not true. There are some lawyers that are very smart but I would NEVER have them do certain things for me even if it was free.

For example, there is a big difference between an artist who knows how to produce a detailed drawing of a hammer and a carpenter that knows how to swing a hammer and hit the nail on the head to drive it into the wood.

I am a guy who have, over time, learned how to use various hammers to hit different nails in many ways for the outcome I want.

There are nuggets of strategies of what I am talking about scattered throughout these forums in addition to other people's perspectives. Start reading and absorbing.

63

Higbee Associates Letter & Lawsuits Forum / Attorney Mathew Higbee emails ELI's Matthew Chan

« on: September 26, 2018, 07:08:02 PM »

Yesterday, I unexpectedly received an unsolicited "thank you" email from Mathew Higbee of Higbee & Associates. It was a cordial and respectful email for the supposed purpose of "thanking" me for giving "benefit of the doubt" of an ELI contributor who shared his story that he was receiving another demand letter over a matter that had been previously settled. https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/settled-with-picrights-now-getting-harassed-by-higbee-for-the-same-image/msg23151/#msg23151

I appreciate your giving Higbee & Associates the benefit of the doubt in your answer to a recent post on your forum about us pursuing a claim that PicRights had previously settled.  We had a clerical error.  Those mistakes very rarely happen, but when they do, we apologize and fix it as fast as possible.

Mathew Higbee further wrote:

Your forum is in a unique place to provide information and to receive feedback from people who are interacting with Higbee & Associates.   You can feel confident in knowing that anyone, including you, can reach out to me directly if you ever have reason to believe that the H&A team has violated any of these key components of its training:

    Treat all people with respect and professionalism, no exceptions
    Never knowingly represent facts that are not true
    Never knowingly misstate the law
    Never do things to increase costs or make resolution less efficient or likely
    Do not pursue a claim without a good faith basis for doing so
    Earnestly try to resolve claims prior to litigating 
    Do not hold grudges or make cases personal

I base my opinions on what I have seen, been reported (or not reported) to me. I am not going to blindly accept his PR statements and talking points however nice and honorable they might sound. Actions speak way louder than words.  I have no love of Higbee & Associates but I can step back and look at the bigger picture.

1. His front line people are low-level clerks. I currently have no reason to believe they are paralegals but they could be law students/paralegal or lawyer-wannabes one day. My guess is they are hourly people who have an incentivized-bonus program in place. In all the communications that have been reported to me, most clerks do appear to exercise restraint, not overstep their boundaries, or engage in outrageous or egregious behavior.  That is smart because things have a way of going viral as has occurred in years past.

2. Despite what a lot of victims think, these demand letter cases are generally not personal. They are simply one of many. The Higbee operation is a full-time operation with a team in place. They don't generally have an axe to grind against anyone starting out. But I do believe they "lean on" some parties more than others over time.

3.  I think Higbee hugely inflates the upfront settlement numbers. Smart, informed, and educated folks know they have to aggressively argue their side and stand their ground if they want a more favorable settlement. Admittedly, there are some parties who get very good settlement amounts due to their personal circumstances and arguments.

4.  I think Higbee has a very liberal interpretation of the value of infringements that he goes after. PDF infringements come to mind. So do images that come through Twitter or other social media feed. Or those dumb Nick Youngson/RM Media $10 images.

5. I don't think he is particular fond of very challenging legal fights. I definitely believe he prefers to settle if he can.  Because litigation can get ugly, time-consuming, and an energy suck. My guess is he can inadvertently drag his clients into a bad public situation if he is not careful. Not all clients are the same. Not all values of images or infringements are the same.

6.  I posted the principles he and his law firm supposedly follows so people can hold him accountable. Sending it to me does very little good if I don't share them. It requires many eyeballs and an extended period of time to assess if those principles are followed. Time will tell.

Mathew Higbee took the time to address a big criticism of how he operates his "national law firm"  from California and rents large numbers of virtual offices throughout the U.S. I wrote what we thought of his network of virtual offices:
 https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/mathew-higbee-of-higbee-associates-bullshits-people-about-'national-law-firm'/

He claims in his email to me it is "common practice" with law firms. I don't buy it. Many law firms may rent an executive suite/virtual suite or two or partner with other lawyers/law firms to expand their presence but not to the degree he does it. And they don't say they are a "national law firm". He claims it is to accommodate immigration clients. But I don't see many immigration law firms engaging in such practices.

Let us not forget that the NY Supreme Court informed his law firm that virtual offices are insufficient: https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/ny-supreme-court-disqualifies-higbee-lawyer-virtual-offices-not-sufficient/

I tend to believe that New York cannot be alone in that opinion that all it takes is to rent a virtual office and they can represent clients in that state, immigration practice or not.

Mathew Higbee has invited me to reach out to him directly for questions I might have. I don't really see that happening anytime soon because I don't encourage people to communicate with me over demand letter matters unless they are paid clients or reporting something notable or noteworthy. I am not his law firm's quality control person. That is his job. It is not my job to tell or inform him how he should operate his law firm. He is a grown man and can live and die by his business decisions.

Last but not least, his signature line includes this:

Serving all of Arizona, California, Florida, Illinois, Indiana Michigan, Minnesota, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Utah and Washington.

California Bar License # 241380
Illinois Bar License # 6319929
Michigan Bar License # P73890
Minnesota Bar License # 0388759
Nevada Bar License # 11158
Ohio Bar License # 0094107
Oregon Bar LIcense # 106514
Texas Bar License # 24076924
Utah Bar License # 11133
Washington Bar License # 42755

Admitted in several federal courts in additional states. 

CORPORATE HEADQUARTERS
1504 Brookhollow Suite 112
Santa Ana, CA 92705

I have to give the guy credit for having so many bar licenses. The downside to this is that if someone ever wanted to hit him with a state bar complaint, that is a lot of places to have to defend.

64

Higbee Associates Letter & Lawsuits Forum / Re: Higbee, PicRights and AFP for photo inside a PDF

« on: September 26, 2018, 06:07:30 PM »

These types of "so-called" PDF infringements make me nutty.  PDF's are not inherently visible at all. You generally have to download and open them with a PDF viewer.

I think it is ridiculous and the amount being asked for is outrageous. That means, YOU have to be willing to fight and push back on the matter.  Some will say an infringement is an infringement (meaning all infringements are treated equally). To that, I say it is bullshit.

If it was all equal, there would not be such a variation of settlements and outcomes.

If you have a PDF "infringement", as far as I am concerned, this is is very far down on the priority list. This is NOT a legal argument.  It is a "common sense" argument where someone would have to force me, torture me, or drag it out of my dead body for me to ever accept it.

We have some legal minds here so maybe they might have something to add here. In my view, sometimes a strong "common sense" argument and strong pushback is what is needed.

65

Getty Images Letter Forum / Re: PicRights.com

« on: September 25, 2018, 07:10:30 PM »

People assume way too much when they assume their case will go to any court.

I have said it many times.... Statistically speaking, most small time cases never make it to court. Or if they do, they get settled out because no one wants to "go all the way".

And if people do want to assume that their case is going to court and "all the way" then, start ponying up $400/hour for that assumption. It is an expensive and flawed assumption.

66

Higbee Associates Letter & Lawsuits Forum / Re: I got a letter from Highbee but I live outside the USA

« on: September 25, 2018, 06:59:35 PM »

Well, let me be clear here. YOU (UnfairlyTargeted) might not want to take the image down and that is YOUR perogative.  But for everyone else who is NOT looking to escalate matters and do the right thing, people need to ignore what you just wrote.

Take down the fucking image unless it is an image you personally created. Being ignorant prior to letter notification is one thing.  Intentionally or willfully infringing after being notified is not something ANYONE in the core ELI team would every condone or support.

If one wants to do this sort of nonsensical thing, then NO ONE in the core ELI team will ever stand up or support you. We also do not want you here if that is YOUR message to others. It absolutely undermines what ELI is all about.

Just because we strongly assist unintentional or careless infringers in their situations does not mean we are going to espouse or endorse piracy or malicious and willful infringements.

I am not supportive of repeated offenders. We do encounter the occasional repeat offender who seem to get MANY demand letters. That is being careless and not exercising care.

UnfairlyTargeted, it is clear you have anger over whatever your case is about but your "advice" about leaving an image up is absolutely reckless, irresponsible, and crosses the line. It aggravates the situation of any demand letter recipient. I am generally pretty tolerant in letting people express their anger and frustrations but if you are going to start telling everyone to intentionally and willfully leave up images AFTER begin letter-notified because it makes you feel better, then I would suggest you take your message elsewhere.

You are not helping the ELI cause. You are hurting it by saying such things.

They can't do anything to you.  Personally, I wouldn't even take the image down in this case. Waste as much of Higbee and the photographer's time and money as possible.  Let them prove to you that the image is actually one they own and that you used it in a way that isn't allowed.

67

Higbee Associates Letter & Lawsuits Forum / Re: Canada

« on: September 25, 2018, 06:44:38 PM »

It costs very little to send threatening letters in hopes that legally ignorant people will blindly believe.

I tend to believe almost anything is possible IF someone has the drive and desire to pursue another party. But is it likely in small-timer cases? I don't think so.

I have received a letter from higbee for a company website that has an address in the states and hosted in the states.
I live in Canada has anyone seen these guys go after people outside of the country is it even possible?
Has anyone seen them subpoena a hosting company to get the information of the person who signed up for the hosting company?
If they were asking for less i might just pay them but 5k+ is stupid for one stupid looking image from google free commons.
Thanks for the great forum.

68

Getty Images Letter Forum / Re: Change of ownership at Getty

« on: September 17, 2018, 02:18:26 AM »

Very interesting.

69

Getty Images Letter Forum / Re: Picrights & AFP Copyright Infringement

« on: September 14, 2018, 02:43:51 AM »

Very nice to see you back, Jerry!

I love your response! This is why we miss you!

And please don't keep us waiting too long... We want to hear your OTHER line of attack!

I noticed that.

If I were the original poster, I wouldn't be looking to pay them money. I would start insisting that this installation was my original artwork, that the photographer did not get my permission to take the photo, and that I insist that they take it down from their licensing catalogue immediately. Furthermore, I would ask that they preserve all previous licensing records for this image while I retain a lawyer. I'd make it clear that I intend to seek compensation for the sales of the photograph of the installation and ask for contact information for the photographer.

I have a whole second phase of attack in mind too. But I'll save that for another time.

70

Higbee Associates Letter & Lawsuits Forum / Re: Lawsuits Higbee Has Actually Filed

« on: September 12, 2018, 10:40:29 PM »

Not all cases, plaintiffs, and situations are the same. Yes, Higbee is the lawyer but that doesn't mean that every case is handled the same. Some clients are more "reputable" and credible than others. Some are more litigious than others. Some are more justified than others.

For example, the Youngson/RM Media cases (generally speaking) are a joke because they are all about $10 "gotcha" market value images which takes advantage and abuses the Creative Common System.  It has been referred to as a honeypot scheme.

The Chris Sadowski cases (generally speaking) are likely related to news photography images that went viral. I view the underlying images as more valuable and credible than the pathetic Youngson/RM Media cases.

The Alex Wild cases (generally speaking) are likely related to his nature and insect photography.

The Michael Grecco cases (generally speaking) are likely related to celebrity/paparazzi types of photos which I consider higher-value types of images.

The Adlife Marketing cases (generally speaking) are likely related to food photos and Joel Albrizio's infamous operation we and Copyright-Trolls.com have covered in the past.  But most of these are likely older cases. One case has gotten very nasty and at deposition and subpoena level.  Latest reports are that he has developed a scheme to pursue copyright claims by mischaracterizing/misclassifying them and running them through his jurisdictions' small claims court. I understand it has largely been a fairly successful endeavor because they have successfully identified defendants who don't have knowledge how to handle a small claims court case.  This is very much under-the-radar stuff that cannot be found on PACER .

Higbee is only a threat to the degree his clients are credible, litigious, and willing to put their names and cases in the public eye.

Having said that, Higbee has a fairly solid operation. I have heard that his non-lawyer clerks are generally polite and respectful. They seem to work in check.  Even the lawyer reports, I don't get reports of Higbee lawyers that say crazy, insane things beyond quoting maximums of statutory damages stuff. 

That is probably a reflection of Higbee's approach which is to NOT invite unnecessary controversy and provoke a reputation of being an overly-aggressive and overly litigious lawyer. My guess is that he has been smart enough to see other operations go down in flames that have tried the "sue the hell out of everyone" approach. They inevitably got put out of business altogether or suffered enormous collateral damage because of the enormous exposure and hornet's nest they triggered.

I am no lover of the Higbee operation. They engage in smoke and mirrors by claiming they are a "national law firm" when they primarily are a California firm with a number or remote workers. They still ask for crazy amounts of money but I have seen worse conduct and behavior in other operations. Like all other operations, they are eager to settle for "reasonable" amounts but remember, they are based in California where the value of the dollar is skewed. So their idea of "reasonable" is still often off-the-charts gouging.

71

Higbee Associates Letter & Lawsuits Forum / Re: RM Media LTD Creative Commons Copyright Statement

« on: September 12, 2018, 03:30:45 PM »

Youngson/RM Media has made several website "tweaks" over the last couple years based on "feedback" they have been getting.

Given how cheap his images are, people who get demand letters should just go pay the $10 for the image, obtain the license, and get the receipt even if it is after the fact.

AS far as I am concerned, he is full of shit.  He has bastardized the intent of Creative Commons and flipped it on its head. I couldn't figure out the website, the bogus banner ads, who owned the website, whose image it was, etc.  I was fooled by his websites for a while when this all began coming out. He has become more "transparent" only because he has been loudly called out for fooling and misleading people.

And he comfortably stays out of the reach of most people by doing this from the UK.  People should be very, very pissed. RM Media is Nick Younson, period, end of story. If he is smart, he won't target UK people because they would be very close to him. Right now, he can and does tag American victims all day long with Higbee's help.

Higbee has many clients and I see the claims but this one, by far, is the most offensive and disgusting as far as I am concerned.  He sells his images for $10 all day long and conspires with Higbee to collect thousands of dollars. And they actually think they deserve it simply because people missed the Creative Commons fine print over attribution. It is very clearly a "gotcha" trap to collect thousands of dollars over $10 images.

Victims should contact the folks at Creative Commons and inform them of how Youngson bastardizes and brings negative publicity to the entire Creative Commons name and their system. I certainly tell people to avoid the CC system altogether because Youngson has proven that it can be used and abused as a legal trap. Creative Commons is clearly a flawed system and Youngson is riding their coattails to profit from the bastardization of the system.

https://creativecommons.org/about/contact/

https://creativecommons.org/about/team/

As far as I am concerned, he has hijacked the Creative Commons name by incorporating it into one of his URLs. Not sure if Creative Commons has been trademarked or not. But it would be interesting to know what the non-profit company thinks about how Youngson is using and profiting from unintended infringements. But victims need to bring it to their attention.

72

Higbee Associates Letter & Lawsuits Forum / Re: Settled with PicRights, now getting harassed by Higbee for the same image

« on: September 12, 2018, 03:02:58 PM »

It appears there was a clerical mistake and probably slipped through the cracks. Keep it simple. Email them that the matter was signed, settled, and paid. Give them enough info so they can go look it up.  I have never heard of anyone double-dipping on a claim.

73

Higbee Associates Letter & Lawsuits Forum / Re: Meyer, Suozzi, English, Klein v. Mathew Higbee, Youngson, RM Media, Higbee Assoc

« on: September 12, 2018, 02:57:44 PM »

Hmmm... I guess I did miss it when you posted it initially.

The lawyer who wants to remain anonymous (and not a copyright or IP lawyer that I am aware of) who contacted me wants to bring attention to the following excerpts:

Using a free image without attribution is NOT a copyright violation, but a violation of the license.  Accordingly, none of the statutory penalties apply.  If people know that they can’t be sued for $150K, people will stop paying and funding this machine.  The following research will really help people fight this.

“It is well settled that state law rules of contract construction govern the interpretation of copyright transfer agreements, notwithstanding the federal statutory source of the rights at issue.” John Wiley & Sons, Inc. v. DRKPhoto, 882 F.3d 394,412 (2d Cir. 2018) (citing Graham v. James,144 F.3d 229, 237 (2d Cir. 1998). When a work is subject to a license, the law does not entertain claims under the Copyright Act, as an “award of copyright damages in [any case involving a license] is problematic [ because a] copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement.” See Graham, 144 F.3d at 236 (citing Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 753 (11th Cir. 1997); Peer Int 7 Corp. v. Pausa Records, Inc., 909 F.2d 1332,1338-39 (9th Cir. 1990)); see also United States Naval Inst. v. Charter Communications, Inc., 936 F.2d 692, 695 (2d Cir. 1991) (for the proposition that though a licensee “is capable of breaching the contractual obligations imposed on it by the license, [it] cannot be liable for infringing the copyright rights conveyed to it.”).

With respect to claims of breach of a nonexclusive license that has no duration and grants broad, unrestricted rights to use a copyrighted work, the license (1) is not terminable at will by the licensor; (2) must be materially and willfully breached by the licensee in order to give rise to the licensor’s right of rescission; and (3) must be expressly and formally rescinded before any use by the licensee can be deemed not subject to the license and thereby, considered copyright infringing. Graham, 144 F.3d at 236-38; see also TVTRecords v. IslandDef Jam Music Group, 412 F.3d 82, 93 (2d Cir. 2005); Rano v. Sipa Press, Inc., 987 F.2d 580 (9th Cir. 1993). Furthermore, failure to attribute credit to the author is not a material breach such that a licensor may rescind a license because such obligations are considered covenants, not conditions. See Graham, 144 F.3d at 237 Cord Meyer Dev. Co., 761 F.2d 141, 147 (2d Cir. 1985); Jacob Maxwell, Inc., 110 F.3d at 754; I.A.E., Inc. v. Shaver, lA F.3d 768, 778 (7th Cir. 1996). Also, failure to attribute credit, alone, is not copyright infringement. Graham, 144 F.3d at 237.

I want to be clear that in this particular instance, I do not have a strong opinion one way or another because my background isn't strong enough to credibly weigh in. That is why I am opening to listening to legal minds debate .  However, the case shows that people have different angles and perspectives of defending the Youngson/RM Media case.

I have been following  this case.  Not much has happened.   Higbee filed a motion to dismiss.    The judge is yet to rule on it.   There is no notice of RM Media being served.

I posted about this a month or so ago at
https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/this-will-be-interesting-to-watch/

At best, this case will force RM Media to tweak their license language to clarify the attribution is a condition and not a covenant.   It is a nice counter-punch if it lands, as it may cost them some money to defend (assuming they get served), but it is very unlikely to be a knockout blow.

74

Higbee Associates Letter & Lawsuits Forum / Meyer, Suozzi, English, Klein v. Mathew Higbee, Youngson, RM Media, Higbee Assoc

« on: September 11, 2018, 10:51:32 PM »

This was brought to my attention by a lawyer who wished to be anonymous. It is a Plaintiff Memorandum of Law in Opposition to Higbee Defendants' Motion to Dismiss.

https://cases.justia.com/federal/district-courts/new-york/nyedce/2:2018cv03353/418211/11/0.pdf

As far as I can tell, the lawyer who brought it to my attention has no connection to the parties of the lawsuit. However, he appears to be interested in the topics we discuss here (as some of our other forum participants who might also be lawyers and who contribute valuable insights and perspective).

I am going to come right out and say, some of this is very difficult reading for a non-lawyer such as myself. But we have some smart legal minds who participate here and this might be right up their alley.  Some of the points makes sense to me. Other parts are more difficult. Additionally, there are references to many cases I am unfamiliar with.

The plaintiff is: Meyer, Suozzi, English, & Klein.  https://www.msek.com/

The four Higbee defendants are: Mathew Higbee, Nick Youngson, RM Media, and Higbee & Associates.

The case is listed here:
https://www.courtlistener.com/docket/7088874/meyer-suozzi-english-klein-pc-v-higbee/

The complaint can be downloaded here: 
https://www.courtlistener.com/recap/gov.uscourts.nyed.418211/gov.uscourts.nyed.418211.1.0.pdf

I am very impressed with the complaint because it includes and expands upon the many gripes I have against the whole Nick Youngson and RM Media's Creative Commons scheme that has entrapped so many victims.  I have been shouting and warning people about the scheme the last few years and it is satisfying to see a victim fight back so hard back and aggressively on the legal front.

Higbee & Associates have happily hooked their reputations on Youngson's & RM Media's ongoing Creative Commons entrapment scheme and now they are being called out on the legal front whereby a lawsuit was filed against the four Higbee Defendants.

I have repeatedly said over the years, these copyright "enforcers" get a little too money-happy, they become greedy, careless, and then hits the wrong defendant. That is when things start to unravel.

Youngson & RM Media ESPECIALLY (out of all the Higbee clients) has been asking for this to happen to him. He sits comfortably in the UK (way outside of the US) running his offensive, detestable Creative Commons $10 image entrapment scheme using a California lawyer to do all the collections dirty work scamming victim after victim. And I keep getting support call requests month after month over this.

There is no doubt I will be following this case. I am not qualified enough to digest and understand everything being argued but it won't stop me from trying...

I will have more to write after I further digest what is going on in this case.

75

Higbee Associates Letter & Lawsuits Forum / Re: Got Higbee letter today

« on: September 09, 2018, 11:52:32 PM »

Ethan Seven gave a good concise and sound answer that closely matches my thoughts:

Whatever you think about Higbee, I doubt they are reckless enough to pursue a claim after they knew it had no merit. They have too much to lose. Did you tell them that the image you used was not the one belonging to their client?  Did they show you a screenshot or some evidence of your using their client’s image?

If they got it wrong, email them and let them know.  I would not tell them anything else, but that you think the image you used is not the one you used. Do not pay a thing or talk about anything else until they prove you used their image.

Bottom line is this; I have my lowly little website for which I attempted to start a small tourism business, that never really got off the ground.     I took down today every single image just to make sure there's nothing possible still there, aside from the specific image in question.     Got the Higbee letter asking for $1800, they said they would settle for $1000 before I hung up on them.    I'm tempted to simply ignore these slimy folks for now.    Seems like some are saying it is unlikely they would pursue something more against 'small fry' like me for one stupid questionable image.    Opinions on that?