Higbee followup

[notarget]

I originally posted here:

http://www.extortionletterinfo.com/forum/legal-controversies-forum/got-an-extortion-letter-from-higbee-asking-for-$15k/msg21589/

But this forum has lots more traffic so I thought I'd continue here.

I've gotten two more emails from Higbee, three and seven days after the first one.

Here's letter #2.

Subject: Ignoring this Problem Will Only Make It Worse

This is a follow-up to the letter and email that we sent you regarding the unauthorized use of copyrighted materials owned by our client, Michael Grecco. We want to work with you to resolve this in an efficient and fair manner.

Ignoring this problem will likely result in a dramatic increase in costs and stress.  Please call us or go to our secure online Resolution Center and either make a payment or let us know why you believe you do not owe money for using our client’s work.

And, here is #3.

Subject: There is Still Time to Save Money & Reduce Stress

We mailed you a letter and sent two follow-up emails about the unauthorized use of our client’s copyrighted materials. It is our client’s hope that this matter could be resolved without incurring more costs than his have already incurred. Yet, we have not heard from you.

US Copyright Law provides strong protection for owners of copyrighted material. If he is forced to file a lawsuit to resolve this matter, you could be liable for damages that are many times more than what my client is now requiring,  as well as his attorney’s fees -- not to mention your own attorney’s fees. It simply makes no sense to ignore this issue, especially, when our client is willing to work with you on resolving it.

If we do not hear from you within about one week, we will recommend that our client consider simply filing a lawsuit.

Please call us or go to our secure online resolution center and either make a payment or let us know why you believe you do not owe money for using our client’s work
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I've done some research and here are the issues I see with Higbee's claim.

1. I have an <img src="xxxxxxxxx"> link so I'm not even hosting the image.
2. His extortion letter acknowledges that I'm not hosting the image since the infringing file location is listed as being on a Barnes & Noble server. Does Barnes & Noble get the rights to use every book cover image they host and display?
3. The image in question is the cover of a book referenced from a blog article about said book. Does the publisher (who I imagine is happy that I'm promoting the book) own the rights to use the image or does Mr. Grecco?
4. The photographer's image is only part of the book cover. I'm not sure if that negates his claim or not.
5. There are literally millions of hits for that image in a Google image search.
6. It seems to be a bit of a gray area but using an image of a book cover in a book review strikes me as fair use, especially since my blog is a small one that doesn't make any money.

I'm not particularly worried about Higbee taking me to court except for the nuisance factor. Plus, there's no money in the corporation running the blog for him to get.

I've ignored Higbee so far. I'm posting info here anonymously in the hope that others who get the same extortion letters don't just roll over and pay. There's strength in numbers!

Thoughts on how I should proceed? Thanks.

[notarget]

p.s. Here's something I'm scratching my head about. Higbee brags about having an A+ rating with the BBB. And, he's right as you can see here: https://www.bbb.org/sdoc/business-reviews/lawyers/higbee-associates-in-santa-ana-ca-100071532
But, he's got 3 positive reviews, 1 neutral review, and 4 negative reviews. In what universe does half the reviews being negative earn the business an A+ rating? The BBB site has an explanation of how they determine the rating which makes no sense to me. And, yes, I do get that resolving complaints improves one's score but there are some supposedly resolved complaints that haven't been confirmed by the customer.

[icepick]

The e-mails sound like an autoresponder system he must have setup recently, I haven't heard of those before. A quick Pacer search did show some cases with a Michael Grecco as plaintiff in NY and MA are the only places I believe and those were cases with a different firm than Higbee. I'd look at the case details and maybe take it a little more seriously than some pure troll cases depending on the details.

[Robert Krausankas (BuddhaPi)]

--------------------
My comments below in bold

I've done some research and here are the issues I see with Higbee's claim.

1. I have an <img src="xxxxxxxxx"> link so I'm not even hosting the image.
Therefore no infringement occured, see perfect10 v google

2. His extortion letter acknowledges that I'm not hosting the image since the infringing file location is listed as being on a Barnes & Noble server. Does Barnes & Noble get the rights to use every book cover image they host and display?
the book publisher probably has a license to use the image, the license is probably non-transferrable to B&N ( as most licenses are), but i'd be willing to bet the license is "rights managed" allowing  B&N to use the image

3. The image in question is the cover of a book referenced from a blog article about said book. Does the publisher (who I imagine is happy that I'm promoting the book) own the rights to use the image or does Mr. Grecco?

Grecco owns the rights to the image itself, the publisher has a license to use said image

4. The photographer's image is only part of the book cover. I'm not sure if that negates his claim or not.
it wouldn't negate the claim, IF he had one, he DOESN"T

5. There are literally millions of hits for that image in a Google image search.

irrelevant in the grand scheme of things, a portion of those "hits" may be from legit license holders, some are likely linked form B&N like yours, and some are probably copies.. Mathew Higbee is NOT a copyright attorney,
 he's an ambulance chaser trying to make a quick buck, by chasing low hanging fruit.

6. It seems to be a bit of a gray area but using an image of a book cover in a book review strikes me as fair use, especially since my blog is a small one that doesn't make any money.

There are 4 criteria to meet in order to obtain fair use status, this is one of them, IMHO you also meet the 3 others, which just goes to show how dumb Higbee is.. If it were me, I would be publicizing his letter and screaming from the hill top that he is an idiot and a douche-bag.

I'm not particularly worried about Higbee taking me to court except for the nuisance factor. Plus, there's no money in the corporation running the blog for him to get.

I highly doubt he or Grecco will sue over this, and if he does, I hope you consider counter-suing, to turn the tables on him, he would have a tough road ahead.

Thoughts on how I should proceed? Thanks.

This is completely up to you, i know if it were me, I would respond, and tell higbee ( without laying out my defense, let him figure that out on his own, or let him take a chance.) that he can go pound sand, and this if he continues to pursue this, you will seek legal action, in the meantime I would file complaints with the bar associations and attorney general of california, and you home states AG, to put him on notice.

[Robert Krausankas (BuddhaPi)]

p.s. Here's something I'm scratching my head about. Higbee brags about having an A+ rating with the BBB. And, he's right as you can see here: https://www.bbb.org/sdoc/business-reviews/lawyers/higbee-associates-in-santa-ana-ca-100071532
But, he's got 3 positive reviews, 1 neutral review, and 4 negative reviews. In what universe does half the reviews being negative earn the business an A+ rating? The BBB site has an explanation of how they determine the rating which makes no sense to me. And, yes, I do get that resolving complaints improves one's score but there are some supposedly resolved complaints that haven't been confirmed by the customer.

The BBB is useless, their "ratings" mean nothing, there are a for profit business trying to sell memberships to advertise peoples businesses, who gives a rat ass how they calculate anything.. and BTW I've had clients who posted the BBB logo on their sites linking to their profile, and they have gotten letters from the BBB demanding they "become members" and to remove the logo unless they do so.

[notarget]

Robert,

Thanks for the engagement. At this point I'm going to not respond and I'll continue to post the letters I receive here. That way, if there are folks who are afraid of Higbee, they can get a reality check here.

I assume that, if someday he decides to have Grecco actually sue me, that I will have ample time to respond.

[notarget]

Here's email #4:

Subject: Case Manager Introduction

My name is Michael.  I am a Claim Resolution Specialist at the Law Firm of Higbee & Associates.   My job is to help resolve copyright claims without them having to go to court.  I will be calling you soon to talk about a letter the law firm sent you involving a potential copyright claim by Michael Grecco Productions, Inc.   If you have not received it, I can provide you an electronic copy.

I am not one of the attorneys.  I have about 14 days to try and resolve this claim before the claim gets escalated to the attorneys.  The claim gets more stressful and expensive when it gets moved to the attorneys— my goals is to not let that happen to you.

Here are a couple of things that can help solve this potential problem:

First, if you have a license for the image that was purchased prior to the image being used, please let me know and provide it to me via email.

Second, most business liability insurance policies covers this type of claim.  Please contact your insurance provider.  If they say they do not cover this type of claim, I will be glad to have one of our attorneys review your policy to see if they are wrongfully denying you coverage.  It is in both of our interests to make sure your insurance provider is not denying you coverage that you paid for.

If you did not have a license or proper business insurance, we can talk about how to come to a reasonable resolution.  I will call you soon.

In the meantime, feel free to email me or call me on my direct line at 714-617-8363.

Thank you,

Michael Adela
Claims Resolution Specialist

[Robert Krausankas (BuddhaPi)]

If and when this idiot calls, make sure to record it! California is a 2 party consent state, but that doesn't really matter much, you can always announce you are recording, and chances are he'll hang up.. the one good thing about this situation, is the time and energy they are wasting.. If it were me I would welcome this to get escalated to an attorney, so I could string them along, and suck up as much of their time as possible...I'm nice like that!

[Matthew Chan]

I agree with Robert. I am not a big fan of the BBB. They have done a good job promoting themselves and they have a lot of businesses suckered.  They are only good for very limited purposes.

I have gone through them a couple of times just to see how they worked. They are generally not consumer-friendly. I have learned to handle situations without their help.

Their website, however, is good to see complaints that have been filed. Perhaps, the BBB is learning from Yelp that if you want your ratings to mean something, you have to be impartial otherwise people like Robert and me will tell others that their "A" ratings might actually be meaningless.

People who really want to get the lowdown on a business have to go to multiple review sources look at the aggregate and not depend on any single source. 

I know plenty of businesses who don't use the BBB logo but they still get many good reviews because they know how to link and refer people to review/feedback sources.

The BBB is useless, their "ratings" mean nothing, there are a for profit business trying to sell memberships to advertise peoples businesses, who gives a rat ass how they calculate anything.. and BTW I've had clients who posted the BBB logo on their sites linking to their profile, and they have gotten letters from the BBB demanding they "become members" and to remove the logo unless they do so.

[Matthew Chan]

Of course, they will not tell you that ANY claims is a strike on your account, will likely be reported to LexisNexis, and subject to premium increases.  People who have too many claims (across multiple lines like auto, property, and business) can find themselves with higher premiums or even denied coverage.

I know one guy who cannot easily get business insurance because he had too many claims over the years and he is being denied as a customer.

People who want to check their credit reports as it relates to insurance should pull their file from LexisNexis.

Most people know about the big 3 credit agencies: Equifax, Experian, and Transunion. Most people don't know that many insurance companies go to LexisNexis to check up on someone's insurance history.

I recently pulled my LexisNexis report, it was a thick pamphlet due to all the policies opened and closed over the years as well as my many moves over 25 years, and there are Lexis entries that go back 20 years! And there were claim hits I totally forgot about.

Second, most business liability insurance policies covers this type of claim.  Please contact your insurance provider.  If they say they do not cover this type of claim, I will be glad to have one of our attorneys review your policy to see if they are wrongfully denying you coverage.  It is in both of our interests to make sure your insurance provider is not denying you coverage that you paid for.

If you did not have a license or proper business insurance, we can talk about how to come to a reasonable resolution.  I will call you soon.

[notarget]

One thing I'm starting to wonder about is whether Higbee will continue to harass me for the next three years. I don't believe he has a case, I have ZERO interest in giving him any money, I'm not afraid, and I need to start thinking about how to make him go away. And, I'm in no rush to take any action.

Sure, I can screen calls and, if I accidentally answer one of his calls, I'll tell his rep that I'm recording the call. I'll put him on speaker phone and record via my cell phone's recording app. (I'm in a one-party consent state but he's in CA which is a two-party consent state so I'll let him know I'm recording.) If he somehow doesn't hang up I'll listen and not offer up any information.

Thoughts on how I might proceed to make him go away? Yes, I might pay for that 30-minute phone call if he annoys me enough.

Thanks!

[Matthew Chan]

You are making this too complicated and being too polite. No one is obligated to take anyone's call even if you accidentally pick up the phone. You just hang up immediately and block that number.  I will not hesitate to hang up on anyone if it is an unwanted call.

And while I am not encouraging anyone to commit illegal acts, but people do it everyday

If you took a pen without permission even unintentionally, you broke the law. If you took a washcloth from a hotel even unintentionally, you broke the law. If you drive over the speed limit, you broke the law.  Same with running a red light and not coming to a full stop at a stop sign. You are breaking the law.  You engage in certain sexual acts with a consenting adult in the privacy of your own home, in some states, you are breaking the law by performing those specific sexual acts. If someone (like a neighbor) besides a postal worker puts something inside your mailbox, they broke the law.

My point is that recording a phone call for private use using a private app (even in a one-party consent state) is not something society at large or local police are interested in prosecuting. Those recording laws were intended to be used for other purposes, not someone who is trying to defend themselves against unwanted and unruly calls.

And who is going to report you to the police for recording an unwanted phone call ? Higbee? They will sooner file a lawsuit and have you served than report you to the police for recording their phone call. The aren't interested in having you prosecuted. They just want your money. And the way to your money is through the civil process, not the criminal justice system.  People really need to get grip on reality and think.

In any case, I have heard a few recorded Higbee voicemails submitted to me from victims. The voicemails are pretty tame and generally respectful and professional. Not much of a "gotcha".

And no one is required to "go away" unless you want to push the issue and deliver to them a cease-and-desist letter. But even if you did that, then what?

Focus on what you can do. You cannot stop them from sending 100 demand letters to you or make 100 attempts to make phone calls. But you can toss them and block the calls. If you must, you can even change your number.

Problem solved.

One thing I'm starting to wonder about is whether Higbee will continue to harass me for the next three years. I don't believe he has a case, I have ZERO interest in giving him any money, I'm not afraid, and I need to start thinking about how to make him go away. And, I'm in no rush to take any action.

Sure, I can screen calls and, if I accidentally answer one of his calls, I'll tell his rep that I'm recording the call. I'll put him on speaker phone and record via my cell phone's recording app. (I'm in a one-party consent state but he's in CA which is a two-party consent state so I'll let him know I'm recording.) If he somehow doesn't hang up I'll listen and not offer up any information.

Thoughts on how I might proceed to make him go away? Yes, I might pay for that 30-minute phone call if he annoys me enough.

Thanks!

[notarget]

Matthew,

Thanks very much for the tough love and for the reality check. I really appreciate it. I sent a little cash your way. Have some drinks on me!

I've changed the voicemail greetings on my landline and cell phone to be the computer voice that reads my phone number. So, no identifying information. If Higbee doesn't engage in caller ID spoofing or call from a pile of numbers then I'll block his number. And, I'll add to this thread if anything of interest happens. And, yeah, I can switch to an unlisted number if I get tired of this.

Thanks again, Matthew.

Life goes on.

[Robert Krausankas (BuddhaPi)]

Thoughts on how I might proceed to make him go away?
Thanks!

I can tell you what I would do in your shoes, it would take some additional time /effort, and there is naturally a risk factor involved, but it may work to make him go away..

1.  File complaints with the CA state attorney General, as well as your states AG. He would need to use valuable time to respond to these complaints, which is bit of pay-back
2. File bar complaints with the CA Bar Asociation and if he is licensed to practice in your state, file with that Bar as well...again he would need to waste time to respond...more payback, and a showing you won;t easily be bent over.
3. Publicize his name, and those of the trolls under his employ on every online outlet that comes to mind...here, reddit, ripoff report, twitter, FB..not all publicity is good..

you need to harp on the fact that Higbee is not a copyright attorney, and harp on the fact that the image in question was linked, and never resided on your servers, therefore there was no infringement..

Just for good measure, when making your complaints I would demand a formal apology in writing from higbee, just to make him squirm, and fess up to being an asshat...not that he would do this, but when he doesn't it's one more thing you can publicize.. bottom line is , if he is going to pester you, you need to pester him more.

[icepick]

If you want the info on filing Bar complaints in any of the states Higbee is licensed in, I compiled the info in this thread http://www.extortionletterinfo.com/forum/getty-images-letter-forum/if-you-want-to-file-a-complaint-against-higbee/

I especially think he is vulnerable with how they frame the request for copies of business insurance policies. The non-existence of such a policy would not wash away any ethics violation it represents.