Higbee followup

[Hamilton66]

I am sure it is well meaning, but some of the advice you are receiving on this board is reckless and ill-informed.  It is also failing to emphasize your two most important facts: (1)  you are allegedly judgment proof (assumming you really don’t make much money) and (2) you have, what sounds like, a solid fair use defense. 


1.  “Hotlinked” is not a surefire defense in most cases.  The 9th Circuit partially embraced a inline linking defense in the Perfect 10 case, but other circuits have not.  This is a good example of why you should have an attorney review the facts as they pertain to you.  Too often non-attorneys who do not know the law and who will not be accountable for  unintended results of their the bad advice, are too inexperienced or too quick to do a proper analysis.  See the Leaders Institute LLC case out of the 5th circuit (Texas case #  3:2014cv03572) where the court ruled against the inline link defense: "To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.”     The fact that you used an inline link may make the case more speculative, and therefore less desirable to pursue, but it is far from a perfect defense. 

2.  Lawyer’s frequently ask to review insurance policies and sharing their opinion about the coverage is not an ethical violation if it is done with appropriate disclosures.  Furthermore, you have no standing to make this complaint unless you were harmed by the offer.

3.  These are absolutely your strongest points.  If you have no money or there is a fair use defense, which there probably is if the image is of the book (as you mentioned above) or from the book, let them know.  The sooner the better as it will relieve your stress and they will likely drop the case if you are correct or even close to correct. 

4.  I am pretty sure that you telling any lawyer that you are getting advice from a user forum or message board is only going to hurt your cause. 

5.  Filing complaints and threatening complaints is a waste of time unless they have real merit.    99.9% of bar complaints do not even result in an inquiry from the bar to the attorney.  The state bar associations are not going to make attorneys waste time with meritless complaints.   Any attorney who has been around knows this and does not care about these threats.

Counterclaims in court must have merit, otherwise, you risk getting hit with attorneys fees or, even worse, an anti-SLAPP motion (if the action is in an anti-SLAPP state). 

As offensive as they may be, these copyright mills are businesses.  No attorney who works on contingency wants to pursue, much less file a lawsuit against someone who cannot pay the judgment or who has a possible valid defense (which is sounds like you do).     Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use.    If you think you are dealing with an intern, look-up Higbee’s email address on the state bar web site and email or call him directly.    Do not give them any information other than you believe the use of the image constitutes fair use and you want to know why they think it does not. If your article is about a book and the photo is of the book, I would be shocked if they could argue around a fair use defense.

[clist]

@Hamilton66 are you a Higbee employee?

[clist]

Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use.

Sure.

This is exactly how you move to the front of the line.

GTFOHWTS

 If you have no money or there is a fair use defense, which there probably is if the image is of the book (as you mentioned above) or from the book, let them know.  The sooner the better as it will relieve your stress and they will likely drop the case if you are correct or even close to correct... 

Again, you sound like you work for Higbee....and with 1 post in your corner.... 

Just saying..

 

[kingkendall]

@clist

I had the same suspicion about Hamilton66.  I disagree the advice of the forum is reckless.  Farfrom it.  I also disagree with H's idea of contacting Higbee and making an arguement.  Save thatr for a judge if that were ever the case.  I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post. 

[clist]

@clist

I had the same suspicion about Hamilton66.  I disagree the advice of the forum is reckless.  Farfrom it.  I also disagree with H's idea of contacting Higbee and making an arguement.  Save thatr for a judge if that were ever the case.  I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post. 

Yeah. His post seemed very troll "ish".   

Additionally, I've read countless threads on ELI and have spoken to IP and Copyright attorneys and a lot of the statements made on this site were supported.  So I'm calling BS on the "reckless" statement as well.

With that said, I do believe that everyone's situation is different and because of this there is no "1 size fits all" solution. That's why its so important for everyone to take what they read on this site with a grain of salt and do their own due diligence to build and strengthen their case. 

Because at the end of the day, if you've been contacted by a troll ~ you need to get educated so you don't become another victim.

[Robert Krausankas (BuddhaPi)]

@clist

I had the same suspicion about Hamilton66.  I disagree the advice of the forum is reckless.  Farfrom it.  I also disagree with H's idea of contacting Higbee and making an arguement.  Save thatr for a judge if that were ever the case.  I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post. 

Yeah. His post seemed very troll "ish".   

Additionally, I've read countless threads on ELI and have spoken to IP and Copyright attorneys and a lot of the statements made on this site were supported.  So I'm calling BS on the "reckless" statement as well.

With that said, I do believe that everyone's situation is different and because of this there is no "1 size fits all" solution. That's why its so important for everyone to take what they read on this site with a grain of salt and do their own due diligence to build and strengthen their case. 

Because at the end of the day, if you've been contacted by a troll ~ you need to get educated so you don't become another victim.

Agreed, there is no magic bullet, short of paying the demand. From time to time we get opinions like this it's nothing new..Most of us are not lawyers and we don't have to play by those standards, which is largely why we suggest "unorthodox" strategies, and prefer the "street fight" mentality., While the op does bring up a few points worth noting, I doubt the case we are discussing would land in the 5th district, in Texas. It would be argued in the 9th district ( I'm fairly certain) where the perfect10 case argued.

Naturally there are always risks involved in being upfront and filing complaints, and even if the Bar association doesn't act, any attorney concerned about there reputation, would likely respond to a filed complaint, even it it went nowhere... Need I refer to Stingers Bar Complaint about one of Tim McCormacks attorney, who not only had to respond, but ended up having to hire an attorney? Do I need to mention the 100's of complaints filed against getty Image with the Washington AG, that each required a response? Do i need to mention that Getty images used to send out letters demanding upwards of 1000.00, and those days are now over, whilst they still send letters, the amount demanded is much more reasonable..Did Getty make these changes to "be nice"..I doubt it, or did they tire of the push back from unhappy, unsuspecting, and now educated people??.. I guess we'll never know the true answer, but I suspect ELI had at least a small impact on their methods.

[icepick]

I disagree with some of Hamilton's points. For example, I've never heard of standing being applied for ethics complaints. The issue for ethics discipline is the attorney's conduct alone, it doesn't matter if it had no measurable impact on anyone. Think of advertising violations for example.

In a normal world he has some points, but I don't think they apply in the bizarro world that everyone dealing with Higbee has stepped into. He is running a script, he does not respond to substantive issues. The person you are trying to discuss the issue with is an $18/hour bill collector, not an attorney.

He does file suits against people that are judgment proof, that filing fee is equal to $400 of free advertising to him to get bigger settlements from the next guy.

Most complaints do go nowhere, but using that as a reason to not make them is how the status quo endures. Only after enough people have had enough and the state bars start looking at this guy is he going to reform his operation. He can continue to troll all he wants within the rules, but he is currently crossing several lines with the deception, dishonesty, and misrepresentations he uses in communicating with defendants. He may think all the states he is licensed in are like California and do not have those rules, but he would be wrong.

Higbee doesn't follow the rules of reasonableness, so neither should anyone that has to deal with him.

[Karma]

This thread has been really helpful and helped inform my own response {do nothing} https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-emails-for-supposed-stockfood-america-image/

I'm happy to file complaints as well!

[Matthew Chan]

I have somehow missed Hamilton66's thread and will comment on it since you asked so nicely.  :-)

I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post.

[Matthew Chan]

Because someone asked me nicely to comment on your post, I will offer them inline...

I am sure it is well meaning, but some of the advice you are receiving on this board is reckless and ill-informed.  It is also failing to emphasize your two most important facts: (1)  you are allegedly judgment proof (assumming you really don’t make much money) and (2) you have, what sounds like, a solid fair use defense. 

There are many ways to being "uncollectible" vs. being "judgment proof". You can't really stop certain judgments from occurring but you can be "uncollectible" which is the next best thing.  You don't have to be poor to be "uncollectible." If you don't believe that, then go talk to collection agencies and collection departments and they will tell you that there are many stubborn people who are uncollectible because they rightfully or wrongfully are unwilling to pay. They dig their heels in. It is very hard to collect someone who is absolutely committed to digging their heels in. This is a FACT. This does not include any discussion of the strategic use of legal entities which is way beyond the scope of this thread.

1.  “Hotlinked” is not a surefire defense in most cases.  The 9th Circuit partially embraced a inline linking defense in the Perfect 10 case, but other circuits have not.  This is a good example of why you should have an attorney review the facts as they pertain to you.  Too often non-attorneys who do not know the law and who will not be accountable for  unintended results of their the bad advice, are too inexperienced or too quick to do a proper analysis. 

No one is going to be confused with any discussion forum being a source of personalized legal advice or review. It is a resource to open people's minds to the myriad options and possibilities.  The senior members of ELI are not going to apologize for sharing our opinions. And some of us actually live what we preach.  The very existence of ELI is based on free open discussions.  People take what they need or want and can eject the rest. People are free to hire Oscar Michelen (a highly credible lawyer) who supports and legal advisor to the ELI mission.

And because the law is always so clear and there is so much consensus, right?  This is the reason why courts all around the US are clogged and backlogged because lawyers on both sides are in so much agreement, right?  And this is why multi-millions of dollars are spent every 4 years to winning elections so the winning political party can have the right to appoint preferred justices in the federal courts and the US Supreme Court?  Because the law is always so clear and definitive, right?  Bullshit. Often it is NOT clear and who makes the better, stronger argument. Or the person who digs in their heels the hardest. Or what is most politically favorable.

4.  I am pretty sure that you telling any lawyer that you are getting advice from a user forum or message board is only going to hurt your cause. 

What if I told you that MANY lawyers have called, communicated, and/or paid me (a clear non-lawyer) over the years based on what I wrote on these user forums?  Are they morons for calling and getting my take on things?  I openly tell everyone I am not a lawyer and don't give legal advice but still want my opinions nonetheless? No one has to inform anyone of WHERE or WHO they get their information. I give a lot of little known factual information but I am not going to reveal every freaking source I got it from. But people who know me, I am very careful in what I state as facts or opinions. And part of keeping that reputation is I have on occasion made public corrections in errors of fact or opinion.

5.  Filing complaints and threatening complaints is a waste of time unless they have real merit.    99.9% of bar complaints do not even result in an inquiry from the bar to the attorney.  The state bar associations are not going to make attorneys waste time with meritless complaints.   Any attorney who has been around knows this and does not care about these threats.

So, basically you are saying that lawyers have no problems with receiving written complaints as long as they do not impact their public record? I don't mean to be insulting but that is one of the most NAIVE statements I have ever heard. Most lawyers don't want any negative written complaint about them in ANY FORM whether it is a public forum, state bar, Yelp review, lawyer rating review, RipOffReport, etc.  They may say they don't care but any lawyer who gives a shit about their reputation do care.  If we go into the ELI Forum archives I am absolutely certain we can find names of lawyers who were written about and subsequently left the extortion letter business. It is NOT a waste of time. There is generally a collateral negative effect in publicly and writing against those that would try to take your money.

Counterclaims in court must have merit, otherwise, you risk getting hit with attorneys fees or, even worse, an anti-SLAPP motion (if the action is in an anti-SLAPP state). 

Of course, they have to have merit based on fact. No is telling anyone to engage in reckless, defamatory behavior. Having said that, you are fear-mongering. There are MANY public cases where people make all kinds of outrageous statements in their pleadings. One only needs to pay attention to the news of all these outrageous claims. And anti-SLAPP is generally about using lawsuits to silence people from speaking out.  I don't see how someone fighting a copyright infringement accusation is going to be perceived as trying to silence a copyright plaintiff. I think you are conflating different issues with your statement.

As offensive as they may be, these copyright mills are businesses.  No attorney who works on contingency wants to pursue, much less file a lawsuit against someone who cannot pay the judgment or who has a possible valid defense (which is sounds like you do).   

I agree with this!

Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use.    If you think you are dealing with an intern, look-up Higbee’s email address on the state bar web site and email or call him directly.

Most People should not be calling. They should be using written communications. It is much more controlled and disciplined than a potentially reckless conversation.

Do not give them any information other than you believe the use of the image constitutes fair use and you want to know why they think it does not. If your article is about a book and the photo is of the book, I would be shocked if they could argue around a fair use defense.

I agree with this.

[Ethan Seven]

Just to be clear.  Being uncollectible is not something someone with assets just decides to do once they get a judgment. If you have assets, judgments are usually a very bad thing, especially ones from a federal court.   Being unwilling to pay or deciding to be “uncollectible” is not an option for 99% of the people who have one of the following things (to name just a few):

1. House with equity
2. Business with assets
3. Bank accounts with money in them
4. Receive a W-2 paycheck
5. A vehicle that is owned or worth more than is owed
6. Web sites with valuable domain names or traffic

A judgment can also screw a person’s credit for a longtime.  Some credit lines and loans can become payable if a person gets a judgment against them.

“A Lawyer” has previously posted some good information about judgments at

https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/

And  https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/

My advise, unless you have previously engaged in some very significant and often costly assets protection strategies, don’t get a judgment against you or your business.   

If you have assets worth preservering, hire a lawyer who handles copyright claims (preferably one with history of photo cases).   You may not need longterm representation, but you need a professional to review your case.

[Matthew Chan]

Of course, judgments are a bad thing and it is certainly preferred to not get one.  I never said it wasn't a bad thing but it ain't the end of the world. When I say "uncollectible", it should be obvious, I don't mean it in a literal or legal sense. It is an attitude with some street-attitude brain power behind it.  It is my hyperbolic term to mean "very difficult and expensive to collect that is not worth it".

If filing a lawsuit, getting a judgment and collecting cash and assets is so easy and inexpensive, why are any of us discussing extortion letters at all? Why should Higbee waste their time calling, pleading, and sending emails REPEATEDLY to convince people to pay?  They should be advising every client to file a lawsuit against everyone they believe can pay up.

If it was all so easy, why did Righthaven get pounded into the ground?  It if it was all so easy, why did the RIAA stop their lawsuit campaign years ago?  IF it was all so easy, why did Prenda Law and its ilk get put down like the dogs they were?

What about Masterfile that embarked on a copyright infringement lawsuit spree in the 2010-2012 era?  Why did they abruptly stop their lawsuit campaign?  Could it be that perhaps their lawsuit campaign became too costly? Could it be despite their many "winning" judgments, they ultimately lost money because they decided to listen to some "knowledgeable lawyer" who thought it was smart to file all these reckless lawsuits to "set an example" thinking that all these "easy default judgments" which supposedly includes reimbursement of legal and filing fees never actually translated to collecting cash? 

Of course, if someone is willing to spend unlimited time, energy, and money to collect on a finite judgment, it is possible to "collect" almost anything. But who in their right minds will spend unlimited time, energy, and money to do so?  Very few.  But judgments and the collection process can be a very arduous and expensive process. If it wasn't, you wouldn't have finance and collection companies constantly offering "settlements" even after a judgment occurs. And most people don't know that not all judgments don't exist "forever". Some do "expire". Please note my quotation marks so you don't take it literally.

And, if you think all these unpaid accounts with collection agencies and businesses are confined to the poor, renters, and people without a car and a house, I would say you probably have not seen enough. And if you think that the only people with unpaid judgments and debts are living homeless in a tent under a bridge, you clearly have not seen what I have seen.

I also happen to know how legal titles work with both real estate and vehicles. Unless you are a direct secured lender, it ain't so easy to take control the asset as you seem to be implying and squeeze spendable cash out of it. You have also not seen mortgage companies who won't foreclose even when they have every right to do so. It is very hard to squeeze cash from a knowledgeable person unable or unwilling to pay.

Regarding credit, I know plenty of people who have good and bad credit.  And the people with bad credit certainly are inconvenienced by not having good credit. But it ain't the end of the world. And bad credit can become good credit again if you know how to do it. Bank accounts can be closed and money can be transferred to accounts in different names. Most websites are not worth very much financially. Most websites are pretty worthless and I challenge anyone to take over most people's websites and try to squeeze spendable cash from it. If the owner walks away from the website, most websites become quite worthless.

If you want to help serve the Higbee cause by spreading gloom and doom, you can do that. Uninformed people who do not know the details and mechanics of the things you outline have few choices.  OR, they can get smarter.  And yes, there are defense lawyers who are experts who fight against collection lawyers. But you don't have to be an asset defense lawyer to adopt the strategies and tricks of the trade.

As a general rule, I respect lawyers but I have been around long enough and seen enough to know that there isn't a single lawyer that "knows it all". And there are many "knowledgeable" lawyers that discuss ivory tower theory vs. what happens on the streets which is what I base my statements on.

So, if people want conventional advice, people can just roll over because of an extortion letter and the threat of a lawsuit and pay up. Or they can smarten up and actually learn some finer points. And just so you know, people who succeed in beating back collection efforts don't advertise their victories. They win quietly.

Just like many victims who hunkered down for 3-years living with uncertainty under the statute of limitations pass? They stayed quiet and laid low until the 3-years passed.  And don't insinuate that the only people who hunkered down for 3-years are people who have no assets. I happen to know otherwise.

Bottom line, readers can your views and my views and they can decide for themselves if they want to perhaps get smarter and learn something about standing up for themselves and not getting taken advantaged of.

Just to be clear.  Being uncollectible is not something someone with assets just decides to do once they get a judgment. If you have assets, judgments are usually a very bad thing, especially ones from a federal court.   Being unwilling to pay or deciding to be “uncollectible” is not an option for 99% of the people who have one of the following things (to name just a few):

1. House with equity
2. Business with assets
3. Bank accounts with money in them
4. Receive a W-2 paycheck
5. A vehicle that is owned or worth more than is owed
6. Web sites with valuable domain names or traffic

A judgment can also screw a person’s credit for a longtime.  Some credit lines and loans can become payable if a person gets a judgment against them.

“A Lawyer” has previously posted some good information about judgments at

https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!/

And  https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/

My advise, unless you have previously engaged in some very significant and often costly assets protection strategies, don’t get a judgment against you or your business.   

If you have assets worth preservering, hire a lawyer who handles copyright claims (preferably one with history of photo cases).   You may not need longterm representation, but you need a professional to review your case.

[Ethan Seven]

Whatever failures those businesses had does not change the fact that 99% of the time judgments are quite easy to collect on when a person has assets.    Federal judgments last for 20 years and can be easily extended.  Those are facts.   

I am not helping anyone’s cause but people who are looking for help.  If a person has assets worth protecting, they need to speak to a lawyer who handles copyright law.   That lawyer can properly advise them on whether they should fight, settle or lay low.    That is not caving or giving in, that is getting educated and in position to make the best possible decision. 

[A Lawyer]

Of course, judgments are a bad thing and it is certainly preferred to not get one.  I never said it wasn't a bad thing but it ain't the end of the world. When I say "uncollectible", it should be obvious, I don't mean it in a literal or legal sense. It is an attitude with some street-attitude brain power behind it.  It is my hyperbolic term to mean "very difficult and expensive to collect that is not worth it".

This idea is premised on the assumption that the judgment debtor has to somehow give permission for the judgment creditor to be able to collect. If I had a judgment against you, I could just fill out a simple form, file it with the court to get a writ of execution and then walk into your bank (or have the sheriff do it) and the bank will immediately levy your account. If I know where you work, I can fill out a form and get your wages garnished. If I know that you own property, I can just go to the county recorder's office and fill out a simple form and put a lien on your property. etc etc etc.

Believe it or not, most of this stuff is pretty easily searchable on LexisNexis or other public records databases that most lawyers usually have access to. At that point, simply being uncooperative would not be as effective as a strategy as in the pre-litigation phase. Don't get me wrong, it still takes time and effort to do all of that, but if someone is going to go through all the trouble to get a judgment (which is usually the hard time-consuming part) I doubt they will just suddenly tap out and decide its "not worth it" to collect. Especially since they can easily turn it over to a professional collections firm who will take it on contingency.

[kingkendall]

I've tracked over 50 cases involving Higbee.  Not one has gone to trial.  Not one!  So why are we talking about judgements?
 
 That's the key folks.  Don't let a copy troll intimidate with legal threats because when you punch a bully in the nose they run away.