Meyer, Suozzi, English, Klein v. Mathew Higbee, Youngson, RM Media, Higbee Assoc

[Matthew Chan]

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.

[Ethan Seven]

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.

[Matthew Chan]

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.

[Ethan Seven]

The problem with those case is that they depend on the existence of a contract or a license.  Both RM Media’s website terms and the language in the Creative Commons Contract state that no license is granted until attribution is given.   They are conditions precedent to the granting of a license or formation of a contract.   So, I do not think the provisions are relevant. 

If the defendant were to provide the attribution and then remove the attribution, those provisions may govern, as a license would have been granted. However, I think the terms of the Creative Commons license RM Media uses states that the license is automatically revoked if attribution is removed.  How enforceable that automatic revocation is, I don’t know.   

[clist]

The problem with those case is that they depend on the existence of a contract or a license.  Both RM Media’s website terms and the language in the Creative Commons Contract state that no license is granted until attribution is given.   They are conditions precedent to the granting of a license or formation of a contract.   So, I do not think the provisions are relevant. 

If the defendant were to provide the attribution and then remove the attribution, those provisions may govern, as a license would have been granted. However, I think the terms of the Creative Commons license RM Media uses states that the license is automatically revoked if attribution is removed.  How enforceable that automatic revocation is, I don’t know.

The language on RM Media's [Nick Youngson's] website(s) has changed quite significantly since the RM Media / Nick Youngson honeypot scam began.

If one were motivated enough they could easily locate the original site [containing the original site language] via archive sites and demonstrate that the language contained on those website(s) was designed to encourage usage (commercial and non profit) of the "free" image(s) with very little emphasis placed on the "requirement" of attribution. 

[icepick]

I noticed the attorney representing Higbee is Rayminh Ngo again. Didn't I read about him getting pinched in another matter about practicing in NY when he is out West?

[TedStryker]

Meyer, Suozzi, English & Klein is a well known and well respected law firm on Long Island. They are very well connected politically and they are very careful in their practice. Kevin Schlosser is their top litigator and he is very careful with the cases he takes on.

The firm clearly doesn't want this $150,000 fake claim over their heads, so they went the declaratory judgment route. Higbee is going to want to settle if their motion to dismiss fails, because I think an adverse decision would end the Youngson honeypot case.

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.

[ohhellno]

Everyone impacted by Nick Youngson claims really should read and understand the Memorandum of Law filed by Meyer, Suozzi, English & Klein, P.C. in their case against Higbee and Youngson. Essentially it boils down to whether the attribution requirement of the Creative Commons license was a covenant (a term of the contract that would allow Youngson to sue for breach of contract and damages, but not copyright violation) or a condition (failing to attribute means that the license was invalid, and thus allowing Youngson to bring a copyright violation claim). The Youngson websites "mysteriously" changed for many images this summer to add language stating that attribution is a CONDITION, highlighting (IMO) that previously it was a covenant. Because most people make zero dollars off their images, they have no damages to sue under the covenant/breach of contract claim. Youngson also conveniently scrubbed the websites off the wayback machine around the same time, likely to hide the fact that it previously stated it was just "required" = covenant. Luckily we were able to capture an image before they did this, so we have pictures of the "before" and "after" showing how they changed the language on the website to try to retroactively make attribution a condition. I think that Youngson/Higbee realized they messed up, and so added the language to make their honeypot more effective. But what that means is that everyone caught up in this scam prior to the website being edited MAY have a strong argument that there was only a failed covenant of the license (which basically means no $ for Youngson/Higbee), but no basis for a copyright violation claim (where the big bucks are). Everyone getting letters from them should obviously consult an attorney in their jurisdiction, but I think the MOL is a useful read.

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

[Matthew Chan]

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.

[Ethan Seven]

I dug into the fine print of the Creative Commons 3 license.  The license is pretty clear that attribution is a condition, not a covenant.  In fact, it evens says the license is revoked automatically if the attribution is removed. 

My guess is that defendants win on their 12b6 dismissal or a motion for judgment on the pleadings. But then again, you never know what a federal court judge will do.

[ohhellno]

Interesting new development in the case. Yesterday Meyer firm filed for default judgement. It appears the court issued summons to Youngson and RM Media, and both defendants have failed to respond to either the summons or the complaint. Curious to see what's going on at the house of cards over at Higbee, and why their clients haven't responded?

[Ethan Seven]

Figures, when I finally stop checking, something happens.   

That is an interesting development.   The judge still has not ruled on the motion to dismiss filed by Higbee. 

I am sure there is a strategic reason why RM Media has not responded.  I doubt they would ignore it without a plan.  I am just not sure what it is. 

[Matthew Chan]

Without actually seeing the court documents, if what you say is correct in the firm filing for default judgment, it occurs to me that RM Media is executing an ELI strategy move I have discussed.  The default judgment will not likely touch RM Media because the schmuck is located in the UK and out of reach rendering the default judgment largely worthless.

See how that works? RM Media, through Higbee, can touch US Citizens but the reverse is not true. It is very hard to touch RM Media because Youngson is sitting comfortably out of reach.

Interesting new development in the case. Yesterday Meyer firm filed for default judgement. It appears the court issued summons to Youngson and RM Media, and both defendants have failed to respond to either the summons or the complaint. Curious to see what's going on at the house of cards over at Higbee, and why their clients haven't responded?

[ohhellno]

Lots of new activity on this case, anyone have a Pacer account to access the docs? Would love to see what's going on at the dumpster fire:

https://www.pacermonitor.com/case/24735615/Meyer,_Suozzi,_English__Klein,_PC_v_Higbee_et_al

[Robert Krausankas (BuddhaPi)]

i'll try to get into pacer this weekend , see what there is worth grabbing..