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Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: December 06, 2017, 01:16:28 AM »
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.
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.