Calling Out Copyright Troll Mathew Higbee

from the copyright-trollin'-trollin'-trollin' dept

Over the last few months, I’ve been hearing an awful lot about a copyright trolling operation that goes by the name Higbee and Associates. We had written about them years back when they (incredibly) threatened Something Awful for using a photo in a movie review (which was clear fair use). A few months back we wrote about them again when they (you guessed it) threatened Something Awful again over someone in its forums hotlinking a picture of Hitler that was actually hosted on Imgur.

While that’s all we’ve written about the firm on Techdirt, Higbee’s name keeps coming up in other conversations — among copyright lawyers who have been seeing a massive increase in Higbee demand letters, and even from some friends who have received such letters (which nearly always involve clearly bogus threats). One thing that has happened over and over with Higbee claims that I’ve been privy to is that they are over unregistered images, meaning that Higbee is unlikely to actually be able to sue over those images, and even if they could, it wouldn’t be for statutory damages. And yet, the threat letters tend to allude to statutory damages are part of the scare tactic.

Public Citizen’s Paul Levy has apparently seen enough of Higbee and Associates and their trolling activity that he’s done a pretty thorough investigation of Higbee’s activities and written up a long description calling out many of the sketchy practices of the firm and its principal, Mathew Higbee:

Either in concert with a specialized search firm or using his own firm’s software, this firm patrols the Internet looking for graphics (especially photographs) that have been copied improperly from online sources. The firm then sends a demand letter bearing Higbee’s signature, threatening to seek up to $150,000 in statutory damages as well as attorney fees unless the target of the letter promptly agrees to pay a specified amount. Deploying a tactic that is all too familiar from the depredations of Evan Stone and Prenda Law, the specified amount is low enough – usually in the low four figures, but I have seen high three figures —that it is not likely to be cost-effective for the target to hire a knowledgeable copyright lawyer to litigate an infringement lawsuit, even if the claim is bunk or, at least, if there is good reason to believe that the claim can easily be defended. The letter encloses a document identifying the allegedly infringing use as well as the online location where the work was found; another document that purports to authorize the firm to represent the copyright holder in seeking damages in connection with the work; a proposed “settlement agreement”; and a credit card payment form. If the target of the letter does not respond, or responds without agreeing to pay, then the Higbee firm increases the pressure: a non-lawyer who calls herself a “claim resolution specialist” sends an email warning that the claim is going to be “escalated to the attorneys,” at which point “[t]claim gets more stressful and expensive,” and an assurance that “my goal is to not let that happen to you.”

The documents linked above all relate to a single Higbee demand to a single target, but I have seen a number of other demand letters and ensuing emails from this firm, and spoken to several other copyright lawyers who have helped clients respond to Higbee’s blustering and threats, and it appears to me that these are pretty standard exemplars. Indeed, when I was reaching out to some other copyright lawyers to try to get their sense of some of the documents I was reviewing, a number of them guessed that it was Higbee based only on what I said I wanted to ask about, based on work they had done for their clients trying to address his threats against them. Plainly, this is a copyright troll with an outsized reputation.

Levy took on a client who had received one such letter from Higbee and noticed a bunch of problems with Higbee’s standard practices:

More than six years later, on January 2, 2019, Mathew Higbee sent HUFF his demand letter, accompanied by the other documents described above. Several things jumped out at me. First, instead of reciting that the copyright in the photograph had been registered, and either attaching the registration or at least citing the registration number, the letter recited the photo’s “PicRights Claim Number” – a matter of utterly no consequence for the recipient of the demand. The registration number, by contrast, is far more significant in this context, because, for most copyrighted works (the exception is discussed below), a copyright holder cannot bring suit for infringement until the copyright has been registered, and regardless of the exception, a copyright holder cannot seek statutory damages or attorney fees for infringements that take place before registration, or even for infringements that continue after registration unless the copyright was registered promptly after the work was first published. Because this photograph appeared in the New York Times within a day after the photo was taken, and more than six years before the demand letter was sent, a failure to register would have meant that the letter’s warning about statutory damages and attorney fees was an empty bluff meant to intimidate.

Second, the letter was plainly a boilerplate form, containing somewhat stilted language that was poorly adapted to the specifics of HUFF’s claimed infringement. For example, the letter varies back and forth between referring to the recipient in the second and third person singular, suggests that HUFF might have its wages garnished, warns of action against “the business owner,” and refers to “the attached exhibits” even though only one exhibit was attached. Indeed, the “representation agreement” that was provided along with the demand letter, purporting to show that Agence France-Presse, PicRights and a European version of PicRights had authorized Higbee to pursue claims on its behalf about HUFF’s alleged infringement with respect to this specific photograph, did not identify the photograph but simply indicated that Higbee was handling “a copyright infringement matter.”

Third, the exhibit revealed Higbee’s recognition that the “infringing location” for the copyrighted work was not HUFF’s own web site but rather the web site of the New York Times which, presumably had licensed the photograph (I was able to confirm that assumption by contacting the Times’ legal department). And the Court of Appeals for the Ninth Circuit has decided, in Perfect 10 v. Amazon, that Google does not infringe a photographer’s copyright by including images in its search results, because American copyright law does not prevent the “framing” of deep-linked images that actually sit on the server of a party that is entitled to display the photograph and serve copies of the image to visiting viewers; it is only displaying and distributing from the defendant’s own server that violates the copyright laws (the “server test”).

Levy goes into great detail about his interactions with Higbee that are well worth reading. I will only post a snippet here, but I recommend going through and reading the whole thing. Levy first told Higbee that he planned to go to court ahead of Higbee and file for declaratory judgment of non-infringement, and suddenly Higbee started throwing everything he could at the wall:

What followed was a rapid retreat by Higbee, accompanied by some truculence while, at the same time, he signaled his recognition both that he had no basis for seeking any monetary relief for his client, and that I knew that he hadn’t a leg to stand on. First, he sent me an email on February 1, dropping PicRights as a client, insisting that he had a viable basis for suing on the image (while implicitly admitting that his client had not registered the copyright), and implicitly dropping as well the demand for $1775; instead, he asked me to make “some reasonable offer” comparable to the cost of filing a federal court complaint ($400) as well as service costs (which would have been free under the waiver of service procedure”). The redacted email address on the cc line was my client’s email, violating his ethical obligations given that the client was represented by counsel. (In a separate email chain, Higbee tried to excuse this violation by claiming that he had no idea I was a lawyer, but I found that statement less than credible, particularly considering that I know of at least one other situation in which his firm made contact with a party after an attorney contacted the Higbee firm on the party’s behalf in in response to the demand. Higbee also asked me how a lawyer not belonging to the California Bar could help a California client in a copyright matter. The mere fact that he thought he had to make this point told me how desperate he was getting to avoid the merits).

Levy also details another case, in which another recipient of a Higbee letter tried to take Higbee (not Higbee’s client) to small claims court, and Higbee then dragged the case into federal court while at the same time insisting he had closed the case:

In the meantime, I learned about some astonishing developments regarding a demand letter that Higbee had made to a community college professor named Claudia Eckelmann relating to the inclusion of a cartoon in the online syllabus that she had provided for her students’ edification. She responded to Higbee’s demand letter and subsequent bullying emails by filing a complaint against Higbee’s firremoving the state-court proceeding to federal court, asserting both that the court had subject-matter jurisdiction because the dispute was really about copyright infringement (Higbee seems to have ignored the rule that, for a removal to be proper, federal jurisdiction has to be shown on the face of the state-court complaint, and the state complaint does not make clear whether Eckelmann seeks a declaration of non-infringement or a judgment under state unfair business practices law). Indeed, his notice implicitly suggests, at the same time, that there was no case or controversy because, given Eckelmann’s recalcitrance, his firm had decided to “close” the case. Of course, if there was no case or controversy there would be no Article III jurisdiction to hear the removed case.

There’s a lot more in the post, but it pretty thoroughly demonstrates the sketchy nature of many Higbee letters, which appear designed to do little more than just get people to pay up over exaggerated claims. Somewhat incredibly, Levy got one of the people who work for Higbee to be a lot more honest about the situation than Higbee himself. Of course, this only occurred after Higbee claimed the case was “closed” and yet his employee was still demanding money…

The HUFF matter would have ended with Higbee’s statement to me that he had “closed” the case, as he claimed to have done with respect to Eckelmann, except that, a couple of days later, I received this remarkable email from one of Higbee’s “claims resolution specialisists,” Rebecca Alvarado. Here she was, AFTER her boss had “closed the case,” responding to my initial email to Higbee on behalf of HUFF, and warning that, despite my points, the “fact is there is a copyright claim on the table” and that she was “willing to work with me to see that the claim is resolved.” She gave me her direct line, so I called her to find out just what resolution she had in mind, as well as what she might tell me about the nature of the firm’s practice.

The call was enlightening. Unlike Higbee, who never directly responded to my question about whether the copyright was reg…, defensively, that the demand letter did not say that statutory damages would be sought, but only that these might be “possible” in some circumstances. She told me that her client was only seeking actual damages, in terms of the lost licensing fee — but she could not tell me what that licensing fee was (so, how could she “resolve” the copyright claim?). And she admitted that her firm’s business model involves paying its clients a fractional share of the moneys that they wring out of their victims. She told me that she did not know what the fraction was, but Higbee told Fast Company that clients who came to him through a no-longer-existing service called “Copypants” received 50% of the financial gain. Moreover, he boasted as well that some 75% to 80% of the targets who receive his demand letters pay him without having to be taken to court.

I recognize that photographers who hire Higbee may think they’re getting in on some new revenue stream, but when that comes at the expense of ethically dubious shakedowns, they might want to think twice.

Meanwhile, Higbee has shown up in the comments to Levy’s post to “defend” himself by insisting that everything his firm does is totally aboveboard, and sometimes things just fall through the cracks in deciding who to send shakedown letters to (that would be more convincing if we didn’t keep seeing more and more of them from Higbee, with nearly all of them being questionable):

Our clients choose which cases we pursue. Generally, our clients choose to have us only pursue unauthorized use of their work by persons or entities that provide or promote goods or services for a fee, generate ad revenue, or solicit contributions. We never intentionally pursue private non-commercial infringements. That being said, often times it is difficult to accurately assess an infringer based on the limited information available, especially when the natural tendency of most websites is to make the entity look bigger and more successful than it is. Whenever we discover a case is outside our firm’s or our client’s enforcement parameters, we close it (even if offers to settle have been received) and take any necessary steps to prevent similar errors in the future.

While this may be true in some cases, in at least a few cases I’m aware of (including the SomethingAwful cases), I find this nearly impossible to believe. And, of course, we’ve heard similar pleadings from the likes of earlier copyright trolls like John Steele of Prenda and Evan Stone. Higbee is building up a reputation and it’s not a particularly good one.

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Comments on “Calling Out Copyright Troll Mathew Higbee”

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That One Guy (profile) says:

Re: 'And if you don't shake up, I'll wag my finger at you too!'

ethics complaint in 3…2…1…

Honestly, in his shoes or anyone else making use of the same ‘business model’ someone talking about an ‘ethics complaint’ would be as threatening as them saying that they’ve got a friend who could light their aura on fire with their mind. Sure it might result in something, but odds are pretty good it’s nothing but a empty threat.

Really, what’s the state bar going to do, send a sternly worded letter? One needs look no further than Prenda and the fact that, unless I missed something not too long ago, one of the main players in that gang still has his license to see that threatening to report someone to the bar is a beyond a joke, nothing but hot air just as solid as the ‘evidence’ such parasites shake people down over.

James Burkhardt (profile) says:

Re: Re:

To add on to Thad’s comment, as we see in the comments here, there are large swaths of people invested in fighting piracy who take any effort to suggest that abuse of the system is no big deal. These people are often backed by the legacy powers with big pockets.

Contrastingly, the fraud is, on an individual level, pretty small. An elected AG can’t make a name for themselves off the individual complaints. And there is enough chaff from big powers that it takes a lot for the AG to see the forest rather than the trees.

The check within our system is supposed to be the courts and the various state bar associations. But the costs of actual court defense are high, and even then state bars have been reluctant to then assess real penalties for the behavior.

That One Guy (profile) says:

Re: Re:

Only when it doesn’t involve The Holy Copyright, Upon Which Society Itself Rests.

The law, judges and lawmakers seem to suffer instant brain-damage the second copyright enters the picture, such that an action that would be blatantly illegal in any other instance is given a pass if not defended so long as one side hides behind ‘copyright’.

That One Guy (profile) says:

Eat your heart out mafia

Walk into someone’s place of business, talk about what a ‘nice’ place it is and how ‘tragic’ it would be were something to ‘happen’ to it, and I imagine most judges and lawmakers would see right through the facade, understanding in an instant that it’s an attempt to shake someone down via threats.

Send someone a letter/email making accusations of ‘infringement’, throw around baseless claims of ‘damages’ over a hundred thousand someone ‘could’ be on the hook for, and ‘generously’ offer to settle for just a few hundred/thousand though? Odds are good you’ll get away with it for years, as if any of your would-be victims every try to fight back you just tuck your tail and drop the case like a cowardly bully, almost as though your ‘ironclad proof’ can’t stand up to actual examination in court.

Organized crime has got to be kicking itself for choosing the method of shaking people down that brings the heat, rather than the easy one where in the worst case scenario the vast majority of the time you can simply cut and run and your mark is left with nothing but their legal bill.

carlb (profile) says:

Re: Re: Eat your heart out mafia

There’s nothing prohibiting organised crime from obtaining copyrights, nor preventing them from trolling, much as there is nothing preventing a 1%’er motorcycle club from using trademark to coerce some comic book company to rename a character from "hell’s angel" to "dark angel". For that matter, Mein Kampf was copyrightable material – although that status recently expired.

Anonymous Coward says:

Re: Re: Re: Eat your heart out mafia

The copyright has been abused by some evil layers/attorneys to benefit themselves looting the ordinary people like us. We feel so helpless. Who is going to stop such inhuman activities? What about people who don’t even have the means to respond to their threats? Layers charge money even to give a little advice.

Anonymous Coward says:

Having formerly worked for a website hosting company and having seen more than my fair share of copyright takedown and shakedown letters… It’s common for the enforcement companies to claim innocence in a troll situation and fall back on the position that their clients tell them what to pursue.

This is because of the business model, where automated software finds the alleged infringement, then forwards a list to the client, who will provide some form of approval by checking a box or clicking a button on each supposed infringement, then off goes the takedown/demand letter.

Since, of course, your average small business owner knows very little about copyright law, that just leads to every box being checked.

Really, the so-called enforcement companies, who claim to be copyright "experts", should be reviewing the results of their automation to determine if the "infringement" is valid before sending it to their client to decide if they want to pursue. After all, they are supposed to be the experts and should be able to say "nope, that one’s not infringement, we won’t even bother our client with that."

But then, none of that matters because 512(f) has no teeth.

Glenn Reiser says:

Higbee Troll

This firm tried to shake my law firm down for a royalty free scrabble photo that we used on our website. Apparently we neglected to post credits to the author. They were all over us as if we had committed a federal crime. Took the photo down immediately, but they kept persisting with their ridiculous ransom demands. I don’t even believe it was a copyright violation; at most it was a breach of the royalty free license agreement.

In any event, after Higbee sent me a draft complaint that he signed as counsel of record, which threatened my firm with several hundred thousands of dollars , I discovered that no one in his law firm was admitted to practice law in New Jersey. After threatening to report him to the California Bar for the unlicensed and unauthorized practice of law, he backed off and hid under a rock. Never heard from the troll again.

Kathleen Jacobs (profile) says:

Re: Higbee Troll

Hi Glenn
The same has happened to a client of mine in upstate NY. I have read that they claim to be licensed in NY but are not.
How would I find if they are now able to practice here and if that makes a difference?
Thank you in advance for any help

Has anyone ever been actually served by these clow says:

Just wondering if anyone has ever had an actual lawsuit filed against them by this troll. I’m guessing his entire business is to shake down naive webmasters by circumventing the DMCA process. Plus, if the copyright owner is plastering images all over the web with watermarks and copyright notices removed, it’s their own fault if it gets picked up and used. It’s like dropping twenty dollar bills all over town and busting anyone who picks them up.

There’s so much they would need to prove to a judge, the first is that their client didn’t upload the pic to a blog, then send Higbee to go after them. That’s impossible to prove or disprove and a plausible scenario…more of a LIKELY scenario. With WordPress, many sites can allow anonymous uploads to a blog or a galaxy of user interaction plugins.

Copyright laws were written for the tangible print industry. The intangible web is entirely different and should abide by the DMCA…not some bastardized interpretation of an law designed for a different time and media.

ksummers (profile) says:

Higbee's Latest Victim

Hi, first off — so great to hear that I am not the only one that has been harassed by Higbee & Associates.

Second, I have received the threatening emails, calls and now he sent me a copy of the complaint he intends to file if I don’t settle with him. My company has been crushed by the shutdown (who hasn’t?) and I do not have the money to try and even settle with him.

Any advice on who I should talk to? What are my options? Thanks in advance.

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