Higbee Tries To Shake Down Forum For Deep Linked Photograph

from the troll-troll-trolling-along dept

Update: Paul Levy has now put up his own blog post about the case, with many more details. It is worth reading.

We’ve written a few times now about copyright troll Higbee and Associates, which has a long track record of sending highly questionable (to outright bullshit) copyright demands to various people on the internet. Many of the demands are absurd. Frequently the images don’t have a registered copyright. Sometimes, it’s not even clear if the “client” holds any copyright at all. The demand letters usually come with misleading and threatening language — often demanding way more than any license would ever bring in.

Public Citizen’s Paul Levy has been tracking Higbee for quite some time now, and representing a few people who have been hit by Higbee letters. And now he (along with Stanford’s law clinic) are taking Higbee to court for declaratory judgment of non-infringement on yet another bogus and exaggerated Higbee threat. The background is quite interesting. Kevin Schlossberg runs a forum website about knives called Blade Forums. Way back in 2007, a user of Blade Forums wrote about the use of wood burls for knife handles — and in the process deeplinked a photograph taken by Quang-Tuan Luong, and posted on Luong’s own website, Terra Galleria.

Schlossberg did not host the image. Schlossberg actually had no idea about the deeplinked image at all until Higbee showed up demanding $2,500. In response, he did change the hotlinked image into just a URL, but Higbee still demanded $2,500. Schlossberg did a bit of internet sleuthing and pointed out that this clearly wasn’t infringement since he wasn’t hosting the image, and pointed to the various Perfect 10 cases. In response, Higbee doubled down, and insisted that the Perfect 10 rulings had been narrowed recently (they have not), that fair use doesn’t matter, and that since Schlossberg had only just registered a DMCA agent, that he was not at all protected by the DMCA’s safe harbors.

At this point, Paul Levy stepped in and wrote one of his standard letters to Higbee detailing how almost everything that Higbee’s staff was claiming was wrong. As per usual, it’s worth reading the entire letter (which is at the end of the filing as the final exhibit), but here’s a snippet:

First, and most important, Luong has no infringement claim because the forum user did not place the photograph on the forum page; he only embedded a link to the location where the photograph is displayed by your client’s own web site. Your client could easily have used technical measures to prevent others from providing deep links that allowed members of the public to view the photograph on your client’s own web site, but he chose not to do so. In the Ninth Circuit, where both your firm and Luong are located, the established law is that “framing” a photograph within a web site, without actually making a copy of the photograph and placing such a copy on the site’s own servers, is not copyright infringement. Perfect 10, Inc. v. Amazoncom, Inc, 508 F.3d 1146, 1161 (9th Cir. 2007).

Second, even if the photograph itself had been placed on the forum instead of being linked from that forum, it was neither Schlossberg nor his company that placed it there; it was a user of the forum. The Blade Forums hosts more than eighteen million separate posts, arranged in nearly one- and-a-half million separate threads. In the last month alone, more than eighteen thousand new threads were created, and more than two hundred thousand new posts were placed by the forum?s users. Schlossberg cannot and does not keep track of them all, and he had no knowledge that the allegedly infringing work was linked from the forum. He did nothing to encourage copyright infringement on the forum and has no financial interest in the allegedly infringing activity. Blade Forums’ terms and conditions expressly forbid users from posting content that even “risks copyright infringement.” Consequently, Luong cannot expect to hold the forum host liable either for direct infringement or for either of the two prongs of secondary liability, vicarious infringement or contributory infringement. VHT, Inc. v. Zillow Group, 918 F.3d 723, 732, 745-747 (9th Cir. 2019). VHT v. Zillow is just the most recent of a line of appellate decisions holding that hosts do not infringe without volitional conduct, BWP Media USA v. T & S Software Assocs. 852 F.3d 436, 440 (5th Cir. 20 1 7), and that the Digital Millennium Copyright Act in 1998, which provided an immunity regime along with the notice and counternotice procedure, does not abro gate requirements under the pre-existing statute for holding hosts liable for copyright infringement.

Levy also points out that, not only has Higbee tried to avoid Levy in the past, his own firm appears to be doing exactly the kind of thing that Higbee (completely incorrectly) insists that Levy is violating the rules by doing:

Finally: in previous cases, in which I have responded to your demand letters to other clients, you have refused to respond because my office is in Washington, DC, and because I belong only to the D.C., and New York bars. You have suggested that I cannot provide assistance to a client who is located in a jurisdiction other than those, and in opposition to a party who is in a jurisdiction other than those; you suggested that this is unauthorized practice of law. You are mistaken. The standard procedure in such situations is for the lawyer to do the necessary work in preparation for litigation, to identify local counsel before the litigation actually begins, and to seek admission pro hac vice once the litigation has begun. Each time I have written to you, I have completed those first two steps. Moreover, considering that your own firm’s web site touts your “national firm . . . that feel[s] local no matter where you are,” you must be aware of Rule 5.5(c)(2) of the ABA’s Model Rules, which allows a lawyer to provide services that are related to a potential proceeding in a jurisdiction where the lawyer “reasonably expects to be . . . authorized” to appear pro hac vice. Most states take that approach. E. g, California Rules of Court Winterrowd v. American General Annuity Insurance 321 F.3d 933 (9th Cir. 2009). That, indeed, appears to be your own law firm’s practice (considering that your associate Mr. Sell, who is admitted to practice only in Colorado, sent a threatening email from your Nevada office, on behalf of a client in California, to my client, located in Kentucky). I hope, therefore, that you will respond and on the merits to my effort to avoid litigation over your threatened copyright claims.

Higbee chose unwisely, and did not respond, leading to Levy (with help from local counsel, Phil Malone from Stanford’s IP law clinic) to file for declaratory judgment on behalf of Schlossberg against Quang-Tuan Luong.

Higbee and similar firms go around signing up copyright holders by basically promising them free money by surfing the web to find “infringing” works, demanding money, and giving some of it over to the copyright holders. Many who sign up for these kinds of services don’t seem to realize that they are putting themselves at risk, as in the case of Luong here, of finding themselves on the receiving end of a declaratory judgment claim (and the possibility of paying the legal fees of the other side). I do wonder if Mathew Higbee makes it clear to his clients that this is a risk they are taking in retaining him to send his troll letters.

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Companies: higbee and associates

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Comments on “Higbee Tries To Shake Down Forum For Deep Linked Photograph”

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31 Comments
Bobvious says:

Re: So please go to Coventry, and whistle Dixie!

"That, indeed, appears to be your own law firm’s practice (considering that your associate Mr. Sell, who is admitted to practice only in Colorado, sent a threatening email from your Nevada office, on behalf of a client in California, to my client, located in Kentucky)."

James Burkhardt (profile) says:

Re: Re:

That some are copyright trolls has nothing to do with the legitimate rightsholders whose work has been stolen by pirates.

And that has nothing to do with this article, which does not call for any changes or repeal of copyright, merely highlights a Troll who is acting dishonestly.

Of course, as you know your statement involves this article follow-on logic to the article itself, the connection to questions about how the specifics of the current copyright laws promote trolling for easy payouts and if that is acceptable. Which discounts your entire position. Your statement, that the side effects of the current copyright law’s enforcement mechanisms have nothing to do with the enforcement mechanisms in the current copyright law, is inane on its face.

Anonymous Coward says:

Re: Re: Re:

Of course, as you know your statement involves this article follow-on logic to the article itself, the connection to questions about how the specifics of the current copyright laws promote trolling for easy payouts and if that is acceptable. Which discounts your entire position. Your statement, that the side effects of the current copyright law’s enforcement mechanisms have nothing to do with the enforcement mechanisms in the current copyright law, is inane on its face.

Part of copyright enforcement is punishing those who abuse copyright enforcement. That abuse still has nothing to do with legitimate cases any more than a case sanctioned under Rule 11 does with another case brought under the same law(s) which did not violate Rule 11.

Gary (profile) says:

Re: Re: Re: Re:

It’s theft of labor and distribution lists.

If I steal your labor, then how does that work? You clean my yard but you don’t get paid?

Pretty sure labor is paid up front. Making 100 copies of something doesn’t mean you get paid less for your labor.

If I steal your distribution list – then you don’t have it any more. It is laughable you are still harping on this.

Anonymous Coward says:

Re: Re: No, they're usually not the creators of the work...

re: "legitimate rightsholders whose work has been stolen by pirates"

‘And copying still isn’t theft.’

And, most often, these supposed "rightsholders" can’t even honestly claim that it’s their work… as the only things they actually wrote by themselves were a cheque and a badly one-sided contract by which the actual creator of the work signed away their rights to the devil in perpetuity, take it or leave it.

Matthew Cline (profile) says:

Re: Re: Re:

The issues was hotlinking the image, displaying an image in the page on one site even though the image is hosted by a different site which has to provide the bandwidth. So linking to the page which on Luong’s site wouldn’t be the same thing. I’d link to it myself, but I’ve been unable to find a page with the image (searching the Terra Galleria doesn’t show anything relevant).

GHB (profile) says:

It's quite rare but inconvenient to see users act like this.

While hotlinking or direct linking is nobody wants because of bandwith sapping, but just banning linking to their work for copyright is absurd. I’ve seen some places like gamefaqs on tutorials/guides made by overzelous users saying such things:

“do not even link to my work without my permission”

Then why upload your work to the site then? Everything has a URL on them, not to mention, the internet is a public place where people can share things by pointing to where it is, which linking is essentially was. Just because people point to your work does not mean it is stolen and copyright infringement. Again, butthurt users trying to enforce restrictions that copyright cannot do, especially fair use.

I would agree if it isn’t copyright-related, like a lawsuit for sapping their bandwith. If you are trying to make that illegal, then try ban ad-blockers, because simply visiting a site also saps bandwith, both the HTML and everything associated with it, not just the image.

madasahatter (profile) says:

trolls

These trolls are relying on the general ignorance of copyright law of both the copyright owner and the general public to shake down the innocent. Having followed many of these stories and having a working knowledge of copyright law there are a couple obvious points. First ‘fair use’ often covers the situation and it valid defense in US law. Second, linking to copyright material is not the same as infringing. Linking will deliver the user to the original page which is what the owner wants, traffic to their page.

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