Mathew Higbee Cuts And Runs When Finally Challenged On A Questionable Shakedown

from the do-his-clients-recognize-their-own-liability? dept

Last month, we wrote about a declaratory judgment lawsuit that had been filed against a client of Mathew Higbee. As we've discussed at length, Higbee runs "Higbee & Associates" which is one of the more active copyright trolls around these days, frequently sending threatening shakedown-style letters to people, and then having various "paralegals" demand insane sums of money. In some cases, it does appear that Higbee turns up actual cases of infringement (though, even in those cases, the amount he demands seems disconnected from anything regarding a reasonable fee). But, in way too many cases, the claims are highly questionable. The lawsuit mentioned last month represented just one of those cases -- involving a threat against a forum because one of its users had deeplinked a photographer's own uploaded image into the forum. There were many reasons why the threat was bogus, but as per the Higbee operation's MO, they kept demanding payment and dismissing any arguments for why the use was not infringing (and, relatedly, why it was against the incorrect target).

Paul Levy and Public Citizen filed for declaratory judgment that the use was non-infringing, and in the process, pondered publicly whether or not Higbee had warned his various clients that they might end up in court in response to Higbee's aggressive tactics. Apparently, in the case of photographer Quang-Tuan Luong, the photographer was not particularly happy about ending up in court, and Higbee and his client quickly agreed to cut and run, despite Higbee's insistence that he was ready to take this matter to court.

I gave Higbee a chance to withdraw his client’s claims; however, Higbee had previously told me that my arguments about non-liability for infringement in an identical case were “delusional,” so we decided to give Higbee a chance to explain to a judge in what way these defenses were delusional, that is, in response to an action for a declaratory judgment.

I confess that, in filing that lawsuit, I wondered whether Higbee had ever warned Luong that he would not necessarily get to make the final decision whether his demand would end up in litigation, in that the very aggressiveness of Higbee’s demand letters, coupled with persistent nagging from paralegals to offer a settlement or face immediate litigation, sets up his clients to be sued for a declaratory judgment of non-infringement. That speculation proved prescient, because Higbee’s immediate response to the lawsuit was to offer to have his client covenant not to sue Schlossberg for infringement. Higbee also told me that he had offered to defend Luong against the declaratory judgment action for free.  It appears, however, that even such a generous offer was not enough to hold onto Luong as a copyright infringement claimant in this case. A settlement agreement has been signed; because there is no longer a case or controversy, the lawsuit has now been dismissed. 

Levy makes it clear, however, that he's actively looking for other such cases to challenge in court in response to Higbee's overaggressive demands:

Since that blog post, I have got wind of several other situations in which Higbee has claimed large amounts of damages against forum hosts.  We are considering which ones would make the best test cases.  

My last blog post about Higbee mentioned another case in which he had made a demand against the host of a forum about United States elections, where a user had posted a deep link to a photograph by another of Higbee’s stable of clients, Michael Grecco. Higbee has sued on Grecco’s behalf on a number of occasions, and Higbee told me that, unlike Luong, Grecco was a true believer who was looking for opportunities to pursue Higbee’s copyright theories in litigation.  Higbee said that he was going to be talking to Grecco to confirm that he wanted to litigate against the election forum. I could not help suspecting at the time that Higbee was blowing smoke to show what a tough guy he is.  That was a month ago, and yet so far as I can tell, Higbee has not yet got around to talking to his client about the subject. I have to wonder just who it is that wants to litigate Higbee’s legal theories.

Indeed, I have asked Higbee whether he warns his clients generally that they can be sued for a declaratory judgment of non-infringement even if they have never given Higbee authority to go to court on their behalf. He told me that he is too busy to address my questions.

He also notes that another such declaratory judgment filing has been made against the very same Michael Grecco:

That case involves another demand letter from Higbee, this time to an indigent young man named Lee Golden who lives in Brooklyn with his parents and blogs about action movies.  Because Golden included a Grecco photograph of Xena the Warrior Princess, Higbee sent his typical aggressive  demand letter, setting $25,000 as the required payment to avoid being sued. Golden responded with a plaintive email, apologizing profusely, saying that he had no idea about copyright issues, that he had taken down the photo...own, returning to its demand for $25,000 and threatening to seek $30,000 or even $150,000 if the case had to be litigated. Higbee even sent a draft infringement complaint, threatening to make Golden defend himself in the Central District of California even though many of Higbee’s actual lawsuits are filed in the jurisdiction where the alleged infringer lives, perhaps because Higbee wants to avoid having to litigate personal jurisdiction.

But Golden’s counsel likely did not know this, so Strupinsky and his partner Joshua Lurie have filed suit on Golden's behalf in the Eastern District of New York, seeking a declaratory judgment of non-infringement. We will see how anxious Michael Grecco is to litigate this case.

We see this again and again with copyright trolling operations. They often promise potential clients that this is a "no risk" way to make money. Just sign up and they'll scour the internet and you'll just sit back and receive the payments. Indeed, Higbee's site suggests just that:

Let a national copyright law firm take care of all of your copyright enforcement needs— from reverse image search to collecting payment. You pay nothing up front. We only get paid when you get paid. Best of all, by using us for reverse image search you will be eliminating the middle man and nearly doubling your profit.

His site also claims that he'll go to court for you "assuming you want us to" -- leaving out the risk of a declaratory judgment filing (and associated embarrassment for trying to shake down non-profits and personal websites of people with no money).

Filed Under: copyright, copyright trolling, declaratory judgment, deep linking, embedding, mathew higbee, michael grecco, paul levy, quang-tuan luong
Companies: higbee and associates


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  • icon
    That One Guy (profile), 10 Jun 2019 @ 2:39pm

    Run away little cowardly thugs, run away

    Ah the classic copyright extortionist MO, quick to make threats and talk big about how if it goes to court it will totally go bad for the defendant, but when it comes to actually going to court where their claims would be tested all of a sudden they forgot to turn the oven off, they need to check that they closed the fridge, they've really got to get to a doctor's appointment that they almost forgot...

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 10 Jun 2019 @ 2:47pm

    I sure am glad Levy's out there fighting the good fight.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 10 Jun 2019 @ 4:07pm

    And to think, some assholes want a system like this in place for defamation!

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 10 Jun 2019 @ 4:32pm

      Re:

      People should have the means to protect their reputation.

      Middle ground would be eliminating the single-publication rule, or allowing ex-parte actions against anonymous posters who cannot be traced.

      Section 230, used properly, is a good law, but it has rough edges which need to be smoothed out. Distributor liability has the element of 230 that foreknowledge is required or the intermediary is immune.

      Why would people want search engines weaponized? Anonymous defamation is actually a harassment crime in many states.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 10 Jun 2019 @ 4:40pm

        People should have the means to protect their reputation.

        Yes, they should. Point out where I said otherwise.

        Distributor liability has the element of 230 that foreknowledge is required or the intermediary is immune.

        And that’s because distributors generally know exactly what speech is going into the publications they distribute. Twitter does not know what I will tweet any more than it knows what will come from the keyboards of Donald Trump, Chris Evans, or @CanYouPetTheDog.

        reply to this | link to this | view in chronology ]

        • icon
          Gary (profile), 10 Jun 2019 @ 5:20pm

          Re:

          And that’s because distributors generally know exactly what speech is going into the publications they distribute.

          Stephen, the AC wants all posts to be pre-filtered before posting so that they have proper foreknowledge. One at a time. By not less than three human lawyers, per post.

          reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 10 Jun 2019 @ 9:53pm

          Re:

          And that’s because distributors generally know exactly what speech is going into the publications they distribute.

          You mean like a newsstand or a bookstore?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 10 Jun 2019 @ 11:34pm

            Re: Re:

            You mean like a newsstand or a bookstore?

            And when a valid court order, signed by a judge and argued in a court of law, is presented to a newsstand and bookstore, I am sure that they will gladly take down whatever illegal content they may have on their store shelves.

            reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 10 Jun 2019 @ 9:54pm

          Re:

          People should have the means to protect their reputation.
          Yes, they should. Point out where I said otherwise.

          If you see no extra harm in a search engine archiving defamation from any corner of the internet, and refusing to remove it, while retaining immunity, you've pretty much supported a status quo which makes it impossible for people to protect their reputations if attacked in that manner.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 10 Jun 2019 @ 11:41pm

            Re: Re:

            you've pretty much supported a status quo which makes it impossible for people to protect their reputations if attacked in that manner.

            Please tell us when this has actually happened? You have been here for months and months and months, talking about the same, very contrived scenario, that by this point, you should have some solid evidence to present to the rest of us that backs up your assertations.

            Please present this evidence, or admit that you are just full of BS!

            reply to this | link to this | view in chronology ]

            • icon
              Wendy Cockcroft (profile), 12 Jun 2019 @ 5:41am

              Re: Re: Re:

              If you see no extra harm in a search engine archiving defamation from any corner of the internet, and refusing to remove it, while retaining immunity, you've pretty much supported a status quo which makes it impossible for people to protect their reputations if attacked in that manner.

              That ROR post about me is still up, along with my rebuttal. I protected my reputation by posting the rebuttal and by continuing to behave as I always do: I'm feisty, curious, and generally friendly. That's my reputation. Would anyone care to disagree in the light of all the negative crap trolls sometimes post about me?

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Jun 2019 @ 2:34pm

            Re: Re:

            Stopping one or even a few search engines from reporting findings on something doesn't remove the content on the web. You can still see it, go to it, link to it, etc. Sure the popular search engines don't show it but it still exists. This is why you should go after the one publishing/posting the info, not the messenger.

            reply to this | link to this | view in chronology ]

      • icon
        Wendy Cockcroft (profile), 12 Jun 2019 @ 5:37am

        Re: Re:

        People should have the means to protect their reputation.

        Don't behave badly on or offline. Then, if someone says something horrible about you, when people check you out they will see it's not true. This happened to me.

        Middle ground would be eliminating the single-publication rule, or allowing ex-parte actions against anonymous posters who cannot be traced.

        Do you really want a reputation for being thin-skinned?

        Section 230, used properly, is a good law, but it has rough edges which need to be smoothed out. Distributor liability has the element of 230 that foreknowledge is required or the intermediary is immune.

        So? It's the poster who's to blame, and even the most egregiously defamatory speech isn't considered defamatory until it causes harm in real life. The only harm I suffered when it happened to me is being called into the office to explain myself. I was promoted some time after that. what harm? Meanwhile, the troll has zero credibility.

        Why would people want search engines weaponized?

        How can a search engine be weaponised? It simply returns search results.

        Anonymous defamation is actually a harassment crime in many states.

        Which ones?

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Jun 2019 @ 4:39pm

      Re:

      Now look what you did. Don't bait the trolls, bad enough when they show up on their own, no need to taunt them before that.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2019 @ 4:30pm

    Someone once threatened me with a SLAPP suit over a negative online review, having a lawyer send the letter. When I pointed out to the lawyer that I had various claims, including for declaratory relief, the lawyer said he no longer represented the client and the client wound up in court having to defend a lawsuit brought by their own willingness to use a lawyer as a pitbull.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2019 @ 11:16pm

      Re:

      So it sounds like you came out of that experience unscathed despite leaving a negative review - you know, the thing you keep giving Ripoff Report shit for.

      Why is Section 230 a problem, again? Because lawyers get away scot free? Welcome to the world of litigation...

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 11 Jun 2019 @ 3:58am

      Re: threatened SLAPP suits

      threatened me with a SLAPP suit over a negative online review, having a lawyer send the letter

      This can have unintended consequences. I had a contractor threaten clients this way. They turned around and sued the contractor for a refund. The contract contained a fee-shifting provision.

      And would you believe that word of the suit has gotten out?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2019 @ 4:33pm

    In one copyright action, the defendant actually countersued in an attempt to get fees, claiming the plaintiff's copyrights were not valid because, well, the work "sucked" or something to that effect. Everyone got scared of the judge and the case quickly settled.

    Not all trolls work for the plaintiffs.

    reply to this | link to this | view in chronology ]

    • identicon
      bob, 10 Jun 2019 @ 4:43pm

      Re:

      Any references to your stories here and above?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 10 Jun 2019 @ 4:49pm

        Re: Re:

        Depends, do you consider 'their ass' a valid reference source?

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 10 Jun 2019 @ 4:51pm

          It works for InfoWars.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Jun 2019 @ 5:47pm

          Re: Re: Re:

          It's funny because you'd think that a judge who takes the defendant's word at "something does not deserve copyright because of poor quality" would be pretty much publicly blacklisted by all IP enforcement.

          You'd think that there'd be a case to cite somewhere to substantiate Herrick's point, but nah. It's Herrick, after all.

          The closest you have is a German judge ruling that Malibu Media's porn didn't deserve copyright protection... in Germany, so goodness knows how that's relevant to Herrick aside from sympathy points.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 10 Jun 2019 @ 9:52pm

            Re: Re: Re: Re:

            The lawyers didn't take any hit to their reputation for arguing it.

            People don't care beyond a few dozen who seem to all post here.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 10 Jun 2019 @ 11:13pm

              Re: Re: Re: Re: Re:

              If people don't care, then you should have no problem citing the actual case.

              None of this "you only want names to make fun of people" table scraps nonsense. You literally said nobody cared!

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2019 @ 5:43pm

      Re:

      Shiva Ayyadurai still didn't invent email, Herrick.

      reply to this | link to this | view in chronology ]

    • icon
      Rico R. (profile), 10 Jun 2019 @ 7:17pm

      Re:

      Are you kidding me? If a work truly sucks, then it has more copyright protection... I mean, look at all the 100% valid DMCA takedowns against negative reviews of films and music! /s

      reply to this | link to this | view in chronology ]

  • identicon
    AlexisR200, 11 Jun 2019 @ 1:12am

    "Best of all, by using us for reverse image search you will be eliminating the middle man and nearly doubling your profit."

    Poor Mathew Higbee... Did he not learn in law school that double the profit of zero is still zero?

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 11 Jun 2019 @ 12:03pm

    Don't people ever file grievances with the bar assoiciation against the lawyers? I generally read through the texas bar journal every month and there are lots of disciplinary actions for what I would think are relatively minor issues compared with what people like higbee are doing. (Not to say that the issues are minor - only by comparison.)

    reply to this | link to this | view in chronology ]

  • icon
    Tim J (profile), 12 Jun 2019 @ 10:29pm

    Higbee & Associates

    Why has no class action law suit ever been filed with a steep enough penalty to shut him dowm?

    reply to this | link to this | view in chronology ]


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