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).