Mathew Higbee Cuts And Runs When Finally Challenged On A Questionable Shakedown
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).
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Federal Court: Eight Months Of Utility Pole Camera Surveillance Is A Fourth Amendment Violation
The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.
Casual observations of a person's forays in and out of her home do not usually fall within the Fourth Amendment's protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns.The court says the test for applying the Fourth Amendment to government surveillance efforts comes down to a "reasonable" expectation of privacy. Here, the court finds the defendants' privacy expectations are both subjectively and objectively reasonable.
The Court ALLOWS Moore-Bush and Moore's motion to suppress because they have exhibited an actual, subjective expectation of privacy that society recognizes as objectively reasonable. See Morel, 922 F.3d at 8. First, the Court infers from their choice of neighborhood that they subjectively expected that their and their houseguests' comings and goings over the course of eight months would not be surreptitiously surveilled. See Moore Mot. 7. Second, the Court rules that the Pole Cameras collected information that permitted the Government to peer into Moore-Bush and Moore's private lives and constitutionally protected associations in an objectively unreasonable manner. See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).The government, of course, disagreed. It argued the defendants had no privacy interest in the front of their house, considering it was viewable by anyone passing by it. The court says if that were the extent of the privacy interest asserted by the defendants, the government would be correct.
Yet that is not the narrower privacy interest that Moore-Bush and Moore assert here. Instead, Moore-Bush and Moore claim that they expected privacy in the whole of their movements over the course of eight months from continuous video recording with magnification and logging features in the front of their house. The Court infers from Moore-Bush and Moore's choice of neighborhood and home within it that they did not subjectively expect to be surreptitiously surveilled with meticulous precision each and every time they or a visitor came or went from their home.The government may have prevailed if it weren't for the Carpenter decision, though. The issue isn't a camera pointed at a publicly-viewable area. The problem is what that camera collected over the course of eight months.
In Bucci, the First Circuit reasoned that the "legal principle" that "[a]n individual does not have an expectation of privacy in items or places he exposes to the public" disposed of the matter… If that principle remains an accurate depiction of the law, Moore and Moore-Bush lack an objectively reasonable expectation of privacy in the activities just outside their home, regardless of the camera's unique capabilities.The Court reads Carpenter, however, to cabin -- if not repudiate -- that principle. There, the Supreme Court stated that: "A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'" [...] What's more, the Supreme Court recognized that long-term tracking of a person's movements "provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.'"The government argued the Carpenter decision was "narrow," applying only to cell-site location info. The court disagrees, saying the reasoning behind the Supreme Court's decision -- that people do have some reasonable expectations of privacy in public areas -- is the driving force here, not the method of surveillance.Additionally, long-term surveillance tends to do damage to other rights as well. Tracking a person's movements over weeks and months allows the government to surveil a wealth of activities protected by the First Amendment. In addition, it allows the government to observe dozens of activities it has no business observing.
What's more, people use their homes for all sorts of liaisons. For example, the Government has no business knowing that someone other than the occupant's spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners' hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.The court wraps up its decision by pointing out it is not declaring all surveillance camera use a search under the Fourth Amendment. Instead, it's saying that this set of circumstances makes it a search that interferes with the defendants' reasonable expectation of privacy. The camera setup used here could focus on multiple areas, zoom in close enough to read license plate numbers, and -- perhaps most importantly -- create a searchable set of recordings the government could browse at its leisure and use to reconstruct the lives of the home's occupants over the court of several months. That exceeds what the court -- and the defendants -- find reasonable. Under Carpenter's standard, this type of surveillance can no longer be executed without a warrant.
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