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Consumer Warning-This is a Must Read!

 

Comments

M. Higbee

Hi Paul. Thank you for inviting me to comment on your article. There are more inaccuracies and mischaracterizations than I care to address. However, I will quickly point out a few.

My client’s decision to no longer pursue the claim had absolutely nothing to do with the fact that your client decided to retain counsel, but simply the discovery that your client was a non-government entity (NGO), which, along with other economic related factors, put it outside of my client’s enforcement parameters. The inference that we do not like working with attorneys is not true. While we are happy to work with unrepresented parties, our preference is to deal with attorneys who understand the nature of the claims. A majority of the claims we resolve involve represented parties.

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.

Anyone who believes that the existence of a screening stage prior to the litigation stage is proof that no screening is done at the pre-litigation stage needs to gain more insight on how law firms and businesses that depend on efficiency operate. Every law firm will take what they learned during the pre-litigation stage and evaluate it before making a recommendation about litigation to their client. The cases we litigate or that we refer to other law firms to litigate are all screened multiple times prior to pre-litigation and litigation efforts.

We never pursue a claim that we do not believe has merit. We also never state that a claim will definitely involve statutory damages, but instead, we caution people as to what may be possible. The initial letter is sent at a time when we know very few facts about the extent of the infringement or how many other images may have been infringed. It is not uncommon for us to find additional infringements even after we begin litigation that may give rise to statutory damages. Also, during the pre-litigation stage, we often do not know the viability or availability of additional claims that could give rise to statutory damages and attorneys fees, for instance, violations of 17 U.S.C. 1202, which involves alteration or removal of copyright management information, and does not require registration for an award of statutory damages. Some of our clients have thousands of registered images that they have not yet matched to their image library. So, Ms. Alvarado’s statement about the image not being registered was accurate for purposes of our reaching a settlement, as we would negotiate a resolution as if the image was not registered; however, there is a chance that we would later need to revise our position on whether or not the image was registered. Our goal is not to be heavy-handed, but rather to convey the seriousness of the matter and caution the business about the potential risks. We also suggest they consider consulting an attorney.

Copyright infringement is a big problem that threatens the livelihood of talented artists and the viability of important publishers of news and commentary. Unlike other areas of property theft or trespass, which are primarily policed by government entities, the protection of intellectual property falls almost exclusively on the copyright holder. Policing anything is difficult. Policing large scale infringement is beyond difficult. However, our tremendous success rate in and out of court is a testament to our ability to do things right. That being said, I know we are not perfect and there is always room for improvement.

So, let me conclude by saying the following: my law firm has been blessed with the opportunity to represent incredible artists and professionals from all over the world, not to mention two of the world’s three largest news agencies. We are proud to represent them and to help them solve a very challenging and serious problem. I welcome any criticism as an opportunity to find ways to improve our ability to better achieve our goal of protecting our client’s work with the integrity and professionalism they expect. To the extent that your article provides an opportunity to do that, I thank you. I wish you the best of luck in the future.

Mike Spaulding

Paul:

Thank you for this article. It explains my experience to a “T.” Received a Higbee demand letter related to an article I received from a friend who does a news podcast. The article gave a run down of that particular night’s show with some brief commentary. I reposted the article. Unbeknownst to me, the article contained a picture that Higbee says infringed upon their client Agence France-Presse. I removed the picture but Higbee’s clerks are still emailing me wanting payment. Now I understand why.

Thank you!

Mike

Matthew Chan

This recent expose about Higbee & Associates and their demand letter scheme written and researched by Mr. Levy was an unexpected surprise. It is an amazing piece of work filled with analysis, research, cross-references, links to letters/emails, and so much more. The time, effort, and work Mr. Levy put into this project are substantial. I have no other word to describe this expose except that it’s “packed”.

I have followed the Higbee Demand Letter Scheme for years through the hosting of a dedicated Higbee Associates Letter & Lawsuits forum on the ExtortionLetterInfo website. I have seen no singular article that has as much analysis packed into this article as this one. Nothing else written thus far comes close to touching Mr. Levy’s work. I say this being very familiar with the Higbee operation and their demand letter scheme. Nevertheless, I still need more time to go through every link Mr. Levy provided and put it all into context in my mind.

Unless Mr. Levy decides to do a follow-up, his article will be the definitive “go to” article for anyone receiving a Higbee Demand Letter. It is a MUST READ! Through Mr. Levy’s and Public Citizen’s ongoing advocacy for consumers, Mr. Levy has called out the Higbee operation in a very big, unique, and public way.

EXAMPLE OF NEW YORK SUBPOENA

COMPOSITE EXAMPLE OF NEW YORK SUBPOENA

PURSUANT TO THE UNIFORM INTERSTATE DEPOSITIONS

DISCOVERY ACT 

Stat of New York Civil Practice Law and Rules § 3119

PLEASE NOTE:

COUNTY CLERKS IN NEW YORK DO NOT PROVIDE SUBPOENA FORMS.

THIS EXAMPLE IS NOT AN OFFICIAL FORM, AND IS PRESENTED FOR 

ILLUSTRATIVE PURPOSES ONLY.

****************************************

SUPREME COURT OF STATE OF NEW YORK 

COUNTY OF _______________________________                                                                 COUNTY CLERK LOG NO.

_______________________________________________________________x                              SUBPOENA 

                                                                                                                                                                                                                                                                                          

                                                                            Plaintiff/Petitioner,                              

              v.                                                                                                                                                                                   

                                                                                                                                             Originating State:

                                                                          Defendant/Respondent.                        Originating County:

_______________________________________________________________x                              Originating Court:

                                                                                                                                             Originating Case No.

SUBPOENA/SUBPOENA DUCES TECUM

Pursuant to the Uniform Interstate Depositions and Discovery Act

(Personal Attendance Required/Not Required)

TO: [NAME] [ADDRESS]

 

WE COMMAND YOU to appear at the time, date and place set forth below to testify at a deposition to be taken in this civil action and

each of you appear and attend before __________________________________________________

at _________________________________________________, on the _________ day of ______________, 20___, at________ o’clock, in the ___________________ noon, and at any recessed or adjourned date to give testimony in this action on the part of______________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________________________________________________; 

and/or that you bring with you, and produce at the time and place aforesaid, the following documents, electronically stored information, or objects, and permit their inspection, copying, testing or sampling of the material:

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________;

and/or that you permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date and location set forth below, so that we may inspect, measure, survey,, photograph, test, or sample the property or any designated object or operation on it

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

FAILURE TO COMPLY with this SUBPOENA is punishable as a contempt of Court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed one hundred fifty dollars and all damages sustained by reason of your failure to comply.

 

Additional Information:

[if any is contained in the Out-of-State subpoena]

 

Contact Information of Counsel for 

all parties (or contact information for parties pro se)

in the action:

 

Name

Address

Telephone Number Parties) Represented: 

(Repeat as required.)

Dated:_______________   ,______________(state)

            ________________________________

Court Clerk:__________________________________

                                                                                                                                                                                                                                                           

Civil Practice Law and Rules § 314

Service without the state not giving personal jurisdiction in certain actions.

Service without the state not giving personal jurisdiction in certain actions. Service may be made without the state by any person authorized  by  section 313 in the same manner as service is made within the state:

    1. in a matrimonial action; or

    2. where a judgment is demanded  that  the  person  to  be  served  be excluded  from  a vested or contingent interest in or lien upon specific real or personal property within the state; or that such an interest or lien  in  favor of either party be enforced, regulated, defined or limited; or otherwise affecting the title to such property, including an action of interpleader or defensive interpleader; or

    3. where a levy upon property of the person to be served has been made within the state pursuant to an order of attachment or a chattel of such person has been seized in an action to recover a chattel.

For information on Serving Divorce Papers visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

Civil Practice Law and Rules § 313

Service without the state giving personal jurisdiction

Service  without  the state giving personal jurisdiction.   A person domiciled in the state or subject  to  the  jurisdiction  of  the courts  of  the  state  under  section  301  or  302, or his executor or administrator, may be served with the summons without the state, in  the same  manner  as  service  is  made  within  the  state,  by  any person authorized to make service within the state who is  a  resident  of  the state  or  by  any  person authorized to make service by the laws of the state, territory, possession or country in which service is made  or  by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.

For information on Serving Divorce Papers visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

Civil Practice Law and Rules § 308

Personal Service upon a natural person

Personal service upon a natural person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be served;  or

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other;  proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later;  service shall be complete ten days after such filing;  proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law ;  or

3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318 , except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law ;

4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other;  proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later;  service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law ;

5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

For information on Serving Legal Papers visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

Domestic Relation Law 232

Notice of nature of matrimonial action: Proof of Service 

a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: “Action to annul a marriage”, “Action to declare the nullity of a void marriage”, “Action for a divorce”, or “Action for a separation”, as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant’s default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice

b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto.

For information on Serving Divorce Papers visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

NEW YORK STATE SUBPOENA WITNESS FEES

By: Undisputed Legal/Subpoena Service Department

NY CPLR § 8001 Persons subpoenaed; examination before trial; transcripts of records.  (a)  Persons  subpoenaed.  Any  person  whose  attendance   is compelled by a subpoena, whether or not actual testimony is taken, shall receive  for  each  day’s attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile to the place  of attendance  from the place where he or she was served, and return. There shall be no mileage fee for travel wholly within a city.    

(b)Persons subpoenaed upon an examination before trial. If a  witness who  is  not  a party, or agent or employee of a party, is subpoenaed to give testimony,  or  produce  books,  papers  and  other  things  at  an examination  before  trial, he shall receive an additional three dollars for each day’s attendance.    

(c)Transcripts of records. Wherever the preparation of  a  transcript of  records  is  required in order to comply with a subpoena, the person subpoenaed shall receive an additional fee of ten cents per  folio upon demand.

For information on Subpoena Service visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

UNDERSTANDING DOMESTIC VIOLENCE

By: Undisputed Legal Inc./Family Court Process Service Department

Why Do Victims Feel Trapped? Why Don’t They Just Leave? 

Many people who are abused by their intimate partners don’t want the relationship to end. They just want the violence and abuse to stop. 

Even under the best of circumstances, it is not easy to end a relationship with an intimate partner. Love, family, shared memories, and commitment are bonds that are hard to break. Cultural or religious beliefs may be barriers to ending a marriage. Immigration status may be another obstacle. While ending a relationship is hard for anyone, women who are abused face the added risks of physical, emotional and psychological harm. There are risks that come with every decision a victim of abuse makes. 

ASSIGNMENT AND COOPERATION WITH CHILD SUPPORT

By:Undisputed Legal Inc./Family Court Process Service Department

If you are an applicant/recipient of Temporary Assistance for the child, or Medicaid for yourself and the child, or your child is in Title IV-E Foster Care, you are required to assign to the social services district rights you have to support on your own behalf and any rights to support on behalf of any family member for whom you are applying for, or receiving assistance. For Medicaid applicants/recipients, this assignment is limited to medical support only. When applying for, or receiving Temporary Assistance, your assignment of support rights is limited to support that accrues during the period that you or the family member receives assistance. You are required to assign these support rights and, unless you claim good cause or domestic violence for not doing so, cooperate with the Child Support Enforcement Unit to: 

WHAT IS A TRUST?

By: Undisputed Legal Inc./Court Service Department

A trust is a legal instrument used to hold and manage real property and tangible or intangible personal property, for example, antiques (tangible personal property) or the right to royalty payments (intangible personal property). Putting property in trust transfers it from your personal ownership to the ownership of a legal entity called a “trust” which holds the property for your benefit or the benefit of anyone else you might name. Upon transfer, the law looks at these assets as if they were owned by the trust. Many trusts are set up in wills, and take effect upon death. Others can be established while you are still alive. 

For information on Serving legal Papers visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com