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Friday, May 10, 2019


M. Higbee

Thank you for the invitation to comment on your post.

The idea that our law firm or its clients share anything in common with Rightshaven is more than just “unflattering;” it is preposterous. So too is the application of the pejorative term “troll.” What is disappointing is that I suspect you know this, as you kindly buried in the third to last line that “the core of the Higbee practice is a legitimate one.”

The operators of Rightshaven were trolls, as they did not create or arguably own any of the rights they sought to enforce. Lumping in our clients, all of whom create or sponsor the works they own, is insulting. Our clients range from independent artists to the largest news agencies in the world. They each play important roles in our democracy— whether it is creating or inspiring art, or capturing insightful news photos. Also, Rightshaven’s tactics and legal claims were shown to be meritless. We and the attorneys to whom we refer some claims have filed hundreds of copyright lawsuits and not a single one has ever been dismissed for lack of merit or involved conduct worthy of sanction. We know we are not perfect - no law firm is - but we work hard to get better every day.

You state that “creative artists deserve to be paid license fees for the posting of their photographs, and especially when the posting is done to enhance a commercial web site.” We concur. However, Public Citizen took the exact opposite position in this case. They represented a for-profit business that profited from an artist’s work in two ways— first by selling subscriptions to the forum page that was displaying the artist’s work, and secondly, by selling ads on that page.

Your argument that copyright holders should lose their copyrights if they do not utilize complex coding, which happens to be easily circumvented, is the equivalent of saying that people who do not hide their valuables under their mattresses cannot press charges against thieves who break in and steal them. Not only does this blame the victims, it ignores the reality that most infringement occurring from linking involves the infringer linking to an image that is not even on a site controlled by the copyright holders themselves.

It is a disservice to readers nationwide to instruct them to rely on the Ninth Circuit’s server test when evaluating liability on cases involving deep or inline linking. First of all, district courts in several circuits have found liability for deep or inline linking and expressly rejected the Ninth Circuit’s server test. Furthermore, while it appears to be a viable defense in the Ninth Circuit for now (although we are not convinced that Perfect 10 or VHT actually hold that all forms of inline linking are an automatic defense to infringement), nobody will be shocked if the Ninth Circuit refines or entirely changes its position in the near future, in which case, those claims that were discovered within the statute of limitations may become enforceable.

As previously stated, we welcome any fair criticism as an opportunity for us to find new ways to improve our ability to better achieve our goal of protecting our clients’ work with the integrity and professionalism they expect. We will also take without complaint the pejorative labels and mischaracterizations that come with fighting for the rights of artists and other creative professionals— but we will admit that it is a bit surprising to be receiving them from Public Citizen.

Jonah E,

The deep-linking host has set up an automated system to profit mightily from infringing, while avoiding liability on the most arcane and niggling of grounds.

Peter Dordal

So what is the deal with copyright infringement claims for deep links? Were these simple href hyperlinks, requiring a click to access the original image? Or were the original images embedded, through the link, in the secondary page?

And has any court ever decided that deep links -- of either form, but particularly the first -- constitute infringement? I'd always thought this was settled in the negative by the Perfect 10 case, but that was a dozen years ago.

Finally, I note that this comment box states "URLs automatically linked". That might be worth revisiting, if linking creates a legal liability!


Thank you for a fascinating, well written, and entertaining post. My son received Higbee shakedown email. It has been a long time since I have had anything but robust contempt for the legal profession. Your post reminded me of the feelings I had when I went to law school years ago. It was then to me a noble profession. Your work speaks to its highest aspirations and accomplishments. Thanks for making my day with a fresh reminder that there are a few good men left in the profession.

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