So, you got a copyright infringement demand letter from Higbee & Associates?

Some context

In 2018 Jake Haskell and I published an article called “Defense Against the Dark Arts of Copyright Trolling” in the Iowa Law Review. The article focused on BitTorrent related litigation that accounted for roughly half of all copyright cases filed in the United States at the time. As we described in the article, in the typical BitTorrent case,

“the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet technology. The plaintiffs bringing these cases target hundreds or thousands of defendants nationwide and seek quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the claim’s merits.”

Given my interest in this topic, I get a lot of emails and phone calls asking about another high volume copyright plaintiff’s lawyer, Higbee & Associates.

I am writing this post so that people have something to go on without waiting for a response from me (which can often take a while, sorry).

Is Higbee & Associates a copyright troll?

Some people call Higbee & Associates (or the clients they represent) copyright trolls. Certainly, they seem more interested in monetizing infringement than simply stopping it. After all, they could use DMCA takedowns in most of these cases and it would be just as effective.

Fair point, but even if they are looking primarily to the rewards of the courthouse rather than the market place, they would no doubt respond that litigation is required to make people understand that photography is not free for the taking. The performing rights organization, ASCAP, files a lot of lawsuits for exactly this reason.

So, in terms of motive, the copyright troll label might not be a great fit, what about methods?

Higbee & Associates are a little different to the copyright trolls Jake and I discussed in Defense Against the Dark Arts of Copyright Trolling. As far as I know, they don’t make a habit of go after obvious non-infringers. Although they don’t seem to recognize many potential fair use arguments either. Also they don’t appear to rely on dodgy technology or bogus experts to make their case — a feature that is endemic of in the BitTorrent litigation.

However, Higbee does seem to send a lot of out letters of demand without much underlying depth. These letters often fail to provide a copyright registration. They often claim to represent a copyright owner who is not the author without evidencing any assignment of rights. You don’t need a registration to make a demand, but you absolutely need one to file a claim in federal court and to get statutory damages. So that seems a bit odd. Not connecting the dots between the person who took the photo and the client they say they represent is also a bit odd.

Moreover, the copyright troll label certainly fits with the sense of being ambushed that many defendants experience. I hear from a lot of these recipients. Receiving a letter from Higbee & Associates feels like an ambush because so many people don’t really understand how copyright works. It also feels like an ambush because the settlement amounts Higbee & Associates demand in a typical letter don’t seem to reflect the value of the underlying work.

Instead of demanding some multiple of the standard license fee for the work in question, Higbee will demand a settlement amount based on what they could get in court under copyright’s rather imprecise statutory damages rules. Which makes their oft noted failure to provide proof of registration even more interesting.

Assuming the work was registered at the relevant time, the prevailing plaintiff in copyright litigation can get statutory damages in the range of $750 to $150,000 per work infringed, regardless of the amount of actual damage. This is a pretty terrifying prospect for most accused infringers. But it gets worse. The real kicker is that if you fight the infringement accusation and lose, you risk just adding to your pain because if they are the prevailing party, the plaintiff has a good chance of getting their attorneys fees as well as statutory damages!

So, what to do?

Step one: figure out whether you have a good story to tell on the merits

You might have a case on the merits. Here are some examples:

  • you paid for a license to use the photo (or you thought you did);
  • you made fair use of the photo by using it as the foundation for commentary, parody or criticism (if you made changes to the photo that reinforce this transformative purpose, the merits of your fair use defense will be even clearer);
  • the party Higbee & Associates represents does not actually own the photo;
  • the photo was not registered with the U.S. Copyright Office before you started using it;
  • you didn’t post the photo, one of your users did it. This gets complicated. You might be covered by the DMCA, but only if you jump through the right hoops including registering an agent with the Copyright Office every three years. If you are not covered by the DMCA, you still might not be responsible for infringing acts by your users, it depends on a number of issues too detailed to summarized here.

Arguments on the merits that won’t help:

  • you didn’t post the photo, one of your employees did — sorry, you are responsible for your employees in a case like this.
  • you didn’t know the photo was copyrighted — this doesn’t help as much as you might think.
  • you thought that photos on the Internet were in the public domain — they aren’t.
  • you were not making a profit on your website — this doesn’t help as much as you might think.

Step two: ask for more information

Request copy of copyright registration, the deposit material that accompanied application, and documents sufficient to show Higbee is authorized by copyright owner to act as agent.

Explain that any settlement you agree to will have to contain proposed settlement a warranty that Higbee is the duly authorized agent of the copyright owner, that their client owns the copyright asserted, and that such copyright is valid. If they won’t do this, why not?

Step two: If you realize now that you might have been infringing the photographer’s copyright

  1. Take down the photo and audit the rest of the images on your website.
  2. If the work was unregistered. Do what your conscience tells you is right. The reality is that it is not worthwhile for them to take this case to court unless they can show actual damages of more than a few hundred dollars.
  3. If the work was registered and they actually represent the copyright owner, make a reasonable settlement offer.
    • What’s a reasonable offer? Based on the cases I have seen, probably, $1000 and go up to $1250 but your individual facts may vary.
  4. If the plaintiff won’t settle, don’t contest every point in the litigation. Instead try to keep everyone’s costs as low as possible; make an “offer of judgment” and hope that you get a reasonable judge who can see that there is no virtue in awarding more than $750 minimum in statutory damages. If you make this strategy clear to them, they should agree to a reasonable offer and move on to their next target.

Do you need a lawyer?

Probably, yes.

You could try to settle (or tell them to take a hike) by yourself, but without a lawyer representing you it’s hard to know how to respond to the arguments that the Higbee are going to throw back.

If you need a referral to a lawyer with experience in these matters, I can try to provide one. I don’t handle these cases myself. You should also know that because I am not your lawyer, any emails you send me are not going to be protected by attorney client privilege.

Good luck.

NEH grant awarded to build legal literacies for text data mining

I am thrilled to share the news that the National Endowment for the Humanities (NEH) has awarded a $165,000 grant to a team of legal experts, librarians, and scholars who will help humanities researchers and staff navigate complex legal questions in cutting-edge digital research. The team is led by UC Berkeley, but involves several other leading universities, including Loyola Law Chicago.

The NEH has agreed to support an Institute for Advanced Topics in the Digital Humanities to help key stakeholders learn to better navigate legal issues in text data mining. Thanks to the NEH’s $165,000 grant,  a national team (identified below) from more than a dozen institutions and organizations will run a summer institute to teach humanities researchers, librarians, and research staff how to confidently navigate the major legal issues that arise in text data mining research. 

Our institute is aptly called Building Legal Literacies for Text Data Mining (Building LLTDM), and will run from June 23-26, 2020 in Berkeley, California

Rachael Samberg of UC Berkeley Library’s Office of Scholarly Communication Services was our fearless leader in the grant proposal, Rachael’s amazing leadership and dedication can’t be overstated! More details on the grant can be found in Rachael Samberg’s post. But to give you some idea of the significance of this grant, here are a few comments from team members:

Building LLTDM team member Matthew Sag, a law professor at Loyola University Chicago School of Law and leading expert on copyright issues in the digital humanities, said he is “excited to have the chance to help the next generation of text data mining researchers open up new horizons in knowledge discovery. We have learned so much in the past ten years working on HathiTrust [a text-minable digital library] and related issues. I’m looking forward to sharing that knowledge and learning from others in the text data mining community.” 

Team member Brandon Butler, a copyright lawyer and library policy expert at the University of Virginia, said, “In my experience there’s a lot of interest in these research methods among graduate students and early-career scholars, a population that may not feel empowered to engage in “risky’ research. I’ve also seen that digital humanities practitioners have a strong commitment to equity, and they are working to build technical literacies outside the walls of elite institutions. Building legal literacies helps ease the burden of uncertainty and smooth the way toward wider, more equitable engagement with these research methods.”

Kyle K. Courtney of Harvard University serves as Copyright Advisor at Harvard Library’s Office for Scholarly Communication, and is also a Building LLTDM team member. Courtney added, “We are seeing more and more questions from scholars of all disciplines around these text data mining issues. The wealth of full-text online materials and new research tools provide scholars the opportunity to analyze large sets of data, but they also bring new challenges having to do with the use and sharing not only of the data but also of the technological tools researchers develop to study them. I am excited to join the Building LLTDM team and help clarify these issues and empower humanities scholars and librarians working in this field.”

Megan Senseney, Head of the Office of Digital Innovation and Stewardship at the University of Arizona Libraries reflected on the opportunities for ongoing library engagement that extends beyond the initial institute. Senseney said that, “Establishing a shared understanding of the legal landscape for TDM is vital to supporting research in the digital humanities and developing a new suite of library services in digital scholarship. I’m honored to work and learn alongside a team of legal experts, librarians, and researchers to create this institute, and I look forward to integrating these materials into instruction and outreach initiatives at our respective universities.”

Team Members

  • Rachael G. Samberg (University of California, Berkeley) (Project Director)
  • Scott Althaus (University of Illinois, Urbana-Champaign)
  • David Bamman (University of California, Berkeley)
  • Sara Benson (University of Illinois, Urbana-Champaign)
  • Brandon Butler (University of Virginia)
  • Beth Cate (Indiana University, Bloomington)
  • Kyle K. Courtney (Harvard University)
  • Maria Gould (California Digital Library)
  • Cody Hennesy (University of Minnesota, Twin Cities)
  • Eleanor Koehl (University of Michigan)
  • Thomas Padilla (University of Nevada, Las Vegas; OCLC Research)
  • Stacy Reardon (University of California, Berkeley)
  • Matthew Sag (Loyola University Chicago)
  • Brianna Schofield (Authors Alliance)
  • Megan Senseney (University of Arizona)
  • Glen Worthey (Stanford University)

The missing theory of transformative use

Today I will be presenting on “The Missing Theory of Transformative Use” at the Intellectual Property Scholars Conference at DePaul University in Chicago. My presentation is basically a distillation of the first three chapters of a book I am writing on the modern law of fair use.

I am dyslexic

I am dyslexic

* Updated for 2019

This post has nothing to do with law, copyright or technology, but it has everything to do with my career as a lawyer and a legal academic. I don’t usually write about personal things on this blog, but this is both hyper-personal and more than personal. I wrote the first version of this post in 2013. Having just published a high-profile blog post on ScotusOA.com with some embarrassing coding errors which I attribute to my dyslexia, now seems like a good time to revisit this topic.

Hiding

If you don’t know that I am dyslexic, you really don’t know anything about me. That would not be your fault, I have spent most of my life trying to hide the fact that I am dyslexic. In fact, I used treat my ability to hide my dyslexia as a measure of how well I had overcome it. But mostly I hid for the same reason people always hide, for fear of exposure. Years of bitter experience at school and in the workforce  had taught me that if you have a learning disability, many people think you are stupid. Some of those who don’t think you are stupid think that you are just lazy or a liar instead.

Even though I knew early in my teaching career that I would have no trouble meeting the tenure standard at my school, I still worried that if my colleagues realized that I was dyslexic they would hold it against me when it came to tenure and promotion. I know other people in the academy who feel the same way, even now in 2019.

You might think that these fears are uncharitable to my colleagues, but I feared their ignorance more than their malice. When I became a tenured full professor I really did (mostly) stop worrying about what people thought. More importantly, I hope that by sharing my experiences I might offer encouragement to others coping with learning disabilities and help change attitudes towards dyslexia.

Reading with dyslexia

Dyslexia is characterized by difficulty with learning to read fluently and with accurate comprehension despite normal intelligence. American Academy of Pediatrics “Joint Statement—Learning Disabilities, Dyslexia, and Vision” 124 Pediatrics 837 (2009)

Dyslexia can mean a lot of different things. The term is used as an umbrella term for a combination of auditory, visual and attentional disorders that manifest as learning disabilities.  I can’t say what it means in general to be dyslexic, I can only say what it means to me.

My type of dyslexia is visual/attentional, but mostly visual. When you look at worlds on a page, chances are that you see words on a page. For most of my life I have had 20/20 vision, so I see the words too – but I don’t really see them. For some reason I just don’t process combinations of letters very well. I see what you see, but what I see is not very stable. The word reversals and word skipping associated with dyslexia seem to be the result of a software failure in the brain, rather than a hardware failure in the eyes. [Although the instability is more of a hardware issue than I had previously understood.]

Some common illustrations on the Internet can give you some idea of what a dyslexic might see, but they are not exactly right either. (These two are from the Irlen website)

Screen Shot 2013-08-12 at 11.39.16 AMScreen Shot 2013-08-12 at 11.38.22 AM

The best way I can explain it is that when I read a word, I can only process two or three letters at a time. A word like “detection” becomes

de – et – te – ct – ti -io – n

But I compensate by sort of flitting over the words so “detection” might actually be more like

det – [bla] [bla] [some kind of tall letter] [bla] – ion

Defection! That sounds like an interesting book, … why is it all about detective stories?

It took me a long time to learn to read. When I was in grade one I would chose my books for quiet reading time on the basis of which ones had the most pictures. I would figure out one or two words per page and then just make up the rest of the story. Even when I supposed to read out loud I found that making things up was pretty good substitute for actually reading.

All through primary school, my reading age lagged my actual age by two or three years. This confused my teachers because I seemed to have “normal intelligence” and my vocabulary was quite strong. I did the usual range of remedial exercises and vision therapy (this mostly involved crossing my eyes and making red and green circles come together). These things helped a bit but I still read poorly, and only when forced. [I recently did some more vision therapy and found it quite helpful. I had not realized how much vision had destabilized since I was a teenager, but it still was not the cure that some hold it out to be.]

In year seven, thanks to the loving tyranny of the diminutive Mrs. Johnson, I realized that I had to start reading. The first book I read was Battlestar Galactica, not a literary masterpiece but easy to follow since I had already seen all the TV episodes more than once. I spent weeks reading Battlestar Galactica at the glacial pace of about 10 pages an hour. After that I very slowly worked my way through my older brother’s sci-fi collection. I loved the escapism, but reading gave me a kind of dull headache and left me exhausted.

Reading in color

In year eight (the first year of high school in Australia) my English teacher told me that my written work showed that I was either stupid or lazy. He then explained that he could see (I am not exactly sure how) that I was not lazy and that he knew from my standardized testing (I was always good at multiple choice tests) that I was not stupid. My new school’s special education teacher referred my on to a psychologist who tested me for “scotopic sensitivity syndrome” also known as Irlen syndrome. The psychologist ran me through a battery of tests and then we spent about two hours trying different colored lenses while doing yet more tests to see which color worked best for me.

Reading with colored lenses was, and remains, a totally different experience. I began to read much more quickly and without headaches. By year 11 I had transformed from a C student in everything but math to an A student. Colored lenses have not cured my dyslexia, but they make it manageable. I still have a shorter than average span of visual focus and words still tend to swim around on the page, but now it is more like

det -ect-ion

vs.

de – et – te – ct – ti -io – n

How do colored lenses help? Do they really help at all?

This is very difficult to explain. Irlen syndrome and the associate Irlen colored lenses are controversial. According to the American Academy of Pediatrics, “Joint Statement—Learning Disabilities, Dyslexia, and Vision”

“Most experts agree that dyslexia is a language based disorder. Scientific evidence does not support the efficacy of eye exercises, behavioral vision therapy, or tinted lenses.”

There are studies showing the effectiveness of colored lenses, but the American Academy of Pediatrics does not think that much of them. I wear non-tinted lenses for social activities that don’t involve reading. When I forget to change back to my tinted lenses all my old symptoms come back. This is as close to proof as you can get that colored lenses work for me and that this is not just a placebo effect. On the other hand, it also seems clear that these lenses don’t work for everyone. Likewise, vision therapy is great for some people, but again, may not work for everyone.

What is it like to be dyslexic?

People who know me now think of me as confident, perhaps even a little brash. I did well at university and as a lawyer, but have only really excelled as an academic. I have published in Nature and many of the top U.S. law reviews (California, Northwestern, Georgetown, Notre Dame, Iowa, Vanderbilt, Ohio State, …) and I receive great teaching evaluations. So, yes, I am fairly self-confident — though not confident enough to leave these achievements unstated.

I have not always been so self-assured. For most of the time I was in school I my greatest intellectual aspiration was to be normal or average. I told myself that I was average and that it was just my dyslexia that held me back. For a long time this anchored my self perception, to the extent that when I started excelling in high school I wondered why 95% of my classmates were below average. I did not know about Bayesian inference then.  When my sister told me that I would never get the grades to get into law school I resented her because even though I was determined to prove her wrong, I also thought deep down that she was right.

Being dyslexic means being misunderstood, dismissed and underestimated. I was almost held back at the end of third grade. I failed the recorder in year 8. I always did poorly in English when it was graded on in class exams and then I was accused of cheating when I handed in high quality short stories and essays that my mother typed for me. [Thanks mum!]

My grade seven teacher asked me once, how do you expect to get a job if you can’t spell? I had just read Isaac Asimov’s Foundation where one of the characters  dictated into her screen and the words appeared in her own handwriting, so I pronounced that by the time I entered the workforce computers would spell for us. It actually only took until I was in year 12. I love words and I love language, but if not for spell check I probably would have become an accountant.

I am still a terrible speller, especially when writing by hand. Spell-check has made my life possible, but even without it, there is something about the muscle memory of typing that works better than the fine-motor skills required for handwriting. My spelling embarrasses me. Even today, I will do almost anything to avoid letting other people see my handwriting. If I have to write a card I usually type it on my computer and then carefully check each word.

When I write on the whiteboard in class I know that my students can see how poorly I spell and that I often write words out of sequence and then add in the missing letters. This used to be excruciating (a word I would never try to write on the whiteboard), but I try to think of it as a demonstration of how amazing I must be to be a successful law professor with this kind of spelling ability.

Proud to be dyslexic

Not all differences are defects. I grew up thinking of dyslexia as a problem to be overcome, a disability that was holding me back. It took me a while to realize that dyslexia is also a gift. I am a bad speller and my attention to detail is inconsistent. On the other hand, I am a great problem solver and and excellent generalizer. I can grasp general patterns based on what seems like insufficient data to most people. I am usually the first person in a movie theatre to get the joke. I also have great listening skills. When I was 26 I moved to the United States and studied for the California bar exam purely by listening to audio tapes from a cramming course. Life with dyslexia is an obstacle course — it is frustrating at times, but there are benefits if you can learn when to avoid and when to overcome. Dyslexia has made me creative and resourceful; it has also pushed me into a career path where these faculties are valued more than penmanship and spelling.

There are lists of famous people with dyslexia on the Internet, but I suspect that most of these are rubbish. For example, the biographies of Winston Churchill of Albert Einstein that I have read provide no basis for the common assertion that they were dyslexic. I am not famous, and I have no plans to become so. But I am reasonably well known and respected in the small world of the American legal academy. If anyone compiles a list of non-famous-but-reasonably-accomplished dyslexics, I would be proud to be on it.

Are dyslexia jokes funny?

Yes. Absolutely.

My personal favorites are the one about the dyslexic devil worshipper who sold his soul to Santa, and the one about the dyslexic agnostic who wonders if there really is a dog.

Coping with dyslexia

I have some suggestions for individuals and parents dealing with dyslexia.

  • See a range of vision, educational and psychological experts. Anyone who tells you they have all the answers is probably a quack or a charlatan.
  • Most of the advice in books like “driven to distraction” about ADHD actually works really well for dyslexia.
  • Don’t just treat dyslexia, think about ways to treat the inevitable frustration that goes along with it.
  • Don’t be afraid to seek reasonable accommodations at school, but also think about which ones will and won’t be available in the ‘real world’.
  • Spell check. I used to carry a pocket dictionary with me at all times but this is much easier now in the digital age.
  • Dictation software. Dictation software can be useful but I find it hard  to use because I don’t always see the mistakes.
  • Audiobooks. I love audiobooks and they may be the pinnacle of Western Civilization.
  • Listening to eBooks. I listen to ebooks using the text to speech function on my Kindle Fire (I don’t know why this feature does not exist on the Kindle iPhone app.)
  • Also “Natural Reader” is great text to speech app for the iPhone. I use it to read a lot of law review articles while exercising or walking the dog.

My final advice is that you should accept that you need to better than other people to do as well. That sounds hard, but it is a challenge that is shared by many groups who, for one reason or another, have something to overcome.

That is pretty much everything I have to say on this topic. In the years since I wrote this post I have been told by a surprising number of people that it has offered them encouragement or helped them to understand their child. That brings me joy and satisfaction. I know that some of my students will read this and know that they are not alone in their struggles, whatever they may be.

* originally published Aug 12, 2013 6:59 pm.

Extended Readings on Copyright

After teaching copyright law based on my own materials for several years now I have decided to release my reading materials under a creative commons license. You can find these materials on my website at https://matthewsag.com/eroc/.

These Extended Readings on Copyright can be used as a textbook or as individual modules to supplement a textbook. Unlike a regular textbook, I don’t pretend that every important issue in copyright is addressed in these materials. The modules are arranged in the order that I teach them, but most can be used in any sequence. You should consider the current offering as a Beta version. I will post additional modules and revise the existing ones on a continual basis, major revisions will be noted on this website.

Chicago Marathon 2019

I am running the 2019 Chicago Marathon in honor of my sister Rebecca who died of pancreatic cancer late last year. Rebecca’s death is incredibly sad, but her life is worth celebrating. Something else worth celebrating is that cancer deaths have declined 20 percent in the US since the early 1990s.

We have a long way to go but we are actually making progress.

The American Cancer Society supports research, treatment, prevention, and education efforts. Please help me to help them by donating to the ACS and together, we can finish the fight against cancer!

You can support my running of the 2019 Chicago Marathon for the American Cancer Society at this address: (http://main.acsevents.org/goto/MattSag) or by mail.