Sometimes there is a wrong way to do the right thing. Robbing a gas station to feed your family, driving dangerously to get a sick loved one to the hospital (fuck ambulance fees amiright?)
And then there is Higbee & Associates.
Let me first start off by saying that infringing is wrong, when people create media for us to use, they should be compensated for their work, if not, they can't afford to create that media and you lose that resource. A fire needs to be fed to be kept alight.
And lets be clear, if you use someone's work without paying for it or getting permission, that's an infringement. It's that simple, and no, odds aren't in your favor that it's Fair Use. An empirical study of nearly 600 court opinions regarding Fair Use between 1978 and 2019 found that judges weighed in favor of Fair Use only 22% of the time.
Okay, infringing is wrong, that's established, however, that doesn't suddenly make the actions of Higbee & Associates correct or okay.
If you don't know, Higbee & Associates is a copyright law firm based in California, they send out letters in large quantities accusing people of infringement and demanding that the people they send letters to pay an outlandish amount of money. There is a lot of talk and speculation online about them but here's our take.
For some reference, lets say that an associate of ours received one of those letters, they brought it to us to look into, and we did a little digging into the practices of Higbee & Associates.
From publicly available information, we found that Higbee has been sending out these letters for years, a decade or so to be exact. A few key things we noticed is that they send out a lot of these letters and a lot, a majority, of people do not pay the fees that are being demanded by Higbee. What this tells us is that it's a volume game.
It's a common practice for debt collection firms to work on a high amount of cases with an expectation of about 15% of them to be resolved. If they re-apply that business model to Higbee and consider something along the lines of a 15% return, to pay the firms bills (attorney pay, support staff pay, the cost of owning and/or renting an office, along with the money that should be sent to their clients (industry average is about 33%-40%) etc.) that means that they have to be sending out thousands of letters a month, for a decade.
That means that they've sent out at least 100,000 to 200,000 letters for these cases over the last ten years, we've estimated about 150,000 of these letters total.
This information alone tells us a number of things. Firstly, they don't actually care about copyright, they don't care about their clients (can't really care if you only expect to win 15% of the time) they only care about making money. And they are targeting people with the least knowledge of copyright.
Secondly, the main retort to just not outright paying them is generally to threaten you with being sent to their “litigation team” or “litigation department” which, from looking at the experiences of many others, they'd just send this email and are never heard from again.
This sort of tracks, if you look at PACER, or Court Listener (which gets their documents from PACER (for those of you who don't know PACER is an attorney tool that has every federal court document (all copyright claims are federal) available from November 2004 to present, and some other prior to then)) And from 2014 to present, Higbee and Associates only has 140 dockets. But it's even less than that for Copyright. Higbee has three departments, Copyright, RecordGone, and a debt collection defense department. Of those 140, some of those dockets are from the debt collection defense department and some from RecordGone, so it's even less than 170 cases (source below) for copyright that they've actually taken to court. And even more, not all of the dockets involve wins for Higbee & Associates.
So what's the point?
Win or lose, Higbee took 170 cases to court (I know, for reasons stated above, it's less than that, but for the sake of simplicity, we'll use 170) and we estimated that in the same time frame they've sent out roughly 150,000 of these letters. That means they've only gone to court on 0.1133% of their cases, which is just over a tenth of one percent of the time. Which, for all intents and purposes, means that the threat of litigation is completely hollow and payment is basically optional.
Why don't they take these matters to court?
One of the signature M.O.'s of Higbee & Associates is to claim their client is the copyright holder but give this whole song and dance about why they can't give you a copy of the registration. Now, to be fair, in our research, Higbee & Associates is, in fact, a real law firm that does, in fact, represent the owners of the photographs. Why, then, don't they provide the registration?
Simply, the images just aren't registered with the copyright office, and in our research we found that a majority of the letters sent out didn't have a registration provided, some did, which indicates to us that unless they send you the registration in the initial letter, then it wasn't timely registered or registered at all. If you didn't get the registration in the initial letter, odds are, it's not registered.
Which means that even if they took the matter to court, they'd only get actual damages which are limited and are, quite frankly, not worth the cost of litigation to pursue. Which is why they have to try and threaten and trick you into paying for it without it ever going to court.
To go to court they'd have to register the image first, pay filing fees, attorney's fees, etc. by the end of the day, the amount for the court costs and attorney's fees will likely exceed the amount to be won. They don't want this.
They are hoping they can badger and threaten you and convince you to pay without you knowing or realizing any of this. They are trying to trick you into signing a release so you are contractually obligated to pay them.
Another thing we discovered is that there are two, maybe three attorney's actually overseeing all of these cases. But the main mode of contact comes from the support staff, legal assistants and paralegals, which makes sense when you consider the volume of cases they're working on at any given time.
But looking around at the emails and responses people have received, it shows that they're all similarly worded. Which indicates to us that they're using pre-written responses. Which means that, in reality, it's the non-attorneys really handling the cases and negotiating them. Which is already treading on the line of legality, but it isn't all that uncommon either, if done right, however, that means one other thing. The only way they can do this is if it's within a pre-approved spectrum. That means there is a minimum amount of money they can take and a maximum amount of money they can take. And with our associate, and a few others we spoke to, and some others we found online, the lowest they'll usually accept is the amount initially provided by PicRights (Not mentioned here really, but it seems everyone gets a letter from PicRights first for a lower amount and if you ignore them, then it is sent to Higbee at a higher rate, usually about 2 to 2.5 times the amount initially asked for. Which creates this spectrum we spoke about). So, they are artificially inflating the amount the person supposedly owes to give these non-attorney's room to negotiate and settle the cases without attorney input and without violating law. But is still shady.
So lets get down to brass tax, what do you do if Higbee contacts you?
We can't tell you, we can't give you legal advice.
We can only tell you what happened to prompt us to investigate this firm.
Last year, our associate received a letter from PicRights about an image that was on their blog demanding they pay 400 and some dollars for the use of the image. Our associate thought it was a scam and ignored it. A few months later they find that they received an email from Higbee & Associates demanding about $1,200. They contacted them and spoke to a woman and asked for registration, they wouldn't provide it, offered to provide Copyright Management Information instead (which, in court doesn't sufficiently prove ownership) and threatened our associate with being sent to their “litigation team” if they don't pay. Our associate ultimately ignored them, they received an email stating the case went to their litigation team and that they should retain an attorney.
A few months passed and they didn't hear anything more about the matter prompting them to bring the matter to our attention. (Who are we? Rather not say, but will point out, we're not attorney's but work with them.) To date they haven't heard back from Higbee and in looking into others with similar experiences, this is basically common, no one really hears from Higbee after the final email. The caveat being unless there is a registration provided with the initial letter, that seems to be the key, or if they never receive a registration if asked.
We are intending on taking this information to higher sources to see if the information can reach a wider audience, however, there is no guarantee on a time-frame of when that could be done.
Until we can bring it to higher sources, we decided to post it here, and maybe a number of other locations to get the word out. If you know someone who is dealing with Higbee, we encourage you to share this post with them.
TL;DR:
-Higbee has handled an estimated 150,000 cases.
-They've only gone to could on about a tenth of one percent of the cases.
-The images are unregistered for the most part making them too costly to go to court on.
-This means, basically, payment is optional.
-Non-attorney's are handling and negotiating the claims within a spectrum of pre-approved amounts.
-The numbers they are demanding are inflated.
-Nothing happened when our associate ignored them.
-If they don't send you the registration, it isn't registered.
