A number of my first few tilts against the abusive copyright enforcement practices pursued by Mathew Higbee and Associates involved, in part, the issue whether the posting of an inline deep-link to a copyrighted photograph constitutes copyright infringement. Higbee insisted that the Ninth Circuit’s invocation of the “server test” to hold that such displays are not infringement was limited to claims against search engines, and he mentioned more than once that it was his ambition to press that issue to the Ninth Circuit (but he was never willing to litigate that issue once I appeared as counsel in the case).
He finally has such a case in the Ninth Circuit, where he is arguing that issue on behalf of one of his longtime clients, Robert Miller. (He is less fortunate that the Ninth Circuit has already held oral argument in another case raising the same issue, Hunley v Instagram, in which, to my mind, Joe Gratz did a very fine job arguing that there is no infringement. It is often hard to predict outcomes from oral arguments, but if I had to guess I would expect an affirmance.
His client, Miller, was subjected to an award of attorney fees of close to $100,000 because the district judge found that the Higbee firm had made unreasonable arguments on this issue and had litigated in an unreasonable way. Miller has now submitted a pro se request to the district judge asking to be relieved of the attorney fee judgment on the ground that his lawyers failed to let him know how risky it was to take the legal position that the Higbee firm took on his behalf, and that Higbee had personally told him that ”this case was important for his law firm to pursue.” Miler contends that the case was pursued for the firm’s interests more than his own.
This is not the first time that a dispute between the Higbee firm and one of its photographer clients has burst into public view. Michael Grecco sued the Higbee firm in California state court for malpractice; the Higbee firm countered with a fraud claims. That case settled this spring.
I do not assume that Miller has fairly characterized what the Higbee firm did or did not tell him about the risks entailed in the case. I asked Mathew Higbee for comments on Miller’s complaints about him; but publicly contradicting a client can be a delicate matter, it is understandable that he declined to address his client’s complaints pending a possible order from the Court requiring him to do so.
The case is worth watching.