More baseless and unethical demand letters from Mathew Higbee

by Paul Alan Levy

It’s been some time since I have had occasion to write about Mathew Higbee’s use of baseless threats of litigation seeking to wring undeserved dollars out of alleged copyright infringers. To be sure, many of his demand letters seek remedies for plainly infringing uses, even if his monetary demands tend toward the excessive.

But today’s post is devoted to a pair of demand letters sent to former clients of mine who had to sue clients of the Higbee firm back in 2019 and 2020 for declarations of non-infringement after he had threatened to sue them over websites that were hosting discussion forums to which users had posted photographs, or links to photographs. Both in threatening Jessamyn West over her MLSTHP site, and in threatening to sue the Mockingbird Foundation over its website for Phish fans,, the Higbee firm sought to take advantage over those hosts’ failure to perfect the registration of DMCA agents for receipt of takedown demands. But the threats foundered anyway, on the standard requirement that copyright owners show that the infringement was volitional.

Both Higbee clients had to agree to drop their demands, and one of the clients had to pay $10,000 in attorney fees. In light of these cases, as well as the retraction of a Higbee firm demand letter to Erik Anderson in response to a declaratory judgment action on behalf of photographers Mark Seliger and Steven Hirsch, Mathew Higbee assured me that his firm had stopped issuing demand letters to forum hosts over photographs posted by their users.

But the Higbee firm has returned to its old tricks (and why so greedy? from the frequent queries I receive, its legitimate business has scarcely dried up). In the past month, I have heard both from counsel for Jessamyn West and from counsel for Mockingbird Foundation about demand letters that their clients received, demanding $7000 in damages for copyright infringement based on a Timothy White photograph posted by a user to MLTSHP, and demanding $25000 in damages based on the fact that there is a deeplink to a Jeffrey Werner photograph posted to a user comment on But these threats are double frivolous, because not only does the Higbee firm know that infringement liability would barred by the volition doctrine, but both sites fixed their DMCA agent registrations before the previous litigation began, and hence neither could be sued for damages anyway because the DMCA makes them immune so long as they respond promptly to properly submitted DMCA takedown notices (and lest one think the Higbee firm is unaware of the DMCA agents — Mockingbird ALSO received a Higbee firm DMCA takedown letter for that same photograph).

But it gets worse. One of the dirty tricks pulled by the Higbee firm in the course of its initial demands to Mockingbird was that, even after Mockingbird’s regular counsel responded to the demands, identifying himself as counsel, the Higbee firm persisted in sending its cascading threats of damages liability directly to Ellis Godard, Mockingbird’s executive director, including threatening Godard with personal liability. It is, of course, unethical for a lawyer to communicate directly to a client who is represented by counsel. I have always suspected that the reason why Higbee client Luong agreed to pay $10,000 to settle our fees claim while Higbee clients Seliger and Hirsch decided to fight – and they both had the same reasonable and ultimately successful argument against our application – is that the Higbee firm wanted to avoid having their nose rubbed in their unethical conduct (which, of course, would have been a factor in the reasonableness analysis)

The Higbee firm knows perfectly well that MLTSHP and Mockingbird have counsel. In the leadup to the previous litigation, Higbee firm naggers (“compliance resolution specialists”) and Higbee firm attorneys corresponded with MLTSHP attorney Dan Booth and with Mockingbird general counsel Steve Paolini, and of course the Higbee firm litigated cases involving both alleged infringers. Over the years, I have heard from other lawyers who have dealt with demands from the Higbee firm about similar misconduct in their situations, where the Higbee firm went behind the backs of lawyers directly to their clients.

In nearly 45 years of practice, I have never filed a bar complaint about a litigation adversary, and I actively discourage my clients from doing so. But the Higbee firm may deserve an exception to this rule.

0 thoughts on “More baseless and unethical demand letters from Mathew Higbee

  1. Jessamyn West says:

    Oh hey interesting to see this today as I JUST got an email from Higbee saying “our client has authorized us to close the matter” in the most recent shakedown. Maybe the letter I sent them referring them to the last time we encountered them in court had something to do with their more reasonable response this time. Thanks for all you do.

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