Ann Arbor (Informed Comment) – Running a small independent publication on controversial issues is fraught with problems. One of them is that people threaten to sue you. It happens time to time. For some reason the Israelis are particularly trigger-happy about threatening lawsuits. Many years ago the notorious MEMRI campaign to translate only the worst things in the Arabic press, founded by an Israeli ex-military intelligence officer, threatened to sue me. They did not have a leg to stand on, since political speech in the United States is protected by the First Amendment. I made their threats public, and never heard anything more from them.
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So, this summer I’ve been being harassed by Higbee and Associates, who are the next best thing to a copyright troll, on behalf of an unnamed client that has provided no proof of ownership of copyright. Higbee is, outrageously, demanding $26,000 for copyright infringement. Most recently Higbee sent me a mock-up of a lawsuit to be filed at a district court, which I thought at first had actually been filed. It was extremely dishonest.
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Here’s what is interesting. The basis of the claim is that Informed Comment embedded video from i24, an Israeli television channel, via YouTube. The front image of a YouTube video is called a “flash image.” YouTube licenses the flash image to those who embed the video. Higbee falsely maintained that I personally uploaded copyrighted photos to IC. I did not. The only images that appeared at IC were the flash images from YouTube via a WordPress app installed by our tech team. It is more complicated than just embedding, which is of course uncontroversial, and I won’t go into the details, except to firmly deny the charge and to say that the threatened suit is frivolous.
Moreover, the flash images were used (by a well-known professor at an educational blog) as the foundation for commentary, parody or criticism, which is fair use.
Since the only photos at issue are the flash images from i24’s YouTube channel, I can only speculate that this is an Israeli-instigated form of harassment.
I’m therefore starting our annual fundraiser early this year, in hopes that Informed Comment‘s fans will help me not only keep Informed Comment going again this coming year but also to build a war chest for possibly going to court. It is important that we stand up to such bullies and keep them from preying on small publications. But defendants under US law are not entitled to court costs even if they prevail, and it is the substantial cost of going to court that leads people to fold and make a settlement in the face of unjust demands Informed Comment has retained counsel in this matter, which involved a hefty retainer fee.
As you all know, I am critical of Israeli policies toward the Occupied Palestinian Territories and the current government’s complete disregard for International Humanitarian Law. Informed Comment has been one of the few news and commentary sites you can find at Google News that has covered the ongoing Gaza genocide in detail, and has had straightforward headlines about the atrocities there that name the Israeli military and do not resort to the passive mood. Although IC has been shadow-banned on Facebook and gets a fraction of the hits from that platform that it used to, I’m convinced we still have a wide reach because people email the posts around. We have no metrics for how many people see them this way, but it is likely tens of thousands at least, and some may reach even more readers. By the way, this is a reason you should *not* try to subscribe to IC via Facebook. Subscribe for the email Newsletter:
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The reason that I even embedded video from i24 is that I try to be even-handed. Most Jews did not come to Israel as settler-colonialists but as refugees from places where people were trying to kill them. Many are descendants of Holocaust survivors. That the British Empire gave them refuge in someone else’s country — Palestine — is a grave injustice toward the Palestinians. Israelis should make peace with the Palestinians and give the latter the right to citizenship in a state. But individual Israelis have a right to life, liberty and the pursuit of happiness like everyone else. I have several times spoken in Israel and value my Israeli friends and colleagues.
This attempt on my part to be even-handed and to let Israeli media speak at my web site turns out to have been a mistake, however. Because someone at i24 or associated with it has now put Higbee up to spamming me with these threats to take me to court for a big pay-out.
Because of the Israeli angle and the editorial stance of Informed Comment, it is possible that this threatened court action is foundationally a Strategic Lawsuit Against Public Participation ( SLAPP suit), intended to shut Informed Comment up. If so, as a lay person I can only wonder if Higbee, which has offices in Nevada and California where SLAPPs are prohibited, might be held liable for launching this frivolous action.
And I have to say, this experience is beginning to change my view of the Boycott, Divestment and Sanctions movement. I think it is important to boycott firms implicated in the illegal Israeli Occupation of the Palestine Territories, and firms that contribute to the ongoing genocide in Gaza. It is moreover incumbent on us to boycott settler-made goods, which are a form of theft from Palestinian resources. But I don’t generally approve of academic boycotts and have often and loudly spoken against professional associations applying BDS to, e.g., Israeli universities. (Contemporary BDS does not target individuals, only institutions).
But if a well-intentioned platforming of i24 turns into an attempt to bankrupt Informed Comment, then I wonder if people shouldn’t stay away from formal Israeli institutions. There is something creepy and cult-like about this level of antipathy to any criticism at all. (The cultish side of Israel derangement syndrome is examined in the film, Israelism, which streams on Apple TV among other places.)
Personal checks should be made out to Juan Cole and sent to me at:
Juan Cole
P. O. Box 4218,
Ann Arbor, MI 48104-2548
USA
(Remember, make the checks out to “Juan Cole” or they can’t be cashed)
As for Higbee, I’ll give the last word to Matthew Sag, who blogs copyright law and who writes that:
- “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.”
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