McCormack IP Business Law

On a letter dated January 21, 2014, Seattle Attorney Timothy B. McCormack (Timmy) attempted to intimidate and threaten me with his annoying, ludicrous, and quite laughable “Infringement / Defamation / Harassment Letter“. He sent this letter while I was in an indefinite self-imposed exile from my own website, ExtortionLetterInfo.com (ELI) and The ELI Forums.

It apparently wasn’t enough for him that I chose to withdraw from posting and participating from my own website. I had been silent and uninvolved for 10-months letting ELI volunteers continue running and overseeing ELI. Timmy must have been delusional and figured that I was humiliated and beaten into submission over the bogus March 2013 Permanent Protective Order (PPO) in favor of the “The Dash” Poem Copyright Extortionist Extraordinaire, Linda Ellis. My case was under appeal with the Georgia Court of Appeals (now transferred to the Georgia Supreme Court) and I saw no reason to waste anytime on ELI while that was going on. Most of the Linda Ellis / Dash Poem victims were cowards and I saw no reason to stand up for them anymore. (However, April Brown is THE PERSON to contact for all things relating to fighting Dash Poem copyright extortion. (Google “April Brown Linda Ellis” and you will see what I mean.) The Linda Ellis victims have taught me that it is stupid to try to advocate for victims too frightened to even speak out. The Getty Images (among others) victims were well-represented and I wasn’t needed in the day-to-day operation any more.

Timmy apparently decided it was time for him to push on me and otherwise intimidate me while I was in self-imposed exile with his “threatening” letter. Unlike many of his victims, I am not so easily intimidated nor do I back down so easily. It was his letter that triggered me to come back to ELI in full force. He probably saw my absence as a sign of weakness. Since I made my fair share of enemies (nearly all whom are either lawyers working as or for copyright trolls and copyright extortionists), the only way to show that I wasn’t defeated was to come back in a very public way. I was only lying dormant, not defeated.

I wrote a few versions of my response letter to Seattle Attorney Timothy B. McCormack before I settled on the one I ultimately sent out on March 2, 2014. The text of that letter is provided below:

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March 2, 2014

Tim McCormack
c/o McCormack Intellectual Property Law PS
617 Lee St.
Seattle, WA 98109
FAX: (206) 381-1988

Via FAX & First-Class Mail

Tim,

This letter is my “formal response” to the frivolous and baseless form letter you sent me in January 2014 regarding the supposed infringement of your copyrighted headshot photo. Honestly, this letter is an exercise of repetition because you have shown that you are an avid reader and follower of the ELI website and the ELI Forums. The majority of the content and points of this letter has already been publicly posted and discussed on ELI. But I don’t want it said that I am incapable of being professional as challenging as it may be for me in this case.

Understandably, you have a high level of interest in any posts that may reference your name or business. I surmise you follow ELI daily to the degree you have shown an extensive screen-capture inventory of ELI posts in this and other communiques. Given this, I find your letter to be entirely frivolous, reckless, irresponsible, and unbecoming of a lawyer of your supposed stature and qualifications.

Your form letter included screenshots from July 26, 2012. However, we are now in 2014! It literally takes less than 30 seconds to verify that ALL your screenshots to those posts are outdated and obsolete. In fact, no user-posted images are currently displayed in the ELI Forums. This has been the case since March 2013. You should know this from your self-serving involvement in the Ellis case and the subsequent appeal. The ability to automatically display images (and other media) in the ELI Forums was deactivated to help prevent exactly the frivolous accusations such as the ones you are now making of me and ELI.

While it may not have been immediately apparent prior to March 2013, all ELI Forum user-posted images, memes, and videos were only “hot-links”. As you appear to be technically-unsavvy based on your baseless claims, I want to inform you that you can easily “right-click” any image or hyperlink from any contemporary web browser and you can easily determine where an object is actually hosted.  Just because an image is displayed on a website does not automatically mean that website actually hosts it. To the best of my knowledge and my research, ELI has never hosted any image containing your headshot.

Considering that you insist on a formal reply from me when you could have done the necessary research yourself, I make the following additional points:

1.   None of the posts you complain about was caused or posted by me. Hence, I cannot be harassing or defaming you. In fact, one of the posts you complain about doesn’t even exist anymore and was voluntarily deleted by the original poster in March 2013. I recommend you consult Section 230 of the Communications Decency Act. ELI hosts discussions and posts of other users. And while I certainly do participate and post on ELI, I am only responsible for those posts I make, not other users’ posts.

2.   None of the alleged copyright infringed images have been displayed on ELI since March 2013. Even if they were displayed, that does not automatically constitute copyright infringement on any ELI users’ part. They were hot-linked images and memes hosted elsewhere from ELI. I recommend consulting the case of “Perfect 10 vs. Amazon”.

3.   In two of your screenshots, your headshot photo is clearly part of screenshots of Google searches. I suggest that if you don’t want your image showing up on a Google search, then maybe you should consider removing your image from your own websites so it won’t show up on anyone’s screenshot of a Google search. FYI, screenshots for commentary purposes are perfectly allowed under “fair use” and that is exactly what it was used for in that post.

4.   None of the messaging on the complained about memes are even remotely close to meeting the standard of defamation or harassment. Most reasonable people know by its simple appearance and messaging they are meant as parody, satire, or negative commentary. The fact that people are making negative commentary about you doesn’t automatically make it defamation or harassment.

I highly object to the ongoing abuse of your privilege as a licensed attorney to try to lie, mislead, and intimidate laypeople such as myself. I may not be a lawyer but, fortunately, I am aware of my rights and responsibilities as a discussion forum host and website host. You and your office have a track record of writing misleading extortion letters designed to trip up and mislead the legally ignorant and the legally spineless. I am not one of those people.

With regard to the other information you are asking for, I outright refuse to provide them to you as you have no legitimate basis or authority to do so. Regarding information on ELI’s traffic, consider visiting Alexa.com, for example.

Regarding how much income ELI generates for me, I will gladly provide you that information in exchange for how much the Getty Images copyright enforcement business generates for you. I consider that a fair trade. Absent that, you have no legitimate basis or authority to get that information from me.

As I have now acknowledged the relevant issues of your complaints, I am going to take the opportunity to make a few points of my own.  You have demonstrated this past year your hatred of me, Oscar Michelen, and ELI, in general. Your ongoing attack campaign against everything ELI is self-evident. You have done everything within your power to attack, threaten, discredit, disparage, and damage me, in particular. You somehow continue to blame me for the ills of your so-called copyright enforcement business. Perhaps if alleged infringers weren’t treated as criminals trying to squeeze disproportionate amounts of money for what amounts to be a “speeding ticket” on the Internet, your professional life would be easier. Perhaps if you weren’t so sloppy professionally and didn’t behave like a hack lawyer, you would get a bit more respect.

You continue to blame me for everything other ELI community members have posted about you when, in fact, they are intelligent, independent thinkers and passionate, self-motivated contributors of the ELI Forums. Any perceived influence I might have over them is due to the intense disdain and hatred for Getty Images and your role and behavior as their collections lawyer. It is because of you and Getty Images’ ongoing “copyright enforcement” efforts in particular, that ELI, the ELI Forums, and the ELI community came into existence.

You and Getty Images’ relentless, merciless, and duplicitous pursuit of revenues-at-all-costs (under the guise of copyright enforcement activities) continues to generate more disdain and hatred towards yourself and Getty Images with every passing day. Can you not plainly see this? Can you not plainly see that Getty Images is using you as a pawn while your corporate counter-parts within Getty Images Corporate Counsel department remain comfortably in hiding while you take all the arrows and bullets? Have you never wondered why no one within Getty Images Corporate Counsel has ever publicly spoken out on your behalf? They are cowards hiding within the womb of their corporate mommy.

In closing, the next time you decide to send a complaint letter to me, do your research and get your facts straight. Just because you want to write to me making frivolous and baseless claims does not automatically mean I am legally obligated to respond to you.

Onward and upward,

Matthew Chan
On behalf of ExtortionLetterInfo.com

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ELI Legal Advisor Oscar Michelen was also sent a copy of the letter I received, presumably so that Oscar might exert his influence over me (as “Daddy Oscar”) to “cooperate” with Timmy’s request. Oscar was not happy about this and wrote a stern response back to Timmy.

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January 29, 2014

Mr. Timothy B. McCormack
617 Lee Street
Seattle WA 98109

Re: Cease and Desist Letters

Dear Mr. McCormack:

This letter is sent to respond to two cease and desist letters recently issued by you.  The first letter was issued to www.copyright-trolls.com; the second was issued to me personally and to www.extortionletterinfo.com and its owner Matthew Chan. I will address them one at a time.

Copyright-trolls.com

Please be advised that I represent this site with respect to your claim regarding the use of an image purportedly owned and copyrighted by you. Please direct all future correspondence on this matter to me and not my client.

In an exercise of caution and to not to have to have continued correspondence with you on this matter, the site has complied with your cease and desist request and removed any display of your picture. The rest of your demands will not be complied with however. As to any purported claim of “defamation” I remind you that the First Amendment greatly protects speech, parody and comedy.  In fact, last week or so, the Ninth Circuit (which covers Washington State), in Obsidian Finance Group v. Cox, ruled that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove malice (if they are public figures) or negligence (if it is a matter of public concern regardless of their status) to win damages.  The Court further reiterated the public’s right to post opinions, even if they are nasty and crude. It stated it looks at three factors to distinguish between “fact” and “opinion” as follows:

“(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”

All three of those factors point to the obvious: that any statements or references to you in the posts to which you object are at best statements of opinion and are not defamatory. There was no false fact contained in any of the post of which you complain.  They are merely jokes or expressions of opinion that amount to parody. No one believes that the posts are actually saying you are actually a “turd;” that is just an opinion and an attempt at humor.  Particularly when aimed at someone who is a public figure like yourself, these types of sarcastic, even negative, parodies and commentaries are protected.

Moreover, your continued use of boilerplate, threatening letters on behalf of digital image warehouse companies, while likely lucrative to you, naturally exposes you to being the target of scorn and commentary. You cannot pretend to ignore the numerous sites, bloggers and journalists who have decried “copyright-trolling” as a scourge of the Internet. That places the subject matter and those who engage in it in the public eye and open to expression of opinion contrary to their pursuits.  Far be it for me to tell another lawyer how to run his practice, but I would venture to guess that the more you continue in this method of practice, the more you will continue to be criticized by third parties.  Copyright-trolls.com has no less right to express negative opinions and make negative comments on what you and others do than the Washington Post or the NY Times. Accordingly, I hope and expect that this communication ends this issue.

Extortionletterinfo.com

Much more troublesome is your communication to me regarding ELI. First of all, I do not practice out of my home; I am a partner in a litigation law firm with two offices – one in Manhattan and one on Long Island.  While in the past you have unsuccessfully tried to embarrass me by writing my partner Matthew Cuomo at our Manhattan office which he manages, I ask that you direct all future correspondence to me at our Long Island office, which I manage. There is no reason for you to communicate with me at my home; any further communication about a client or potential client of mine that is directed to me at my home will be taken as harassment and reported to your State Bar.

Next, your letter refers to ELI as “your [meaning my] website” and asserts that you are writing to me so that I may use my “ownership” of the site to influence compliance with your demands. Too many times to mention it has been made clear to you that I do not own ELI in whole or in part. Your participation in the Linda Ellis matter also served to further instruct and advise you that Matthew Chan is sole owner of ELI. Your continued assertion that I am an owner of ELI is frivolous, baseless and beyond explanation – you clearly do not care that you are making a wrong and insupportable accusation.

You then also reference me as “opposing counsel.”  On what matter am I opposing counsel to you with respect to ELI? Are you writing me as ELI’s lawyer or as ELI’s owner? Or both? Currently, I am in fact neither. Matthew Chan will likely want to respond to your letter directly himself. If I am going to respond on behalf of ELI, I will lead my letter with a sentence advising you that I am acting as ELI’s attorney. (See the section above dealing with copyright-trolls.com. as an example). You then intimate that I am somehow behaving in violation of Rule 8.4 of the Rules of Professional Conduct while at the same time asking me for “professional courtesy.”  This request for courtesy is laughable, coming from an attorney who:

(a) made a completely frivolous and baseless multi-page complaint against me with the Grievance Committee of my State Bar; (b) included it as an exhibit in the improper affidavit submitted in the Linda Ellis matter so that the complaint is now also a matter of public record in the Georgia Court system; (c) who wrote to my law firm partner, as if writing to scold a child to his parent; (d) who writes me repeatedly at home over business issues; and (e) who continually and falsely claims that I own a website I have no ownership in.  In my 27 years of practice as a litigator in one of the most litigious States in the Union, I can recall only one or two attorneys that I have less respect for than you Mr. McCormack. So before you ask me for “professional courtesy,” I suggest you find the nearest mirror. While I always extend professional courtesy to my adversaries, it is a two-way street and I will afford you precisely as much courtesy and respect as you seem to afford me.

To that end, let’s look at Rule 8.4 which you cite:

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Of course, like most of your demand letters, you provide no factual basis or explanation as to why any of these sections should apply to my conduct. I ask that you send me a detailed explanation of which of these sections I may have violated (or will violate) and the facts you rely upon to support such claim. Otherwise I will deem this part of your letter to constitute yet another frivolous and baseless accusation against me.

With respect to the substantive matters addressed in the letter to Mr. Chan, I expect he will respond to you himself. But, as usual, this looks like a boilerplate copy of the letter you sent my client at copyright-trolls.com, so the same arguments would apply.

In conclusion, address all future correspondence on the copyright-trolls.com matter to my attention at my Long Island Office. Furthermore, cease and desist from making baseless and frivolous allegations about my professional conduct and my practice of law.

Sincerely,

OSCAR MICHELEN