What is a group of trolls called? A gaggle, a craven, a drool, a pollution? Scanning the Internet, we actually found a discussion about this and a crèche of trolls seems to be the most popular. We pondered this subject as we’ve seen an infestation of trolls (good one, right?) regarding copyright lately.
In two previous articles in this blog we have referenced Federal Court judges penalizing, sanctioning and deeming attorneys as “copyright trolls” See this link and this link to read those two previous pieces. And an update on Mr. Liebowitz is below. Unfortunately, he is hardly alone among lawyers deemed, adjudged or treated as copyright trolls both in America and abroad by various courts and tribunals.
OK, so how does this affect you? Why should you care if someone else is using a “suspected”, “reputed” or judicially decreed a “copyright troll”? Or if someone uses one of those companies that purports to detect infringements and then collects money? We mean, wouldn’t this be a good thing, infringers being gone after, you getting money from infringers? In two words, not really.
Here’s why it matters to you and to legitimate copyright attorneys everywhere. The federal courts/judges nationwide are so sick of handling a sudden deluge of thousands, mostly bogus cases – or at least cases that should have been resolved without the need to file the case in court- that they are not only penalizing the guilty but they are downgrading the monetary value of legitimate copyright infringement cases brought by erstwhile, competent lawyers on behalf of creatives. Many judges openly express their displeasure at “handling another one of those cases”. At which point it is incumbent upon the attorney for the photographer to differentiate his/her law firm from those that troll and demonstrate that the value of your case should not be determined or compared to the (perhaps) thousands of settlements facilitated by the courts in the $100s to $10,000 range.
In other words, your very high value case is being downgraded, placed in the bargain bin of lawsuits by the judge before its merits are really examined. That’s why the other suits that have nothing to do with yours is affecting your wallet.
Contrast the situation to a property damage case where a car has been destroyed. Judges and juries need not be mechanics or car fanatics to know that a new Honda Civic is relatively easily replaceable and costs a whole lot less than a vintage ’57 Chevy or new Rolls Royce. Judges and juries understand that prices of cars vary widely and are based on make, model, year etc. They do not understand that photography has similar variations in licensing fees and/or commercial value. Their experience might be rooted in their only personal interaction with a professional photographer for their high school graduation photo, their wedding photographer, or even a retail portrait photo of them in their judicial robes. A huge price difference from a commercial photographer shooting a national ad. It is therefore unfortunately understandable that if a judge sees low value in an infringement case. If your case is a high value infringement case but comes after the judge has seen a bogus infringement case settling for a small sum of money, right after presiding over a nuisance value infringement case your judge may be pre-disposed to valuing all photo infringement cases as a low value dispute unfortunately treating your similar sounding case in the same manner as the previous ones.
When stock agencies devalued individual works by cheapening the licensing fees and boosting supplies, the value of stock imagery plummeted. The courts are now viewing these cases in a similar way. Unless your attorney, with your help, can go that extra 2 miles to establish that your case is distinctly different from those others, your case may at first look be treated as just another low value case which like the others doesn’t even belong in court.
In the past, most judges looked forward to copyright cases, found them interesting and it broke up their daily schedule of more traditional (and boring) commercial disputes or accident cases. That is no longer the case especially in those Federal Courts which have been subjected to thousands of cases from trolls and their substantial equivalents trying to use the threat of litigation to make a buck.
One lawyer, Richard Liebowitz, deemed a “troll” by Federal judges, who we’ve covered in two previous blog pieces (links above in second paragraph), seems to have added another chapter to his own saga. To paraphrase Yogi Berra, “You can even look it up”.
The Federal Court in Manhattan/White Plains known as the Southern District of New York, (“SDNY”) again sanctioned copyright plaintiff’s lawyer Richard Liebowitz and his firm nearly $100,000 for making a frivolous motion to disqualify an expert witness. The judge in that case, Judge Oetken who is no stranger to copyright law. About a week later, in an entirely unrelated case another SDNY Judge, Judge Furman, also sanctioned Liebowitz and his firm $8,745.50 for his failure to comply with several court orders including one which required that Mr. Liebowitz physically appear in court. The case for those Yogi fans who want to look it up, is Rice v. NBCUniversal Media LLC. The first paragraph in that decision includes a list of other cases where Mr.Liebowitiz has been sanctioned in the SDNY.
In yet another case, Craig v. UMG Recordings, Inc., et al., SDNY Judge J. Paul Oetken like a few other judges, obviously made no effort to hide his displeasure in having to handle cases where these shenanigans occur. The court awarded defendants $64,691 in attorneys’ fees plus costs (mostly for defendants’ expert costs) of $33,453 bringing the total sanctions in that case to $98,532.62. That’s not chump change, going to the defendant. All we can say is “Wow!”.
You might at this point you may be wondering, “Why if these cases are not worth a lot of money, how are they getting into the court system and in front of federal court judges at all”? Excellent question. Simple answer.
The number of “demand” letters sent out by non-attorney, “copyright enforcement” companies coupled with the nearly identical “demand” letters issued by trolling attorneys are so numerous that they are being taken seriously by alleged infringers and competent copyright attorneys. Recipients of these letters whether individuals or companies feel that they are being extorted, refuse to pay arbitrary amounts of money where no valid claim exists. If they are not an Intellectual Property (IP) lawyer, they will call a lawyer familiar with these bulk demand letter and such attorneys know that defending against these often-bogus claims, can put money in their own pocket’s – see above. So the recipients of the typical demand letter sent to a person or company that says, “You have infringed yadda, yadda, yadda, and pay us $2,500 or we will sue you” is now more often being met by a return letter authored by competent legal counsel which – in sum and substance while versed in legalease – replies “Go ahead, make my day. Sue my client”.
A recipient of one such form demand letter claiming infringement and demanding immediate payment, is an attorney who worked for Ed decades ago. It accused him/her of copyright infringement and demanded $2,500 to make the case “go away”. The recipient/attorney who has been litigating in the Federal Courts all over America for 35+ years, wrote back explaining why such was not the case, there was no infringing activity and that neither the attorney nor client would ever see one dime from him/her. Ed now has the matter, and should the case get filed and become a public record, it will likely attract as much if not far more attention than the ones referenced above. Suffice to say, after the client’s refusal to pay and receipt of Ed’s letters to the photographer’s attorneys, nothing has been filed in any court on behalf of the photographer. If it is filed, Ed, like the attorneys in the cases cited above will seek to recover attorney’s fees and sanctions against the lawyers who engaged in such shady activities and will (he hopes) join a growing list of attorneys who have recovered substantial fees defending bogus claims.
At the end of the day creatives are worse off, the value of their works and infringement cases are devalued by those who seek to make a quick buck from photographers who are enticed by dreams of a quick pay day without paying a lawyer any upfront fees or using a search company to “detect and collect”. They sound too good to be true and, in our experience, they are. In the end, buyer beware, caveat emptor.
