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 cr\u00e8che of trolls seems to be the most popular. We pondered this subject as we\u2019ve seen an infestation of trolls (good one, right?) regarding copyright lately.<\/p>\n
In two previous articles in this blog we have referenced Federal Court judges penalizing,\u00a0sanctioning and deeming attorneys as “copyright trolls”\u00a0See this link<\/a> and this link<\/a> 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.<\/p>\n OK, so how does this affect you? Why should you care if someone else is using a “suspected”, “reputed” or judicially decreed a “copyright\u00a0troll”? \u00a0Or if someone uses one of those companies that purports to detect infringements and then collects money? We mean, wouldn\u2019t this be a good thing, infringers being gone after, you getting money from infringers? In two words, not really.<\/p>\n Here’s why it matters to you\u00a0and<\/em>\u00a0to legitimate copyright attorneys everywhere. The federal courts\/judges nationwide are so sick of handling a sudden deluge of thousands,\u00a0mostly\u00a0bogus cases – or at least cases that should have been resolved without the need to file the case in court-\u00a0 that they are not only penalizing the guilty but they are downgrading the monetary value of legitimate copyright\u00a0infringement\u00a0cases brought by erstwhile, competent lawyers on behalf of creatives.\u00a0Many judges openly express their displeasure at “handling another one of\u00a0those<\/em>\u00a0cases”. 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.<\/p>\n 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\u2019s why the other suits that have nothing to do with yours is affecting your wallet.<\/p>\n Contrast the situation to a property damage case where a car has been destroyed.\u00a0Judges 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.\u00a0They do not understand that photography has similar variations in licensing fees and\/or commercial value.\u00a0<\/em>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. \u00a0It is therefore\u00a0unfortunately\u00a0understandable\u00a0that if a judge sees low value in an infringement case. If your case is a \u00a0high 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\u00a0all<\/strong>\u00a0photo infringement cases as a low value dispute unfortunately treating your similar sounding case in the same manner as the previous ones.<\/p>\n 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\u00a0<\/em><\/strong>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.<\/p>\n 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.\u00a0That 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.<\/p>\n One lawyer, Richard Liebowitz, deemed a \u201ctroll\u201d by Federal judges, who we\u2019ve covered in two previous blog pieces (links above in second paragraph), seems to have added another chapter to his own saga. \u00a0To paraphrase Yogi Berra, “You can even look it up”.<\/p>\n The Federal Court in Manhattan\/White Plains known as the Southern District of New York, (“SDNY”)\u00a0again<\/strong>\u00a0sanctioned copyright plaintiff’s lawyer Richard Liebowitz and his firm nearly $100,000 for making a frivolous motion to disqualify an expert witness.\u00a0The judge in that case, Judge Oetken who is no stranger to copyright law.\u00a0 About a week later, in an entirely unrelated case another\u00a0SDNY 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.\u00a0The case for those Yogi fans who want to look it up, is\u00a0Rice v. NBCUniversal Media LLC.<\/a>\u00a0 The first paragraph in that decision includes a list of other cases where Mr.Liebowitiz has been sanctioned in the SDNY.<\/p>\n