Copyright Troll May Have Set an Expensive Precedent for Copyright Trolls
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[0] https://reason.com/2019/11/07/the-judge-and-the-suspicious-d...
“Further, Mr. Liebowitz is hereby ORDERED to appear before this Court in person on November 13, 2019 at 10 a.m., and there and then SHOW CAUSE why he should not be incarcerated until such time as he complies with the above-described orders (and, if applicable, the instant order).”
``In an attempt to counter Seibel’s devastating dissection, Richard Greenberg, one of Liebowitz’s lawyers, said his client was “not playing with a full deck,” adding that he shared the judge’s “mystification” as to Liebowitz’s behavior.''
[0] http://www.thesmokinggun.com/documents/investigation/judicia...
The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it but I have not been able to understand it.
Note also, that in the UK the court asseses the costs to be paid by the loser, you don't just get hit with the defendants lawyers invoice, an estimate has to be submitted before the trial begins, they cannot be disproportionate to the damages being claimed and there are lots of exceptions for things like small claims court costs which are limited.[1]
[0] There was probably some emotional harm and lost earnings in there too, but the house was the big one.
Edit: I would expect the main claim to be reputational damage with some absurdly high made up dollar value, and if the facts of the case are as you have presented them, the plaintiff would probably win a smaller, but still very high award.
You can’t even put punitive damages in a contract, so for example if you hire a builder and write that the house must be finished by date X, or they have to pay Y per week. You can’t select any figure for Y it has to be a reasonable estimate of how much it would cost to deal with the situation i.e rent another house temporarily, pay removals company twice etc. If it’s too high you run the risk of having the term struck out as punitive and therefore getting nothing.
If you want a million-dollar legal team, you can get it. But you have to pay for your opponent’s million-dollar legal team too.
A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous.
To fix this, it ought not be the losing plantif who has to pay, but rather in frivolous cases, the losing lawyer ought to pay.
Frivolity can be determined by the judge or jury (perhaps only after unanimous verdicts)
This way, it is the responsibility of the lawyer to take on only cases which have real legal merit, and stop digging for gold.
Edit: I've held this idea for a while and don't see many shortcomings. I would love to see where it falls short if someone disagrees.
No, they are more selective about taking on contingency cases. Every losing contingency case is hours of unpaid work.
I've sat on a jury for 2 days on a malpractice case that had no factual basis, that relied on a tortured interpretation of medical notes.
We unanimously decided the case for the defendant. Wish we had the opportunity to somehow penalize the lawyer for wasting everybody's time. I'm sure I'm not alone.
The only reason the lawyer took the case was that he was hoping to strike gold, and was a crap enough lawyer that only people who were turned away from better lawyers (because they had no case) came to see him.
Having to pay for the doctor's lawyer sure would have deterred this guy.
What's the reason, and does that reason contravene legal/judicial ethics?
I am suspicious of slang terms like "ambulance chaser" and "jaywalking" that tend to bias the listener in favor of well-funded corporate interests over individual citizens.
I'm pretty sure that this works pretty much like spam or nigerian prince scams. If the lawyer works on tens or hundreds of such cases some % of those cases could be won and some % will settle to avoid legal costs. Total income might be high enough to justify unpaid work on other cases. I'm pretty sure that you could even partially automate a lot of things (or at least use some templates) for multiple similar cases thereby reducing the amount of unpaid work.
nobody would take jobs then unless the chance of winning was 99%.
The lawyer would also in those case being getting charged money to work.
Edit: Also the lawyer would not being charged money to work, they would be getting fined for wasting the court and jury's time. That's like saying a contingency lawyer is working without pay: well yeah, but it's factored into the cost of business. There are still chances for high payout but now there is also a much needed downside.
Isn't this somewhat handled by awarding "token damages" of $1 or similar? The litigating party "won", but it was determined that they were not actually harmed as claimed.
this on the other hand further increases costs of those frivolous cases requiring a second trial to test frivolousness of the case
Oh ok, as long as it isn't applied to every case.
If the goal is to reduce the caseload in the courts, loser pays is effective. If the goal is for the reasonable access to everyone of the courts, the current system is (I hesitate to say this, but) better. I also think that when you have a class of worker(lawyers) who's job is to read/interpret/test the boundaries of/defend the law of the land, you will always find some people who figure out ways to game the system.
An even better way would be to eliminate laws that let people be hauled into court when they have done no harm. A huge example is the war on drugs: criminalizing mere possession of drugs, with no requirement that the person has to have harmed anyone, means a huge number of drug cases cluttering up the courts that shouldn't even have gone to court at all.
Only federal judges and (in most states) the highest state court judges have lifetime terms.
as already posted in this thread, many countries solve this by putting a treshold on this amount to be repaid by having fixed rates for legal costs (you have to repay the legal costs but not more than those fixed rates)
Originally (in the 18th century), legal fees were regulated by the state (/colony), and these fees would be borne by the losing party. But these fees were rather miserly, so the legal profession argued for the ability to charge what they wanted as a consequence of freedom of contract. By the mid-19th century, the courts relented and permitted this, but cost recovery was limited to the miserly fees permitted by legislation, and it was felt unjust and unfair to have the losing party bear costs they had no control over. After some vacillation, the courts eventually agreed that costs could be recovered, but only if the legislature rather explicitly allows for it in law or statute.
*I'm quite sure that this solution in Polish legal system was modelled after the German law.
But that's also the big risk: if they're sure they're going to win, spend big to ensure that victory, and then still lose, then they lose far more than they can possibly afford. It's a very risky gamble.
The problem with each side paying their own fees is that there is no such beneficial investment scenario for the party that eventually wins. it's all pure losses and then you win but are not really compensated for the financial cost of defense.
It also would invite too many disputes into the courts, since an aggrieved party could feel it's almost free - the person who hurts them to the tune of a couple of hundred dollars will have to pay tens of thousands and they get nothing. It is possible that some disputes have a genuine good party and a genuine dodgy party, but in many cases they're just people who life happened to. The loser should compensate the other party but not necessarily get punished. If the loser was being malicious, they should be made to pay. But we shouldn't assume the loser is malicious, just that they lost.
It seems to me if you want the loser to pay, you'd have to create a regulated system for costs in order for them to be fair. A clever lawyer might have a way to take additional payments, but they'd have to be outside of the system, not recoverable by the court. But doesn't that end up in exactly the same situation as before?
I don't think there really is any feasible way to prevent rich people and companies to have access to more/better representation.
Google harms me in some way. I sue them. They throw an army of lawyers at the case. It takes years. Google wins, case dismissed. I should be on the hook for their legal fees?
Believe it or not, the last thing we want is to discourage people from thinking they have the ability to sue people who harm them. And suing for legal fees is also common practice.
Patent trolls are a problem with the law, not the legal system. They are also entitled to sue people violating their patents.
That's a separate issue from whether the loser pays: even with automatic loser pays (or in the situations where the loser pays even in the American system) limitations to “reasonable” costs (or actual specific legislated caps) are possible.
That's the solution in germany and it works quite beautifully (sans people intimidating others into believing they'd loose).
In Germany you have to buy insurance against getting sued. I mean, you could call that an indication of a beautifully working system, but I call it an utter failure.
That is incorrect, and what's more is that I have no idea where you're getting this from (it's possible that certain professions are required to buy extra insurance, but the only universally mandatory insurance in Germany is the health and social insurance).
> correlates to the total number of actual customers
Hard to say. Companies can have them, but I doubt there are 22m. Families can have them and cover multiple people at once. Germany's population is only 82m, so 22m just sounds like a lot to me.
[0] (ger) https://de.statista.com/statistik/daten/studie/6599/umfrage/...
Simply making sure the case takes as long as possible to be concluded and costs as much as possible works in practically any legal system as a way to gain an unfair advantage if you have more money to burn than your opponent.
The losing party doesn't automatically have to pay legal fees (but may be ordered to in certain cases) because, the theory is, that there is a space where a party is clearly wrong to even litigate, and a space where a party, even if they are legally in the wrong, is not so clearly wrong so that it is wrong for them to litigate to determine their rights, and that justice is best served when potential litigants with a reasonable case are not discouraged from litigating to determine their rights.
> The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it
The alternative to that is to increase the ability of a wealthier party to commit a wrong and leverage the irreducible uncertainty of a human justice system to intimidate a less-wealthy party to accept the outcome and not litigate, because of they are unsuccessful they will have a guaranteed high additional cost on top of the sunk cost of the harm done.
It's very common in Israel for the judge to rule that each side cover their own legal expenses (e.g. if the ruling is in favor of the defendant, but the lawsuit isn't frivolous).
Imagine if we forced a child to pay a police officer before the police would investigate claims of abuse.
1) many trolls who focus purely on shakedown settlement letters, Liebowitz runs straight to court to leverage the power of an expensive court case to push for insane settlements. - - Worrying. Why isn't there a bugfix coming? If the court system is so obviously exploitable...
I guess shutting down a troll business model is better than nothing, but.. This just basically shooos the problem away from courts and back into the expensive exchange of threatening letters... which is also and abuse of the legal system.
2) IP laws are important, and growing in importance as "intangibles" becomes a major class of assets, by way of corporate books. Just IP related lawyering (contracts, advice, courts, judges...) is a massive industry, nevermind the stuff it lawyers about.
Precedent is not really supposed to be the tool for this job, is it? Laws need to be written to be enforceable logically. At the least, they need to avoid creating obvious messes like patent trolling. I'd argue the sheer level of lawyering (measured in €) a type of asset attracts can be a sign it's been poorly defined.
I'm not really sure what the alternative dispute resolution process your talking about is. Are you suggesting a mandatory licensing fee system like radio stations use?
The alternative isn't civil law. The alternative is legislation, cleaner legislation preferably... reform even. It doesn't need to be on a massive scale, but it needs to do at a legislative level what this judge did/tried. Find a way that this type of copyright enforcement isn't ordinarily settled in such a lawyerly way.
His approach isn't bad, it's just outside of scope to do it properly via precedent.
The alternative isn't civil law and I didn't say it is. I said the alternative is not being able to predict the judge's decision expect for the fact that they're following precedent unofficially.
The judge in this case is Denise Cote.
They're important in the fact that they do immense damage to our economy, with perverse incentives and rent seeking everywhere.
There is little no evidence that IP improves innovation or even benefits creators as whole. There are instances like this all the time showing what a terrible system it is.
Copyright and patents shouldn't exist at all, and especially shouldn't in their current capacity.
Including but not limited to subscription services, exclusive showings, advertisements, serials, donations, and Patreon
A one-time funding model like sponsorship/grants and Kickstarter is fundamentally un-meritocratic. Money is given to promises of quality or broad appeal, not the actual attainment of it.
Patreon/subscription presupposes either a serial format or long-term commitment to producing many works. Attempting to use periodic small donations to fund a single long-form / high-labor work adds a burden on the creator to maintain a circus of “progress updates” and unrelated “rewards” to make the petty donorati feel adequately compensated for their “generosity”.
1. Creativity adapts to the environment available. The guy who whines "I can't make my artistic vision without the current licensing/copyright financing model to bankroll it" isn't that different from an artist in 1600 whining "I can't make my vision because CNC milling does not exist." If you want to tell a story, you'll find a way to make a go of it with the tools you have. Maybe you'll have to make a lower budget version, or come up with an installment format to make it viable-- sometimes it's the constraints that give creative works their charm.
2. Could we be missing out on entire new styles of expression because of copyright? Collaborative and evolutionary works, especially at scale, has always been touchy under a regime that requires attribution and ownership. Maybe the Great American Wiki replaces the Great American Novel. Voluntary open licensing doesn't actually help there-- compliance is still complex, expensive, and time consuming, even if it's done with a good intent.
As for crowdfunding, I'd say it's extremely meritocratic once bootstrapped. Once the system has been around for a while, it becomes clear who delivers.
Basically all the others require some sort of publisher exclusivity or friction on republishing that just doesn't exist today.
I also fear that ... trying to get exclusivity through restrictive contracts in the absence of copyright protection could be a cure worse than the disease.
Films get a majority of revenue from the box office. They could sell high-quality masters to streaming services, etc etc
> Basically all the others require some sort of publisher exclusivity or friction on republishing that just doesn't exist today.
One "friction" is convenience. People will pay to get a lot of art in one place, to get it in guaranteed high quality, and to get it quickly.
> trying to get exclusivity through restrictive contracts in the absence of copyright protection could be a cure worse than the disease.
Except the difference is that contracts only apply to those who agree to them. Copyright applies to everyone.
Which would no longer be protected from others obtaining copies of the film and showing it.
> They could sell high-quality masters to streaming services, etc etc
Which then can be legally streamed by anyone else immediately.
> People will pay to get a lot of art in one place, to get it in guaranteed high quality, and to get it quickly.
Yes, and anyone else can take this role of curation. Curation is cheap compared to creation. A 17 year old quality-compulsive downloader goes a lot of the way to having performed this function ;P
> Except the difference is that contracts only apply to those who agree to them.
Yah, so once someone breaches contract everyone downstream can have the content.
> Copyright applies to everyone.
This is a good thing.
We already live in a world where piracy is rampant, and yet rarely if ever are theater-quality copies of movies available. People have to record the movie with a camera to get it out there before the home video release.
Studios manage this by using proprietary formats and blacklisting theaters who fail to control their copies correctly. And theaters have a vested interest in those copies not getting out as well because that would cut into their revenue.
It does not at all depend on copyright protections for theater exclusive showings to exist.
> Which then can be legally streamed by anyone else immediately.
Yes but that relies on a competitor taking the time to rip their copy and upload it across all of their servers. That takes time so for live broadcasts like where an episode of Game of Thrones goes live and everyone wants to see it, they'll be behind the ball.
We already live in a world where you need merely search for and download the torrent to achieve the same thing you're saying will run rampant without copyright. This is already the way it works, but people still use streaming services because they're convenient and offer exclusive things they can't get elsewhere.
> Yes, and anyone else can take this role of curation. Curation is cheap compared to creation.
Wow you mean consumers won't have to buy ten different services to view what they want? That would be amazing!
> Yah, so once someone breaches contract everyone downstream can have the content.
Yes, just like our current world. Any contract with end users would be impossible to enforce just like copyright is now.
> This is a good thing.
What you're saying is that the fact that someone who has had no interaction with the creator, agreed to nothing with them, and caused them zero harm can be liable to the creator and even criminally liable is a good thing. Incredible.
If a party who got a copy illicitly could commercially distribute it in competition with theaters (i.e. someone who has profit motive) I think you'd have a lot more of this.
> Studios manage this by using proprietary formats and blacklisting theaters who fail to control their copies correctly. And theaters have a vested interest in those copies not getting out as well because that would cut into their revenue.
So you're effectively conceding that if we squash copyright, we'll have a whole lot more reliance on DRM and proprietary exclusion. I'm sorry, I think that's worse-- I'd rather give authors protection for their creations for a limited time (maybe 20 years + another 20 years with a steep renewal fee paid? or 20+10+10+10) than deal with that.
> Yes but that relies on a competitor taking the time to rip their copy and upload it across all of their servers. That takes time so for live broadcasts like where an episode of Game of Thrones goes live and everyone wants to see it, they'll be behind the ball.
I might have bought this argument in 1990, but what fraction of people watch content live anymore?
> This is already the way it works, but people still use streaming services because they're convenient and offer exclusive things they can't get elsewhere.
Sure, but I could curate a nice copy of everything on Disney+ for half as much if it wasn't legally prohibited.
> Wow you mean consumers won't have to buy ten different services to view what they want? That would be amazing!
So you are conceding that commercial services will no longer be viable in charging for content.
> Yes, just like our current world. Any contract with end users would be impossible to enforce just like copyright is now.
It nicely tamps down commercial infringement and the associated high-quality curation which would render monetization of content unviable.
> What you're saying is that the fact that someone who has had no interaction with the creator, agreed to nothing with them, and caused them zero harm can be liable to the creator and even criminally liable is a good thing. Incredible.
"Zero harm" is debatable, and it depends on your philosophical stance about this.
Note that criminal liability generally involves commercial infringement, too.
I believe that people should be able to profit from things they create. That's the idea with copyright: they're entitled to an exclusivity period in exchange for the work eventually belonging to society as a whole. It's the latter part where we've lost our way: terms are way too long.
For or the purposes of this article/case, I think we can just go by "this was trolling and trolling is bad" based on what the judge said & ruled. Not sure how interesting the "is trolling bad?" question is irl.
This guy is notorious for filing large numbers of cases. That doesn't mean they're meritless. He does this for many different clients, and those clients have their own businesses. It's not like he's buying up copyrights to sue or anything.
Effectively, he is. Whether it's buying, licensing or taking an option (what he actually is doing)... he's basically acquired the right to sue for money and keep the earnings. The troll business model is the same whether he's formally representing clients for a (presumably large) cut or buying up portfolios.
In this case, (1) get the right to sue for profit on photos. (2) Find an infringer or grey area (3) sue (4) Try to get a settlement smaller than likely damages.. because "it's cheaper and less scary than court."
Did you read the article? The precedent is only relevant because the defendant will incur $100k in legal fees to defend against likely damages of $1k, that he'd/she'd already agreed to settle.
This is literal trolling, bridge, big teeth and all. He doesn't care about the damages/rulings, all he cares about is causing enough legal costs to bully the defendant into a settlement.
2. "The precedent is only relevant because the defendant will incur $100k in legal fees to defend against likely damages of $1k, that he'd/she'd already agreed to settle."
If they believed damages were likely to only be 1k, they'd have taken the offer. Their calculation neglects statutory damages. https://www.lexology.com/library/detail.aspx?g=6f0de0d0-e0a7... is another case from the same lawyer where statutory damages of $2500 were awarded.
If you're entitled to $2500 (for argument's sake) and the other side makes a maximum offer of $1000, rejecting can be reasonable. And if you turn out to win less than $1000, sure, pay for the other side's fees.
See also https://www.plagiarismtoday.com/2018/04/12/what-is-a-copyrig...
Attempting to further pursue the case after a reasonable settlement was offered is an attempt to use the court extrajudicially as a means to be financially punitive. That is the reasoning behind part (d) of rule 68 as referenced in the article.
Also, it's up the client to accept any offer, not the lawyer.
Also, sure, the rejection alone may not imply that the offer was reasonable. However, the fact that this is apparently a common pattern of behavior, to the point that the judge (who has heard his cases and is familiar with his antics) decided to put their foot down, implies that the offer was reasonable and that Liebowitz is attempting to use the court for his own gain.
This is different from a patent troll where patents are subject to interpretation.
The point of the article is that the copyright infringement is a mouse to the trolling elephant.
The lawyer basically offers a risk free offer to clients en masse where if he finds someone to sue, you'll get a cut. He basically gets enforcement rights to a portfolio.
Then, he finds targets (who ideally did use someone's photo without paying for it) and threatens to drown them in legal costs. Settle big or we keep going. Now they're under legal attack, expensive and scary.
Then, it turns out that this massive trial generating >$100k in legal costs was over a stinking $1000 that the copyright owner/troll could have had months ago.
The judge thought this was abusive.
Where are you seeing that in the decision? If they thought it was abusive, they'd throw it out. Requiring a bond to be posted is not the same as finding it to be abusive.
"In April 2019 Leibowitz missed a court date in a copyright lawsuit. He told the court that he missed it due to the death of his grandfather. The court asked him to prove it, suspecting he was in fact missing hearings to run up legal costs for his opponent. As of November he has failed to do so, and is being fined $500 a day and threatened with incarceration.[6]"
> Failure to appear as directed will subject Mr. Liebowitz to arrest by the United States Marshals Service without further notice.
The way "trolling" generally works is by negotiating settlements while brandishing a credible threat of legal expenses, not judgements awarded by courts.
What this discourages is threatening a $100k lawsuit to win a $3,000 in damages. I guess once and offer (you could offer $10k, to be safe) the troll risks paying a lot of money if it goes to court and it turns out that he shot a legal mouse with a nuclear torpedo.
This case is about the defendant benefiting from unambiguous public information about the market value of the works, since the law provides them with some protection when they make a reasonable settlement offer but are forced to continue litigating instead.
If the eventual settlement is less than the original offer, then the plaintiff is liable for costs that occurred after the point the offer was made.
As far as copyright law goes, it seems almost sensible ...
The fact that it's based on public information puts the valuation's reasonableness on a very strong foundation, and allows the defendant to be far more confident that their offer will actually exceed a fully-litigated award.
But only if the original offer is reasonable. The basis of public information just makes it easier to support the claim that the offer is in fact reasonable.
I think that was Ireland in the 80s or 90s though, I'd "imagine" things are approached with a bit more rigor these days ...
Legally speaking this is no different than you selling copied DVDs on the street corner and Sony catching wind and coming after you for damages. They're not going to ask for $75 (five times a $15 disc), they're going to ask for statutory damages for each infringement you've made (potentially per song for a CD, etc).
This guy has just made a business out of monetizing that for clients who can't be bothered to do it for themselves. A true entrepreneur in the spirit of HN, find a niche that your clients don't want to do for themselves or are not capable of doing for themselves, and monetize it.
This is much less cut-and-dry than patent trolling, where the real problem is that the patents should never have been issued in the first place. He's representing real clients whose works have really been infringed, and by statute they are entitled to large damages. If you want to fix that, go after the concept of statutory copyright damages.
I love Democracy Now but if they want to use this guy's photos they should approach him for licensing, not just use them and cry about the damages when he or his lawyer comes after them.
We do not need to set up a two-track system where Disney gets $300k per infringement and a small photographer gets $500 per infringement.
Would make a lot of places think twice about touching any of your works.
Not saying Democracy now is in the right, but for 5x the original licensing fee? Take the money and case closed.
Who knows what he’s told or has not told this client.
https://www.youtube.com/watch?v=nKfSe7QSMOU
Failure to appear will immediately subject him to arrest by the US Marshals Service regardless of any other delay shenanigans by Liebowitz.
I only want to highlight the client may have very little to do with the case and what’s happened with it so far, as everything this lawyer has done is out of the bounds of the legal system. I don’t think the average person is equipped to deal with the impact of a lawyer who is themselves a criminal.
If this guys lawyer effectively said I think I can get you 25k instead of 2k they offered then it's on Mango if that decision is based on greed.
This apparently happens enough for there to be a cottage industry of lawyers going after big publishers who are ripping off small-time photographers. It seems like this whole thing needs serious reform, but probably not by going after people trying to get paid from a big org using their work.
DN did infringe, and when called on it, they immediately pulled the photo and offered 5 times the photographer's highest recorded fee charged per photo.
The photographer felt $1100 was insufficient, and took DN to court. (Apparently, based on the discovery requests, with an intent to rack up significant legal fees for DN.)
So yeah, I'd say the photographer is the bad guy. Or has bad lawyers. Maybe $1000 for a $200 photo isn't enough, but it's probably the sort of thing that could be negotiated reasonably rather than heading straight to court.
What was the context that DN used this image?
Do news agencies have to pay royalties on pictures which are 'adversarial'? ex. Trudeau in blackface? Seems like there are a class of images which society benefits from having them be free and not subject to intellectual property restrictions.
Seems like capping royalties as a proportion of revenue earned by ads on that broadcast would be a sensible method of addressing this.
I can't quickly find details about the context of the photo's use. They might be out there, but if so they seem buried in legal briefs, from what I can tell. My ability to read such dense documents isn't great, unfortunately. I get too bored with it. Similarly, I'm not super knowledgeable of all the ins and outs of fair use (which I believe is what you were alluding to), but it seems fairly nuanced and does not seem to give news organizations a blanket exemption.
The time to reasonably negotiate fees is before you post the guy's professional work, not afterwards.
Will be interesting to see how this goes.
The last time frivolous lawsuits were getting a lot of journalistic attention I would joke to my friends that if I ever became a judge I'd cite people for contempt of court for bringing in bullshit cases. I'd easily set a record for number of citations.
What to do. What to do.
Peertube has a chance to be a serious become Youtube competitor only if there is way to add ads to videos.
Also a way to have donations a-la patreon would be great.