Patent Trolling’s twin: Copyright trolling
austinmeyer.com
austinmeyer.com
My dad is currently suing has past employer (the state). It's taken two years so far and they try to screw him over in whatever way possible. Luckily the union is paying for his lawyer, so he doesn't really care.
As someone in his early twenties who knows very little about law, the way such cases go down is mind-blowing to me.
And the answer is... A LAWYER EXPERIENCED IN COPYRIGHT AND INTELLECTUAL PROPERTY LITIGATION.
That answers your question for me. In cases roughly similar to this, I have begun with a lawyer. Yes, there are two times I recall where they said, “Do it yourself, but watch out for X or Y, and call me back if Z.” That alone justified what I was paying for the first proper, clock is ticking, consultation.
What happens after the first consultation would depend upon the case.
INAL, YMMV, &c.
When hiring one of the best attorneys to defend the type of action brought I had to be very clear about what they were to do in between our calls (ask the third party to agree to drop it if we get plaintiff to drop it, ask plaintiff these questions, if they don’t do X we will do Y, offer them Z).
It was also important to stop them from taking pointless actions that would have cost tons of hours: do not read the discovery (hundreds of pages of details that wouldn’t change things), do not read the third party’s ToS looking for a loophole (another ~50 pages) as the company likely had already spent hundreds of thousands writing it and millions testing it in court.
We would have done those things if necessary but they didn’t need to be done simultaneously and the settlement attempts paid off immediately. It was not an IP case and I don’t think it had merit, but it would have likely cost at least a little more (or possibly much, much more) just to find out and I wasn’t interested in finding out. It was not a scenario where some floodgates could be opened if we settled.
Wow. So now you almost certainly have to have a lawyer because of byzantine 'tested' language and you have to nanny them to avoid getting soaked for billable hours!?
It feels like such a racket.
They are the expert in implementing the business outcomes you want, but you and only you know all the context required to take the tradeoffs your lawyer articulates, and decide which tradeoffs to make.
Of course the copyright troll may never have sued. But your lawyer will happily charge an hourly rate to repeatedly write letters saying "If you sue us we will win!"
But that means the corporation gets treated like a separate person. And just like you can't represent your friend in court (unless you're a lawyer), you also can't represent your corporation.
You are pretty likely to foot fault and end up just putting yourself in a worse negotiating position.
Trolls already have pre-made complaints, discovery requests, etc. already lined up. You'll have to work a long time to do what they can in a couple hours.
Nobody could really "publish" things on their own.
And the fact that it's overbearing for normal people is now a feature rather than a bug.
It is terrible as it exists today but some form of device patenting needs to exist.
Bear in mind that a lot of times the patent troll either has a practicing lawyer on staff or has an intimate relation with one - so they're considering the cost of labour rather than the market rate.
The minute they try to get a court to take the case, it'll get knocked out. (They know this by the way.)
Now let's say this isn't the full story and little girly sold the picture to you after having given the rights to the copyright troll...
...then you take the hit and take the girl to small claims court.
You're right about the case getting tossed in most circumstances but you can suss that out by asking for proof of when they bought the copyright from the girl and checking the effective date.
I’d let them sue me and seek attorneys fees.
My wife has published some books. We have a contract _licence_ written out for the art we _bought_ the use of for the book covers. The licence wouldn’t be a perfect defence if something happened like this, but it is something stronger than an email permission.
Unless you have an attorney on staff/retainer, it is a war of attrition and they always win. Better to stop the bleeding ASAP and just end it, even if that is a bitter pill to swallow.
There are many people two decades into civil suits that have experienced a level of pain you thankfully dodged. It is really regretful that the troll forced a full site take down but the legal system can be a harsh mistress - at least you're not penniless.
What do you mean, "let you"? They hadn't somehow magically gained technical and administrative access to your blog, had they?
There must be other approaches not to win but make it very expensive for troll to proceed.
At the time I thought it was kind of a stunt and was a neat idea but not addressing a real problem with music copyright and real lawsuits. It looks like I might be totally wrong, because that’s exactly what Design Basics is doing. :/
It was built with an intention to invalidate 3D printing patents that cover broad elements and general materials and ideas, on the grounds of obviousness.
[0] https://www.sciencedirect.com/science/article/abs/pii/S01722...
I got whatever degree of nastygram that isn't a "strike" from YouTube once for a video of me singing a 150 year-old folk song from my own arrangement. Someone claimed to have copyright. I didn't fight it in earnest, but if I had a monetized account that I was depending on financially, I might have had to -- and of course, you pursue that at the hazard of losing your channel and Google account.
Got a C&D once for a text graphics Whac-a-mole clone in Basic when I was a teenager. Kinda soured me on everything related to IP rights going forward.
https://commons.wikimedia.org/wiki/Commons:Undeletion_reques...
From the link (which can be hard to grok for people like me who are unfamiliar with Wikipedia processes), it looks like there are users who upload images and mark them with a free license and then try to sue people who re-use the photos on other sites for minor infractions of the license terms.
It seems that while the images may legitimately be licensed as Creative Commons, the user takes a very strict view of the CC licensing and sues people for minor infractions. "re-users have complained about receiving costly cease and desist orders on behalf of this Flickr-user for minor infractions of the licensing terms." (https://commons.wikimedia.org/w/index.php?title=Commons:Admi...) Because the CC license's attribution requirements can often be a bit hazy or difficult to comply with, it makes it easy for someone to claim that the copyright has been infringed for "minor" infractions.
You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.
That's some of the guidance from the CC license page. It would be easy for someone to re-size the image and not indicate that changes were made, not include the title of the work, etc. There are whole pages about how you should attribute things depending on what information is available: https://wiki.creativecommons.org/wiki/License_Versions#Detai...
https://en.wikipedia.org/wiki/Main_Page#/media/File:Ryan_Cro...
I'm literally looking at the featured photo from the "In the News" section of English Wikipedia right now. It has an attribution source of http://agenciabrasil.ebc.com.br/rio-2016/foto/2016-08/noite-..., but that page doesn't exist when I try to view it.
Looking at the "more details" page, it gets confusing. What is the "title"? Do I have to duplicate author information if it's in the title? Given that the photo, "has been extracted from another file," I guess I'd have to cite both the original and the derived work if I were to re-use it.
Based on the attribution comparison chart, I think I'd have to write something like:
"This work, 'Ryan Crouser in 2016' (https://commons.wikimedia.org/wiki/File:Ryan_Crouser_Rio_201...) by Materialscientist (https://commons.wikimedia.org/wiki/User:Materialscientist) and licensed under CC-BY 3.0 BR (https://creativecommons.org/licenses/by/3.0/br/deed.en), is a cropped version of 'Rio de Janeiro - Norte-americano Ryan Crouser bate recorde olímpico e leva ouro no arremesso de peso nos Jogos Rio 2016, no Estádio Olímpico. (Fernando Frazão/Agência Brasil)' (http://agenciabrasil.ebc.com.br/rio-2016/foto/2016-08/noite-...) by Repórter Fotográfico, Fernando Frazão/Agência Brasil used under CC-BY 3.0 BR (https://creativecommons.org/licenses/by/3.0/br/deed.pt)."
What if I just casually grabbed the photo and linked to the Wikipedia page? I think most Wikipedia people would be like "eh, close enough". I think some might send me an email being like, "Could you please put my name next to the link? Thanks!"
Oops, actually, my attribution is wrong! I haven't put in the copyright notice which is, "EBC-EMPRESA BRASIL DE COMUNICAÇÃO/Agência Brasil. Uso sob a Licença Creative Commons Atribuição 3.0 Brasil. CRÉDITO FOTOGRÁFICO OBRIGATÓRIO: FERNANDO FRAZÃO/AGÊNCIA BRASIL"
Let me correct that:
"This work, 'Ryan Crouser in 2016' (https://commons.wikimedia.org/wiki/File:Ryan_Crouser_Rio_201...) by Materialscientist (https://commons.wikimedia.org/wiki/User:Materialscientist) and licensed under CC-BY 3.0 BR (https://creativecommons.org/licenses/by/3.0/br/deed.en), is a cropped version of 'Rio de Janeiro - Norte-americano Ryan Crouser bate recorde olímpico e leva ouro no arremesso de peso nos Jogos Rio 2016, no Estádio Olímpico. (Fernando Frazão/Agência Brasil)' (http://agenciabrasil.ebc.com.br/rio-2016/foto/2016-08/noite-...) by Repórter Fotográfico, Fernando Frazão/Agência Brasil used under CC-BY 3.0 BR (https://creativecommons.org/licenses/by/3.0/br/deed.pt) with the copyright notice, 'EBC-EMPRESA BRASIL DE COMUNICAÇÃO/Agência Brasil. Uso sob a Licença Creative Commons Atribuição 3.0 Brasil. CRÉDITO FOTOGRÁFICO OBRIGATÓRIO: FERNANDO FRAZÃO/AGÊNCIA BRASIL'."
DONE! Wait... the copyright notice specifies, "FOTOGRÁFICO OBRIGATÓRIO: FERNANDO FRAZÃO/AGÊNCIA BRASIL", but the "author" is listed as "Repórter Fotográfico, Fernando Frazão/Agência Brasil". Do I go with the author as specified in the image or with how the CRÉDITO specifies it? I'd think I should go with how the CRÉDITO specifies it, but I definitely didn't see that initially.
For those that think I'm being pedantic, I am. However, as one person noted: As not all of you may know, the copyright law of Germany and Austria allows the copyright-holder to issue a so-called Abmahnung (sort of Cease and desist) against anyone who in his opinion infringes his copyright, without first calling a court. The typical cost of an Abmahnung is between 500 and 1200 Euros for 1 image. As no court is involved, there is no independant evaluation of the case. Many people pay the amount requested in order to avoid going to court, as this might be even more costly. IANAL. (https://commons.wikimedia.org/w/index.php?title=Commons:Admi...)
I understand that maybe you could fight it and win in court. However, the complexity of the attribution requirements do allow a bad actor to be evil to people while claiming to be legitimate. Given that users have been complaining that this is actually happening, it's somewhat worrying.
I'm not trying to sound negative about anything other than the fact that it's easy for trolls to "well technically" people. If I used the cropped Wikipedia photo and didn't note the modification, but did properly attribute the title, author, and original URI (which seems to be a dead link), am I using it wrong? Well technically I would be since it was modified and I didn't note that (and didn't provide credit to the modifier). It would be an easy mistake to make: grab the author, title, and URI from the Wikipedia page and I think I'm done! I think most courts and the CC folks would be like, "c'mon, they put in a good faith effort and yes they need to correct it, but they shouldn't be subject to thousands of dollars in penalties!" However, courts aren't cheap and there's a lot of risk.
Furthermore, no one--including CC--understands what non-commercial means. (There were protracted discussions on this before CC 4.0 and CC basically punted.) For everyone who says it's fine so long as you don't actually sell the photo, there will be others who say you can't use it even on a little blog that runs ads. And everything in between.
She was lucky in that the request came from the actual photographer, so she was able to negotiate a “fair” settlement of about 400€ IIRC, this was over 10 years ago.
Thing is though, she at least understood she was in the wrong. Try explaining to the average Instagram celebrity that every single post is in fact a copy and you don’t automatically have permission to copy something just because you saw it on the internet. I guess Facebook’s legal department just bats that stuff away or something.
I'm much more careful about which images I use since then, and made a habit of releasing my own images with a CC0 licence.
Edit: I should add that this should not be used to punish the plaintiff if they lose (or punish them very little), because that would imperil legitimate lawsuits. If you had a valid case, would you dare sue a multinational, if you knew losing the pre-trial meant having to pay their overpriced team of lawyers*?
*As an aside, the defendant should only be allowed the use of the free, public defender in the pre-trial, otherwise this pre-trial would be treated as just another full trial, with all the expense that entails.
This is the equivalent of taking photographs of thousands of vehicles in existence, then claiming intellectual property over their design. Nonsense.
If there were free resources online on how to fight these cases in court, with information for both defendants and their representatives, is there any chance of making it fast and cheap enough that it won't be worth the troll's time?
So Design Basics is either stealing their designs from elsewhere, or as the article points out, their designs are so generic they end up matching existing designs.
That is, say there is a plan on their site for a 2BD/2BA house, the floor plan is very simple and a builder that is unaware of this company ends up copying the floor plan for no other reason that it happens to be a very common floorplan. Could this company still pursue damages?
When we think of copyright we often think of companies like Google copyrighting the word "Google". Now you can't go out and use "Google" in your own work, it's pretty dang obvious. But what if Google copyrighted the "Google Grilled Cheese Sandwich" which is just a regular grilled cheese sandwich, could they really go after folks who just happened to make the exact same grilled cheese sandwich just because making one is pretty obvious.
That's trademark.
Copyright is for a creative work of some kind.
> But what if Google copyrighted the "Google Grilled Cheese Sandwich" which is just a regular grilled cheese sandwich...
...and this sounds like you're referring to patent protection, which is for an invention.
You can't have a copyright on a word. You're thinking of another category of intellectual property, trademark. Google has a trademark for the word "Google" but trademarks are for specific uses of words related to the business. The intent of trademark law is a form of consumer protection, you can't fool the public that your product or service is offered by the trademark holder by using the trademarked term.
Google can't copyright "Google". That's not how it works. Google would apply for trademark protection on the wordmark, Google in relation to search and/or advertising. The USPTO has all the details if you can handle searching their site (it's a bit of a mess).
And pretty sure independent creation is a valid thing. Is how the initial pc clone industry got its start.
I think the commenter gets it, Christ for the fifth time now yes, there's a difference between copyright and trademark. You can't copyright a word, got it. Now that we have that bit of pedantry thoroughly out of the way, I have the exact same question as the one above:
>That is, say there is a plan on their site for a 2BD/2BA house, the floor plan is very simple and a builder that is unaware of this company ends up copying the floor plan for no other reason that it happens to be a very common floorplan. Could this company still pursue damages?
The floor plan is probably subject to patents. I don't think anyone has done this, but I don't see why it isn't possible.
>Now, with these simple, vague floor-plans (not full architectural drawings!) out there for everyone to see… they look for someone to actually build a house that has a similar layout, and then jump in with the lawsuit!
Are they just hoping every builder will settle out of court?
Every case where someone with pockets deep enough, holds out and gets a judgment against the troll - especially with legal costs included - is a huge blow to their business. And a single case that doesn't go their way is often enough to shut down their business and poof.
Hope one of Design Basics's defendants is in a position to say Enough!
No. The ruling in this case actually covers this in detail: Proving copyright infringement is a two-step process, first you must prove that something was actually copied and then that the copied portion was substantial enough to constitute infringement. But the first part is a necessary precondition, without copying there's no infringement. They give the example of two comic book authors inventing a character called "Dennis the Menace" independently on the same day.
No, but you're on the right track.
Copyright covers copying, if you didn't copy and can prove it then that's an absolute defence (see eg WIPO PROOF).
Copyright being a tort, the usual measure of proof is 'balance of probabilities'. That means if you didn't copy, but you _cannot_ prove you didn't, and it looks like you probably did, then a court can find against you.
There is also the notion of distinctiveness, generic, non-creative things don't acquire copyright ("common elements"; trademark has similar aspects, it's hard to word things without confusing the two, they're differently concepts with the same names).
However, in 2012 there was a case in UK law over an image of a London bus, where a re-creation of the image was used commercially. The copyright in the original photo was considered to be infringed despite the image being highly generic (Temple Island V New English Teas, 2012). A lot of people, myself included, are not convinced of this decision (see also Kenrick V Lawrence).
USC and UK law differ, but as copyright is based on international treaties such as Berne Convention and TRIPS you find they're broadly analogous in a lot of ways; I can't comment on where the line lies in USA law.
This is my personal opinion, unrelated to my employment; this is not legal advice.
Hm... Maybe someone ought to go through all industries, check whether they rely on common and semi-obvious "intellectual property" like this, and start algorithmically generating and publishing all combinations.
But who? I don't think I'm up to it on my own... The EFF or some body like that?
Is your cousin's name by any chance Vincent?
The way I see it now, the system is setup to favor the patent and copyright troll because the system assumes the holder being genuine. A lot of trolls are in Texas. Texas local and state laws heavily favor these trolls.
Patent duration should be shortened to 10 years or less. Copyright duration should be shortened to 5 years or less.
The digital age is moving faster than the people who wrote these laws anticipated.