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Comment by jermaustin1 | Hacker News Reader

Copyright trolling cost me a fairly successful blog my wife ran. The ads paid out more than hosting cost! She had shared an image from a girl who took the photo with permission, but then that girl sold the photo to a copyright troll who then sent a demand letter. Either pay a yearly license of $1750 and a back-pay for the 4 years it had been hosted, or get sued. I retained a lawyer to prepare for lawsuit because we were given permission by the author to use the photo, had email proof. But after a few months of back and forth, we ran out of money to keep fighting and had the lawyer negotiate just killing the site.

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Atrocious that such a trivial case cost you so much money that you actually lost (not strictly, but it must've felt like a loss).

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.

Perhaps naive… but in a case where it is so plain that there is no case to answer, what is the rationale behind hiring lawyers rather than simply filing court documents yourself if they _do_ sue? The copyright troll was looking to make money: shutting down your site didn’t do anything for them — it was likely just a negotiating tactic that went awry when you called their bluff (actually shut down the site).

The fact that we ask this question leads us to asking, “Who is the best person to answer the question of whether it’s a good idea to file the documents yourself, and if so, how things are likely to go over the next ___ years of litigation?”

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.

IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you.

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.

> IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you.

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.

This is true of basically all professional services that you hire.

A velvet glove around what you just said is that it’s like you are a product owner, and the lawyer is a pure engineer.

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.

If parent was incorporated and the corporation was sued they cannot defend the corporation without a lawyer. They can defend themselves as individuals without a lawyer if sued individually.

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!"

I'm curious what the rationale is for the corporation. Why can't a ceo represent his own company?

I imagine the theory is unless the CEO owns 100% percent of his company it's not his company. He's engaged in unauthorized practice of law and screwing over his investors since he has no idea how to practice law. There's also the fact that lawyers have background checks before getting a law license, and if a CEO could practice law without a license it would potentially be a big loophole for fraudsters and other known criminals who commit fraud to be able to practice law.

Even if the CEO owns 100% of the corporation, it's still a separate entity. That's one of the benefits of incorporating - when someone sues the corporation, they can go after its assets, but not the CEO's.

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.

Sending back a letter on a lawyer's letterhead is also a negotiating tactic. It's probably what I'd have done as well. Emailing back from joe_blow_blog_157@gmail doesn't send the same signal as "deal with my lawyer; we think we're right; what's your next move?"

Federal civil courts aren't a small claims court. The rules aren't easily understood and are full of pitfalls that trip up even experienced litigators. Your answer to a complaint needs to address every single allegation AND raise all affirmative defenses--or they could be waived.

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.

Patent law was designed for giant companies to stop other giant companies from using their stuff.

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.

Patent law has evolved into that - but it was designed for independent creators to stand up to giant corporations that want to steal their stuff.

It is terrible as it exists today but some form of device patenting needs to exist.

because (IIRC) if you win and you get a SLAPP judgement against your harasser, then you be awarded a penalty. Depends on jurisdiction, of course. Possibly not in federal.

In a reasonable world, shouldn't the copyright troll be suing the girl instead? Presumably she sold the troll an exclusive license (otherwise the copyright troll wouldn't be interested in obtaining the license) which she must have lied about because she had already licensed the photo to your wife.

well i think the defense lawyer was a bit disingenuous. I guess the only step should have been to confirm the agreement with the girl, forward it to troll and then tell them you have a license so get lost or see you in court. But it looks like they didn't go to court at all...

My understanding is that the troll would love to take it to court and keep it there until you can't afford to fight anymore.

Court costs trolls too. They don't want things in court. They want you to settle.

Trolls adore it when people settle out of court - but the cost of occasionally bankrupting people to scare everyone else into compliance tends to be accepted.

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.

If your defence is straightforward, then turning up in court and defending yourself is still a cheap option, is it not?

Without hiring a lawyer, how can you know if your defence is straightforward or not?

You can hire a lawyer just to give you advice. You don’t have to retain the lawyer for the case. In a lot of cases retaining a lawyer only ends up costing 10-15 hours of their time and if you’re going to court anyways add there fees to your court costs in the counter suit.

IIRC, so long as you made a settlement offer early on in the process for some low value, from that point onwards if the case eventually gets decided in the defendant's favor or even if it doesn't but the judgement awarded is less favorable than the settlement offer, then the plaintiff is liable for any legal fees after the settlement. There have been plaintiffs that won in court, were awarded a judgement, but wound up having to pay more to the defendant than what the judgement was even for. It's a rule 68 offer of judgment that triggers this fee shifting and is meant to disincentivize pointless litigation after a reasonable settlement offer has been made.

Interesting... I've never heard of this and none of our lawyers in frivolous lawsuits have brought it up. (Although none of the cases have gone to trial...)

It would only apply in federal court, there are nuances surrounding the fact that the offer must have been unilaterally better than the actual judgement (i.e. if the offer came with an NDA attached, the judgement probably wouldn't). Here's a great video going over a case where this happened. https://www.youtube.com/watch?v=KSs5bQGxpas

What would happen if you had removed the photo but continued to run the site, without using the photo. Then the only issue is the "back-pay". Seems like their argument for "back-pay" is weak if you were previously under a good faith belief that you had permission to use the photo.

I have been in this situation. If you have this level of evidence, you absolutely do not need a lawyer. Let me guess, BWP Media?

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.

Counter-party risk. 9/10 times you won't get the money back from the girl.

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.

Let me guess: Getty Images?

I cannot disclose who, but it wasn’t Getty or any of the big names.

Those kinds of non-disclosure agreements should be illegal. Not just unenforceable, but illegal, with penalties for those that draft them. The public has a right to know the abuse carried out in the name of its legal system.

I disagree - that fact that a settlement doesn't deem either party at fault is one of the big appeals. Making settlement negotiations necessarily public will remove that benefit in most cases.

If the facts are really so clear-cut, it sounds like your lawyer did not do a great job.

My entire instruction was to do everything to avoid court. I didn’t want to get tied up in court.

If you have a license to the photograph, why not just send proof of that to the troll and threaten them with Rule 11 sanctions if they sue you? I have to think anybody with a brain would just drop it at that point.

Our “license” was the “photographer“ replying to an email saying it could be posted on our blog. It was just a cellphone photo of Robert Pattinson in nyc. Troll wouldn’t even let me remove the post. Eventually they just took the loss and let me kill the site.

What is a license except permission? They usually use fancy language, but that email might well have been plenty.

I’d let them sue me and seek attorneys fees.

So now you’ve gone from a claim for a few thousand to something where it’s going to cost you tens of thousands up front for court time _plus_ you have a chance of the judgement going against you despite the “permission” and now you’re on the hook for the original few thousand, _possibly_ the attorney fees of the troll, and _possibly_ some punitive judgement on top of it because you fought the “reasonable offer”.

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.

Either there are facts not accurately recounted above, or the attorney did a shitty job. It’s as simple as that.

If they are anything like the litigious people I've dealt with, they won't back down. It doesn't matter if you have a clear-cut path to victory through the courts... they will still proceed, usually hoping for a settlement or some sort of insurance coverage.

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.

I know there's a lot of backseat lawyering going on in this thread but you probably took precisely the right action. Patent trolls have war chests to weather the occasional lawsuit and it's likely they could've outspent you on appeals.

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.

Killing an entire site because of one photo?

It was too much work to fight and they wouldn’t accept removing only the offending post. I’m sure if I wanted to go to court I would have won but at what cost?

Why couldn’t the photo just be replaced with another?

Troll wouldn’t even let me remove the post. Eventually they just took the loss after months (a year?) and let me kill the site.

This is rather unusual; looks almost like a hit job by someone who was pissed by another post on the blog but didn't want to reveal their identity...

> Troll wouldn’t even let me remove the post. Eventually they just took the loss after months (a year?) and let me kill the site.

What do you mean, "let you"? They hadn't somehow magically gained technical and administrative access to your blog, had they?

Could you "transfer" the blog to another entity registered overseas to make it really expensive for troll to pursue?

There must be other approaches not to win but make it very expensive for troll to proceed.

Ignore, ignore, ignore the trolls. You had a license from the original photographer, so you have no legal reason to respond. If they file a lawsuit that has a court date, retain a lawyer, and prepare a counter suit. All you have to do is show that email in court and it’s done. You can’t retroactively change someone’s license. That original license is still valid for your usage.

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