The wicked deeds of the infamous copyright troll have been cited among the excuses to reject many proposed improvements for copyright enforcement in the digital age. For anyone unfamiliar with the term, copyright trolls (and their cousins the patent trolls), are the ambulance-chasers of IP law. They file often dubious copyright claims with the sole purpose of frightening settlements out of respondents. They work on volume (more claims filed equals more settlements), and the claims themselves will often lack merit outright, or they will fail to follow proper civil procedure.
Enter Richard Liebowitz, a notorious copyright troll, who has been sanctioned multiple times by multiple courts for his conduct and was recently smacked down in very strident terms—first by the Southern District of Illinois and then by the Southern District of New York, on May 7th and 8th respectively. In both cases, both involving claims by photographers, it was Liebowitz’s blatant disregard for civil procedure that raised the hackles of Judges Rosenstengel (Illinois), and Caproni (New York), and the two provided plenty of Twitter material for law hawks to share.
Judge Rosenstengel, in the case Ward v. Consequence, sanctioned Liebowitz for “vexatious and bad faith practice,” referring to him as exemplary of the “worst kind of lawyering.” Judge Caproni of New York, in Chevrestt v. Barstool Sports, also imposed sanctions after expressing her disdain for his recidivist conduct, stating, “Mr. Liebowitz has ‘earned the distinction of being a regular target of sanction-related motions and orders,’ and ‘it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone.'”
So, ouch. But these opinions, and primarily the opinion in Ward, reveal why the small claim proposal known as the CASE Act is so essential for independent creators in the digital age—and why it is technically absurd that anyone would argue that the Copyright Claims Board (CCB) would be a venue of opportunity for copyright trolls. First, Judge Rosenstengel is unequivocal in describing how Liebowitz’s trolling is just as toxic to the plaintiff as it may be to a respondent …
“It is a simple matter for the Court to conclude that Liebowitz’s conduct in this case has been irresponsible, unreasonable, and detrimental to the fair administration of justice, harming both Consequence, the Court, and even his own client, who has lost his opportunity to advance what appears to have been a meritorious claim.”
Then, because the claim was likely meritorious, she later explains her rationale for restoring only a portion of Consequence’s legal fees pursuant to Liebowitz’s misconduct, admonishing the respondent thus:
“The Court hopes that Consequence’s remaining uncompensated financial expenditure and the experience of wrangling with legal lampreys such as Liebowitz will serve to ensure that Consequence in the future exercises the merest modicum of caution necessary to avoid misusing the intellectual property of others.”
But it is the following comments from the judge’s discussion that truly sum up the problem faced by so many creators today, and also point to the need for the small-claim alterative called for in the CASE Act …
“Misuse of intellectual property has become a pervasive problem in the internet era and one that is especially pernicious for freelance photographers like Ward, who often lack the resources to pursue claims in court against organizations like Consequence, knowing that even if successful they may receive mere token payments of a few hundred dollars for their work, far less than their legal fees. Aggressive plaintiffs’ attorneys such as Liebowitz, then, can be said to represent the fetid backwash of online media providers’ own persistent and willful disregard for intellectual property norms, and the Court is not overly sympathetic to Consequence’s plea to be made whole.” [Emphasis added]
Arguments for passing the CASE Act can be found in these opinions, along with one very strong counterargument against the implications made by anti-copyright activists that the small-claim CCB would provide a rich hunting ground for copyright trolls. To the contrary, the CASE Act just might be a copyright troll destroyer.
As I opined regarding the Brammer case, Ward presents a scenario in which both parties would likely have come to a much easier and less costly resolution if a small-claim option had existed. Consequence admitted its wrongful use of Jesse Ward’s photograph and would, therefore, likely have been willing to voluntarily submit to the cheaper and less burdensome small-claim tribunal. (As it is, Consequence paid its attorney and Ward got nothing.) I cannot say the same about photographer Angel Chevrestt and Barstool, as the latter seems to have at least some record for “persistent and willful disregard for intellectual property norms,” but less hassle is less hassle for any party.
The opinions written by both judges in these cases provide a glimpse into the troll business model, which appears to depend on certain elements that would be unavailable via the CCB. As mentioned, the troll relies on volume. Point enough $150,000 (statutory damage award) guns at enough targets, and the troll will frighten at least a percentage of those targets to settle claims for several thousand dollars, long before they might ever pay a lawyer to discover whether the claim has merit, or might otherwise fail for the kind of procedural sloppiness alluded to in both of these cases.
This shotgun approach to litigation would be very difficult in the more constrained environment of the CCB than it is in Article III courts. Unlike the court system, the CCB is a single venue, which has a statutory responsibility to flag repeated claims (even valid claims) filed by any one party, and it has the discretion to limit the number of claims filed by any single party. The CCB is also authorized to ban any party for filing one unmeritorious claim and, as a consequence, throw out all other claims filed by that party.
The CCB may fine a party $5,000 for abuse of the system and/or bar them from filing with the board for up to one year. Add to all that the fact that the small-claim tribunal is voluntary, plus the fact that the lion’s share of the substantially lower damage awards should go to the clients, and the CCB begins to look like a money-losing proposition by the time the troll does the math. In fact, it was designed that way because, contrary to many opinions out there, copyright advocates don’t like trolls either.
Finally, and perhaps most intriguingly, because the CCB is an alternative dispute resolution forum designed to be used with or without counsel, its availability would leave both complainants and respondents far less susceptible to unwittingly engaging troll attorneys, as seems to be the case in Ward. So, oddly enough, in addition to the intrinsic mechanisms in CASE that were specifically written as anti-troll provisions, the very existence of the CCB could, over time, shrink the market of desperate creators who may inadvertently become the clients of “legal lampreys.” If we, therefore, take a much broader view, not only would the CCB be a poor environment for the troll to ply his dark arts, but the availability of a small-claim option may eventually put a lot of trolls out of business, while still providing work for conscientious attorneys to assist with small claims where that assistance is desired.
Troll image by: Kaselmeyk
© 2020, David Newhoff. All rights reserved.