Guest Post: Open Season on Copyright Infringement Claims? All Hail, or Hate, the “Troll”?

By Robert W. Zelnick, McDermott Will & Emery LLP

Is it me, or has there been a noticeable uptick in publicity about copyright infringement claims in 2010? There is the prolific new so-called "copyright troll," Righthaven LLC, which has sued more than 120 parties on behalf of its sole newspaper client, the Las Vegas Journal-Review (including against some high-profile defendants, such as politician Sharron Angle). The Fox network has been defending against claims that it violated a plaintiff's copyright when it ran footage of Bernard Madoff, and now the Fox network (in an unrelated claim) is suing politician Robin Carnahan for alleged unauthorized use of Fox clip in a political ad. Some blame the poor economy, some blame the lawyers, some blame a heated election season. Maybe it is all of those reasons, or none of those. But at the end of the day, it doesn't appear that anything has really changed in the substantive copyright law.

Although the nuances of copyright law can be sometimes challenging to understand and interpret, at its heart copyright law stands for a relatively simple proposition – don't copy. The copyright laws are not an act of "judicial activism" to codify a common-sense grammar school lesson. Instead, these laws find their basis in the U.S. Constitution: Article I authorizes Congress to "Promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Some of the comments in the blogosphere – including some rather nasty and ad hominem attacks against the "copyright troll of 2010" Righthaven LLC – seem to overlook that the easiest way to avoid copyright infringement claims is to avoid copying.

So, why all the angst related to enforcement of IP laws, now particularly centering on the concept of a copyright troll? In part, there are some of the same criticisms that have long been aimed at so-called "patent trolls": opportunistic lawyers, recoveries that are disproportionate to the "sweat of the brow" of the actual inventor/author, a drag on corporate profitability, etc. However, there are significant differences between a so-called patent troll and a so-called copyright troll.

First, the stakes and business model so far for the copyright cases seem to be quite different from the patent model. Righthaven's model, at least so far, has seemed to be a high-volume of cases that often individually settle in the range of a few thousand dollars.

Second, the policy issues are different. Revenue problems have cause newspapers to disappear at an alarming rate, and copyright revenue gives troubled businesses a new revenue stream from an existing asset. On the other hand, even those bloggers who infringe a copyright are usually creating knowledge, and there may be other counterconsiderations.

Third, some forms of clearinghouse model for copyright licensing/enforcement have existed for decades. For example, ASCAP, BMI, Copyright Clearance Center and others have generated revenue for themselves and for copyright owners by pursuing users of copyrighted works.

Fourth, it seems that courts may have a significant role in influencing policy when it comes to so-called "copyright trolls." For example, the courts have latitude in setting statutory damages in copyright cases within a wide range spanning $200 to $300,000; the exercise of that discretion can directly affect whether a so-called troll's business model will be profitable.

Most of all, though, parties being sued by Righthaven seem to feel a sort of "gotcha" moment. Sure, these defendants saw the copyright notices on the newspapers and websites whose content they allegedly copied, and they knew at some level that copying often has some element of "wrong" to it. But perhaps they figured that there was a safe harbor in doing what everyone else seemed to be doing. Compare the rumored – and often very dangerous – "rules of thumb" about things like the percent of content that can "safely" be copied, the supposed "free pass" that comes from a direct link to the original (copyrighted) article, the breadth of applicability of the fair use defense, and so on.

Perhaps the one aspect of the Righthaven model that many defendants feel most indignant about is that they were sued before receiving a cease-and-desist demand. As another example of the many disconnects between expectations and reality in IP enforcement, a demand letter is not a prerequisite to a complaint. There is no guaranteed "free bite at the apple" when it comes to infringement, and for good reason. Indeed, what would be the value of opinion counsel in the IP arena if the ultimate outcome were that liability only starts to accrue after a party elects to continue infringement after being actually warned of potential claims? Cease-and-desist demands have a place in certain infringement scenarios; however, they are sometimes a waste of time and money, and there is a strong deterrent to infringement when a defendant cannot escape liability for past acts simply by ceasing accused conduct when directly asked by the IP owner. Righthaven has apparently decided that such warning letters do not fit into its business model, which seems to be its prerogative.

The other major factor that contributes to the sense of "gotcha" is undeniably the role of the internet, email and related technologies. In short, acts of infringement can be publicized to the world at the speed of light, via a few keystrokes. Infringement over the internet is also much easier to identify, via increasingly-sophisticated searching and tracking technologies. It comes as no surprise that Righthaven reportedly uses a proprietary technology to identify suspected infringements before offering to buy the underlying copyrights from the copyright owner.

It will be interesting to see whether the Righthaven model, or some other models of so-called "copyright troll," will be sustainable. So far, to my knowledge, none of the 120+ Righthaven defendants has litigated what appear in some cases to be potentially valid "fair use" theories. Indeed, so far, Righthaven reportedly has been willing to settle individual cases for a few thousand dollars, which is far less than it would typically cost a defendant to secure copyright counsel and answer a federal complaint (both without any guarantee of success). I have heard rumblings that some defendants are pursuing discussions to form a defense coalition of sorts, to share costs and to combine expertise and effort. I will be curious to see how Righthaven handles serious defenses to the complaints, and whether pursuing active litigation fits Righthaven's business model.

In the meantime, the publicity surrounding this so-called "copyright troll" and the other high-profile copyright infringement claims of 2010 have served a useful purpose in reminding the public (and even non-copyright lawyers) about best practices regarding copyright law. Said differently, this is a very good time for clients to revisit their copyright practices. Maybe the economy and the election cycle have motivated more parties to enforce their copyrights, and maybe there could be a sustainable entrepreneurial enforcement model for a new kind of "troll," but the copyright law – as always – still prevents copying.

79 thoughts on “Guest Post: Open Season on Copyright Infringement Claims? All Hail, or Hate, the “Troll”?

  1. DC–

    I had forgotten about this thread…

    With your last post you have migrated the discussion from the copyright to the patent arena.

    Early on, you used your purportedly “unique situation” as a contrast, to highlight the plight of hapless copyright defendants not similarly situated.

    When your suggestion that your situation was in any way “unique” was challenged, you provided not a copyright example, but a patent example.

    I cannot see how your example meaningfully informs the copyright issue. You have hung your hat on the requirement that “the judge can handle the technology to the extent necessary”. There is no equivalent technological dimension in copyright law, and your example is therefore unhelpful.

    As for your remaining 3 criteria–facts subject to establishment on SJ without expert testimony; a single element of the case obviously missing and discovery not required for proof of this fact; and a judge amenable to early SJ and staying discovery to deal with the SJ, you have again failed to provide any evidence that those conditions are/were in any way unique to your situation, versus the situation of any other non-infringing defendant.

    Can you provide any specific examples of your experience that pertain particularly to copyright?

    And finally, in one of your earlier posts you stated that “The safe side is not so easy to determine.” In the copyright context, yes it is: IF YOU DIDN’T GENERATE THE CONTENT INDEPENDENTLY AND YOU HAVE NOT SECURED PERMISSION TO USE IT, THEN DON’T USE IT.

    That is incredibly easy to determine. Even easier, if you want to be really expeditious and certain, is: IF YOU DIDN’T GENERATE THE CONTENT INDEPENDENTLY, THEN DON’T USE IT.

    I don’t feel any sympathy at all for so-called “innocent infringers”, unless they are children, or suffer from some legally-recognized incapacity. The rest should grow up and start paying attention to what is really actually important, instead of paying attention to the fine points of NFL defensive alignments. Their ignorance is a product of how they choose to live–if they are willing to accept the benefits of such a life (lots of leisure), they must reasonably be expected to bear the burdens thereof (liability for copyright infringement).

    Having said that, I do agree with you that procedures do seem to be asymmetrical in favor of a copyright plaintiff, in a temporal sense. If what you argue for is a new judicial economy, then I’m on board, but I think that would require careful tweaking, and not wildly in favor of alleged infringers, as the tone of your posts would suggest.

    In the case of Jammie Thomas, against whom damages of $9250 were assessed for each song after RIAA’s settlement offer of $1042 per song was rejected, can you show why $9250 for having a song file on a file-sharing site was unreasonable in that case? Of course, settlement offers are not proof of actual damages.

    BTW, in what district do you practice? Where is it that district court judges don’t understand when and why SJ motions can be filed?

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  3. For Inviting Body Punches:
    I like your proposal of an early damages assessment by the court, especially if it is somewhat binding (like ruling out statutory damages, or setting a presumptive cap on damages).

    For patent cases, I would suggest that, at some early date (like, filed with the complaint) that plaintiffs should be required to submit binding claim constructions. It is their patent, and they don’t need discovery to tell them what there own claims mean (they need discovery to tell them how to re-interpret the claims in light of the defendants product and prior art).

    Here is what I mean by uniquely situated, in the context of your question of putting a price on the plaintiff’s activity, such that we could be sure that the costs were not sufficient to deter suit, but the case settled in favor of the defendant : The facts are subject to establishment on summary judgment without expert testimony, a single element of the case is obviously missing, and no discovery is necessary to show this, and you have a judge that is amenable to early summary judgment and staying discovery to deal with the summary judgment, and the judge can handle the technology to the extent necessary (that is, he or she has the technical wherewithal to deal with basic technologies that we all deal with on a daily basis).

    Those situations are so infrequent that I find that I have to point out to judges that I am allowed to file a summary judgment early, before discovery starts. In many cases, non-infringement or infringement can be blatantly clear to the engineers, but if you need an expert to tell the judge the basic technical stuff, you cannot support a summary judgment. If the missing element in a patent case is a means plus function element, you might not be able to support an early summary judgment. So the defect in the infringement case has to be just right to resolve the case early. Also, the judge has to have his/her wits about him.

    Here is a true-life example: A patent has a single claim to a combination of salt and sugar. The prior art shows a combination of sodium chloride and sugar. We all know that sodium chloride is a salt. The patent itself includes sodium chloride as a salt that can be used in the invention. A high school chemistry book shows a list of salts, starting with sodium chloride. Summary judgment is denied because no expert testimony was offered to prove that sodium chloride is a salt, despite the perfect match between the text strings in the references. In that case, one of the elements needed to make the case uniquely suited to summary judgment was missing. The judge was not comfortable with simple technology of daily life. But in many cases, proving non-infringement can be quite difficult, or require expert testimony, or percipient witness testimony. Because the judge is not supposed to weigh credibility on summary judgment, plaintiffs can defeat summary judgment with silly suggestions that the simplest facts are subject to debate. In a patent case, that is more the norm, and cases amendable to early SJ are thus “unique.”

  4. “In general, the costs to a plaintiff of pursuing a frivolous or vexatious claim (in any area of law) are often insufficient to curtail such activity. That is why we are developing rules like FRCP Rule 11 and CCP 128: The mere risk of losing is definitely not enough to curtail frivolous lawsuits, and the mere right to impose litigation burden is what sustains troll behavior. So, making trolls realize their full cost rarely enters into their calculus, in that they demand damages exorbitant compared to the property they are hawking, but tiny compared to the cost of defense. That is the whole troll calculus.”

    This also argues that we reduce litigation costs by any reasonable means possible. The author of this note obviously does not understand that the best way to do that is to cut to the chase and to get litigation done promptly. It is amazing how work expands to fill a vacuum offered by endless delays.

    Part of the litigation cost issue lies with the defendants bar who try to avoid rocket dockets. They really want to stretch things out and drive up litigation costs as much as possible (like the Czar did to defeat Napoleon by avoiding a decisive battle while at the same time denying him forage). Rather than focusing on the alleged sham litigation offered by the troll, one might suggest a closer focus and see just who it is that is driving up litigation costs. It is not the troll.

  5. “penalty of crippling legal bills”

    Your basic argument remains that the costs to a plaintiff of pursuing a frivolous or vexatious copyright claim are insufficient to curtail such activity.

    Such costs effectively do not exist unless they are imposed by a defendant. The current legal system affords defendants the mechanisms to both prove that those costs should be incurred and to impose those costs.

    You lament that some fraction of defendants lack the means to invoke and enforce said legal mechanisms. This situation is in no way unique to copyright law. For particular complaints, small-claims or conciliation court provide a low-cost alternative, but to my knowledge no such lower-cost alternative exists for copyright claims.

    Presumably, the large claimed damage amounts preclude unsophisticated proceedings, in any case.

    I’ll agree with you this far: that there should be a preliminary hearing held at which a rationally-determined likely damages amount is estimated, and there should be a sliding procedural scale and different remedies options for different damages amount classes. Maybe some sort of binding arbitration.

    And maybe damages amounts could be statutorily capped in instances of personal and non-commercial use.

    Unfortunately, no such mechanisms currently exist.

    I don’t think that any other means of leveling the playing field is equitable to bona-fide plaintiffs.

    And to use a truism, as in other areas of legal endeavor, freedom is not free.

    BTW, it DOES take money to draft and file a complaint. The costs rise immediately if motions practice is involved.

    And when you said that you “were uniquely situated with facts, procedural options and judges that got it”, you’re making value judgments again. What is unique about that situation, and how do you know it is in any way unique? It just sounds to me like a viable defense scenario, one just as likely to be enjoyed by any other non-infringing defendant.

  6. I am also curious about the “$300,000″ statutory damages limit. There are provisions for damages theoretically in excess of $150,000, but I cannot see how they add up to the precise amount of $300,000 mentioned in the original post. Please share with us the origin of that sum.

  7. @Tom Field

    However, 504(b) states “The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.”

    Depending on the permissible methodologies for the latter and the size of the organization, this could prove VERY expensive.

  8. And as it should be
    each to his (or her) own
    sometimes it is not lonely
    to be alone

    Only you can be you
    there’s no other to care a-
    bout. One voice, not two
    only one to be, only sarah

    No elephants, no donkeys
    no else thinks like thee
    Represent yourself, and you alone,
    your voice will be heard – you will see.

  9. If owned Copyright footage is used to hurt the owner in the opposite way it was intended to represent. That should be not just a Copyright Issue… For fear of speaking outside my Arse. I will only infer other issues.

  10. The abuse Mr. Zelnick discusses, if it is abuse, targets political speech.
    If Righthaven is targeting people that pass off news articles as their own work, that is appropriate, but if they are targeting people that use newspaper articles to illustrate a political or policy disagreement, that is wrong. As for Fox, it seems from Slate’s article that if your politics are properly aligned with theirs, fair use is perfectly permissible, but if your fair use is misaligned, then copying is not permissible and subject to the penalty of crippling legal bills (they don’t need to win to stifle). It is dangerous for democracy to allow news media hamper exposition of prior activities of politicians they favor. It seems that the mere pejorative of “troll,” which suggests lazy brutish behavior, is not pejorative enough for politically targeted suppression of fair use.
    But the behaviors of copyright trolls and political copyright abusers seem so different that they constitute separate problems. One balances free political speech against corporate-political speech, and the other balances free enterprise against an unfair business practices. The solution to each, or a decision to tolerate each, would be based on different factors.

  11. Robert Zelnick’s article about the new “copyright troll” is interesting and illuminating. There are, however, a few oversimplifications and at least one point overlooked. First, “don’t copy” is just too simple a solution. As an expert witness in copyright litigation, I know that things can look the same without being copied. Also, there are the fair use exceptions that leave lots of wiggle room. So even if someone doesn’t copy at all, there’s a chance of being hit with a lawsuit because two texts are surprisingly similar. And not copying at all means society will lose important works of commentary, satire, and news.

    Second, Zelnick doesn’t foresee the possible ultimate business model of Righthaven. While I don’t agree or disagree with Righthaven’s motives, I believe I see where they’re going. Jerome Lemelson was perhaps the first patent troll, but definitely the first to reach $1 billion in personal fortune from his effort. My understanding is that he started by bringing actions against small companies that could not easily defend themselves and Japanese companies that didn’t understand U.S. patent law. These companies saw his royalty fees as small compared to the costs of hiring lawyers to study and defend the patent infringement suits he brought. After amassing a huge war chest, Lemelson went after bigger and bigger companies and sought bigger and bigger payments. The more capital he had, the easier it was to win these battles.

    While Righthaven will probably never collect the multimillion dollar awards that Lemelson did, consider that nearly everyone in the world writes. There are thousands of novelists, thousands of journalists, thousands of researchers, and millions of bloggers. And copyright also applies to artists, filmmakers, and computer programmers. Righthaven, and companies like it, can potentially collect more than Lemelson even hoped for, and at less expense.

    I believe that Righthaven and its business model should not be underestimated. The solution to protecting yourself is more complex than simply not copying. The exciting part is that this new business model will create new areas of legal effort and will require the best technology to allow the protection of both copyrights and free speech.

    Bob Zeidman
    President, Software Analysis & Forensic Engineering Corporation
    http://www.SAFE-corp.biz

  12. Please check your bias at the door.

    Well Willton, if we actually employed that philosophy, we would never see a post from you, being as all that you ever have is bias in the form of your policy arguments that never ever seem to coincide with either fact or law.

    Tell ya what – start that policy with yourself and let us know how it turns out.

    Notwithstanding my slam of you above, I have checked my bias at the door. Quite objectively, Professor Lemley is one of the most biased and least credible people I know in the entire patent blogosphere. What is especially damming is that Lemley operates under the guise of “fact”, making up and shaping the data to expressly fit his views. With you at least, we know that you are not smart enough to get facts, or attempt to make up facts.

    Still, I have checked my bias at the door and afforded Lemley his due credibility. It just happens to match yours. Zero.

  13. 6,

    Don’t tell me that you are too young to remember Sinead?

    Sunshine,

    Seems like a reasonable study

    Consider the source.

  14. Author: Lemley (wow – ya wanna talk abouts a lack of credibility)

    Seems like a reasonable study, and nothing particularly finding about the conclusion (“software patents and those who assert them are teh sxck”). Nice to see it in black and white, though.

  15. “since you’ve been gone I can do whatever I want
    I can see whomever I choose
    I can eat my dinner in a fancy restaurant”

    LOL wut? Is that your attempt to be Sarah?

  16. 271 Article.

    Author: Lemley (wow – ya wanna talk abouts a lack of credibility)

    since you’ve been gone I can do whatever I want
    I can see whomever I choose
    I can eat my dinner in a fancy restaurant

  17. we have to make a value judgment as to whether we should continue to allow

    Great – call your congressman, isn’t that how we handle such manners in our civilized way?

    Unless, ya mean let’s go for some wild west justice…?

  18. While we are on the topic of copyright, has anyone attempted to rely on copyright precedent (fixed in a tangible medium) in analyzing whether random access memory may or may not constitute patent eligible subject matter (nontransitory medium)?

  19. From Inviting Body Punches: Can you give any instances of where that cost has in fact been determined, i.e. the complaint was filed, and the case was litigated to either settlement or conclusion in favor of the defendant? I have participated in a few such cases, but the settlements are confidential. In those cases, it wasn’t just the fact that the costs were insufficient to curtail such activity. It was that, plus the perception that the costs of defense were too high to do anything but settle quickly. Luckily, in these cases, we were uniquely situated with facts, procedural options and judges that got it. One judge even termed the complaint “a shake down.”

    Mr. Zelnick’s post highlighted a new issue that he calls copyright trolls, and I don’t know if the problem has been developed far enough that we have public examples of nuisance suits and the typical costs of suit in those cases where the defendant sticks to his guns. For a public example in the patent arena, see Qualcomm v. Broadcom litigation, with 8.5 million in sanctions awarded to Broadcom.

    In general, the costs to a plaintiff of pursuing a frivolous or vexatious claim (in any area of law) are often insufficient to curtail such activity. That is why we are developing rules like FRCP Rule 11 and CCP 128: The mere risk of losing is definitely not enough to curtail frivolous lawsuits, and the mere right to impose litigation burden is what sustains troll behavior. So, making trolls realize their full cost rarely enters into their calculus, in that they demand damages exorbitant compared to the property they are hawking, but tiny compared to the cost of defense. That is the whole troll calculus.

    It is everybody’s duty to NOT be bullied? That is my outlook as well, but a business may not be able to justify putting up the money to defend a nuisance suit if it costs far more that the nuisance demand.

    This was the decision made by thousands of defendants in California in the §17200 lawsuits: it was cheaper to pay the troll than defend to conclusion.
    If copyright aggregators are engaging in the same type of behavior, we have to make a value judgment as to whether we should continue to allow a transfer of large sums of money warranted copyright laws that were created before copyright aggregators and image scanners existed.

  20. Great article over at 271

    link to 271patent.blogspot.com

    Also, I think I might have left an IDS or two out of my listing I’m making of the cases I’m doing. I kind of forgot to post. Anyway, continuing with the IDS I did today:

    Case 7 (IDS 9)

    One IDS with 20 refs. All refs reasonably pertinent to the subject matter except one korean office action. One ref that is very good for teaching some things in some dependent claims. No 102′s, and the references cited are decent to make a rejection from but they’re not as good, imo, as the ones I’ve found and ones I knew of from a previous case about very similar stuff. I could techinically use some of the IDS refs to make not so great 103′s. Then again, I could use any one of several hundred refs in a sub to make a 103 in this case.

    Result will be after I type it up: 1 reference used from the IDS to get some deps.

  21. Is that a bash of the Office?

    Congratulations, ping. You have passed Beginners Reading Comprehension. I’ll put a little gold star next to your name and here’s a certificate to take home and show your mommy.

  22. Pardon the interruption:

    During the housing boom, millions of homeowners got easy access to mortgages while providing virtually no proof of their income or background …

    Ally Financial is now double-checking to make sure all documents are in order after lawsuits uncovered that a single employee of the company’s GMAC mortgage unit, a 41-year-old named Jeffrey Stephan, signed off on 10,000 foreclosure papers a month without checking whether the information justified an eviction.

    Ally wasn’t the only major lender that had a foreclosure process dependent on a few corporate bureaucrats.

    Beth Ann Cottrell said in a sworn deposition in May that she signed off on thousands of foreclosures a month for JPMorgan Chase even though she did not verify the accuracy of the information.

    Sounds like a typical day at the PTO.

  23. Ned Heller:
    She was a cute and innocent infringer, not an inadvertent infringer. But someone did not buy the cute and innocent bit.

  24. The Supremes are looking into this issue in an indirect way by looking at a case where a teen “downloaded” a few songs thinking it was OK to do so. She was sued and ordered to pay $200 per song. The district court had held that she was an innocent infringer. Court of Appeals overturned, holding that if a CD bears a copyright notice, she’s not innocent. The argument on petition is that he was unaware of the copyright notice on the CD, and that downloading was the equivalent of listening to music on internet radio.

    link to wired.com

    This seems a lot like the “inadvertent infringer” argument argued above.

  25. Where to start…

    I had a huge post, which I’ve just erased, going through your post point-by-point.

    You’ve made the case better than I ever could, that your post is the result of value judgment.

    Your basic argument seems to be that the costs to a plaintiff of pursuing a frivolous or vexatious copyright claim are insufficient to curtail such activity.

    You may be right, you may not. Can you give any instances of where that cost has in fact been determined, i.e. the complaint was filed, and the case was litigated to either settlement or conclusion in favor of the defendant?

    Making them realize the full cost will determine their calculus, and that is up to the citizen defendants. It is everybody’s duty to NOT be bullied.

  26. So in understanding Ziegler, that was brought on by double Patent problems and abandoning the first?
    So then in fact that is Extortion, brought on by being charged for more than one invention in the first application to begin with? and then the mess that followed

  27. ping Aren’t their sanctions for frivolous lawsuits?

    Speaking of which, whatever happened to the clowns with the patent on Nicholas Cage?

  28. But when a business model depends on exploitation of an ignorance, perhaps society can fairly decide that we do not want tolerate it.

    It’s been done before.

    On the other hand, a great deal of our economy is based on corporations peddling the latest shxt that nobody needs to ignorant people who are hoodwinked into believing that they need the latest shxt. For a small fee, you can read more about this by clicking on the blue button below. Or if you want to share this information with a friend, just click on the green button.

  29. For Ping:
    What exactly is an “inadvertent infringer”? Good question, but it happens all the time, and I resolve it all the time with a short discussion with the rights owner or infringer. Inadvertent infringement, in my own special lexicon, refers to adoption of copyrighted images, trade dress features, and even patent claims, inadvertently. This can happen when a local bakery pays someone to develop a website, and the designer uses a photo of a crescent roll available on the web (which may be freely downloadable, accompanied or unaccompanied by a fine print limitation on use, or downloadable with a fee and fine print limitations on use that forbid use on a bakery website), but someone claims a copyright on the photo of a crescent roll. This can happen when a clothing company employee puts a neat bit of stitchery on the pocket of a pair of blue jeans that looks somewhat like the stitchery on a competitor’s jeans: The company has no intent to knock off the trademark, even if the individual designer may have drawn inspiration from the competitor. It can happen when I trim peanut butter and jelly sandwiches to suit the kid, only to receive a cease and desist letter for the patent infringement. How was I suppose to know there was a patent on that? Though idealized, these are all common situations my clients have seen (from both sides). On both the rights owner side, and the inadvertent infringer side, these issues are routinely dealt with through accommodation: The inadvertent infringer replaces the crescent roll with a bagel (until threatened by the owner of similar looking bagel photo, but really, don’t they all look the same?), or sells off the existing stock of offending blue jeans, or stops trimming PBJ’s for the kids. That usually makes the rights holder happy. We do not insist on damages when accommodation achieves our legitimate goals (respect for each others legitimate rights) and the potential harm is tiny.
    That is my conception of inadvertent infringement. Does this concept go by another name? Maybe.
    And I do think the troll like behavior of copyright aggregators may be approaching scam status? I am not sure, but my first view of the problem suggests good reason to suspect it. Changing the law because people are ignorant of it? Perhaps not, but changing the procedure because rights owners are ignorant of the bounds of their rights might be considered. The CA B&P § 17200 situation may have involved many actual violators of many actual laws, but the procedures in place to address it invited the abuse you can see from review of that situation. California addressed it in two ways: penalizing the perpetrators of the activity, and altering the law.
    But when a business model depends on exploitation of an ignorance, perhaps society can fairly decide that we do not want tolerate it.
    At this point, it is an issue that could be developed further, but I think copyright aggregators are going to get rich, one demand letter at a time, before someone decides to litigate fully and determine what is actually going on. The B&P 17200 guys made many millions of dollars before they were shut down. That did not make them legitimate in the interim.

  30. Just like the false marking cases that became little more than a scam did.

    Tell that to Bon Tool.

    Of course, there will be ambulance chasing wanna-bes all the time. And if you ever make it to be a lawyer (I know I know – the real point being if you ever make it into law school), I easily see you in that wanna be role.

    It smelled of troll

    Aren’t their sanctions for frivolous lawsuits? Shouldn’t one of stature, as I assume that all nice Ivory Towerists want to be so held, avoid the demonizing of those who want to aggressively (as is their right) protect their property (as is their right)? DC, your defense of your language is only painting you more into the corner. You keep talking and soon nough, you be on your tippy toes in the corner with nowhere to go cepts across your freshly (and still wet) painted floor.

    Iza always said bouts dem Fals Marking cases – the Intent Prong’s gotta be met – but once that prong is met – throw the book at the suckers.

  31. For Sarcastus:
    I am not at all involved in the dispute I spoke of, I am only a witness to a drive-by demand letter (there’s those values poking through again). I have no idea if the image is copyrighted, is not subject to copyright, or was used with permission from the guy who created the image, etc. Maybe the perp does infringe. The letter was written by one of a host of paralegals employed by a large copyright aggregator, and was not accompanied by any proof of ownership, registration needed support damages, etc., and seemed, to my eye, to demand a lot of money, but not enough money to make it worthwhile for a defendant to contest. It smelled of troll. I suspect, based merely on comparison with patent troll activity and other nuisance suits like the B&P § 17200 suits that led to disbarment of a whole firm a few years ago, that the business model is to entice rather meager infringements by rather meager individuals, with the intent to demand very high “damages”. California has already decided that, at least in some contexts, the behavior is bad. I am not fully aware of the extent of the behavior in the current context, hence my suggestion for a follow up by one in the know. Perhaps this activity could be address through a 17200 suit, except that that statute was gutted in response to the aforementioned abuse.

  32. “So your point is that we need to change the law because people are ignorant of it?”

    When it is being exploited on a level that rises to what can only be referred to as a scam, yes. Definitely. To believe otherwise is ludicrous. At best.

    If what he said is happening is actually happening then your precious copyright lawls, or caselawls, will feel a sting in short order. Just as they already have and are going to continue to from the high profile cases pending now.

    Just like the false marking cases that became little more than a scam did.

  33. Maybe part of the purpose of this blog is to invite discussion

    Maybe?

    of the users’ ignorance of the law of copyright…And why the lawl needs to be changed.

    6,

    So your point is that we need to change the law because people are ignorant of it?

    I know you dwell in the ranks of the lowest common denominator, and believe that the law caters to your whims, but such catering of the law will not happen.

  34. “To the extent that any such dynamic exists, it rests on the foundation of the users’ ignorance of the law of copyright”

    Which is why DC feels like it is a scam. And why the lawl needs to be changed.

  35. For Inviting Body Punches:
    I did not mean to offer any offense, but apparently I hit a nerve.
    I certainly have values, but I am not making value judgments in my favor, since I am not involved in dispute. I merely witnessed a dispute, and it seemed to resemble the Trevor Law Group scam (they sued thousands of small businesses for very minor, only possibly true, violations of the California Automotive Repair Act, and the ADA, etc., until they got shut down). The demand letter I saw was devoid of any proof of copyright, devoid of any proof of ownership, devoid of any proof of registration, and demanded damages far in excess of any value attributable to the use of the very generic image. If you have ever paid anyone to develop a website for you, you will understand that copyright infringement can happen without volition. Also, if you know much of copyright law, you would know that even well funded corporations can disagree about whether a particular act is an infringement, and this negates volition (lawyers argue about volition, and they call it wilfulness). Legal advise, or “information to stay on the safe side” is readily available, lawyers on both sides are paidd to disagree, which may be why many corporations disagree with each other? The safe side is not so easy to determine.
    Huge amounts of money being siphoned off? I proposed that it is an issue, not that I had proof. It has been raised in relation to at least one large image website.
    Anyway, my values do skew against a system which encourages well funded copyright aggregators to implement systems for demanding, and obtaining, nuisance settlements from an large population of web users based on dubious copyright claims and their own inflated sense of the value of their images.
    Maybe part of the purpose of this blog is to invite discussion, so I’ll invite you to shed any light on the issues raised.
    By the way, I primarily represent creative types who generate intellectual property of good value, and I get paid to secure and enforce their rights. So, your assumption that I am whining because I think MY freedom is curtailed is way off. I am suggesting that we would all be better off if we struck a better balance between rights owners and merely alleged infringers, and that additional insights from Mr. Zelnick, who is posting because he has insights, would be of interest.

  36. If you don’t want your copyrighted images to be copied without reimbursement, don’t post them to the Internet.

  37. FYI: The reference to Righthaven’s “sole newspaper client, the Las Vegas Journal-Review,” is erroneous. The Arkansas Democrat-Gazette is also a client, and has been since at least August. I’d link to the Dem-Gaz story, but it’s subscription only.

  38. I think there is one thing that the article misses and I call it “just desserts.”

    For years, the Internet (or the recording industry, or the software industry, or any other of a host of groups talking in a broad general way) has been decrying the use of patents in their realm, touting that all that is really needed is copyright. After all patent rights are confusing, patent suits are expensive to defend, and those evil patent “trolls” can “extort” money out of us for using a technology that should exist for the betterment of all and which has become ubiquitous in its application.

    And now they are being forced to sleep in the bed they made because it turns out copyright suits are also expensive to defend, involve complicated legal rights determinations, and can be used to “extort” money out of the use of content which should exist for the betterment of all (free speech!) and has become ubiquitous in its application.

    And it turns out that being a copyright “troll” is easier than being a patent “troll”.

    Think about a copyright vs. patent suit. In copyright:

    You don’t have to spend tens of thousand of dollars to get the right to assert.

    You don’t have to convince an agency tasked with reviewing everything that what you have is actually new or useful.

    You can distribute copyrighted content under terms that remove statutory protections for the end consumer that the consumer doesn’t read, much less understand (click through/shrinkwrap/ etc. licenses)

    Copyright term is (about) 5 times as long as patent term

    You can assert statutory damages in copyright that you don’t have to prove.

    And you can assert potential criminal charges just to make sure the other side wants to settle.

    Is it any wonder that these suits are becoming more common?

  39. DC–

    Your post is rife with value judgments that you make in your own favor. Not surprising, but disappointing:

    “flooding” the web? Pejorative, and wrongly creates the impression that there is no way to avoid USING the copyright images.

    “ensure” that a few of the millions of web users will use copyright images? The “use” is an act of volition by the using party, that can in no way be “ensured” by the copyright owner in such a scenario.

    “intention” to send demand letters? Demand letters are only sent to those considered to be infringing, and there is absolutely nothing wrong with sending demand letters in such an instance.

    “excessive” demand letters? There is no evidence for this, and even if true, so what? That is all it is, a demand letter, and is not legally enforceable.

    “dupes”? You make it sound as if they have been intentionally tricked into using copyright images. To the extent that any such dynamic exists, it rests on the foundation of the users’ ignorance of the law of copyright. Given the frequent use of the creative commons license, the ubiquity of copyright law basics on the web, and given that the user is already on the web, it is ridiculous to characterize the user as a “dupe”, and better to characterize him or her as a lazy cheat.

    “damages mounting”? We have the defense of laches to address that issue, if it even exists. And the only reason it WOULD exist would be in the event of proven infringement.

    “inadvertent infringers? Total B.S.. Again, use is volitional, not accidental. If a person is uncertain, the default position is NO USE; and one can always ask, especially through the various photo-sharing sites.

    “poorly represented and ignorant infringers? Ignorant, maybe–but that is hardly an endearing trait, definitely not a legal defense, and even when applicable is by choice, given the availability of information to stay on the safe side. And I can’t see how the suggested monolithic quality of their representation has any interesting import particular to this scenario.

    “the huge amount of money being siphoned off”? Prove it. And even if true, “siphoned off”? Give me a break, derogatory again. That would be money OWED to the copyright owner, either by law or under agreement. The calculus of whether to defend or not is hardly unique to a “small business”, as you would suggest. Although the dollar amounts are all multiplied with large entities, the situation is exactly the same.

    Hey DC, get a life, quit whining and complaining that your freedoms are curtailed, and that society has chosen to vest in content the attributes of property.

    Grow up.

  40. I am always fascinated by articles like this. Presumably, the author–a partner at a large law firm–wrote this as an advertisement of sorts. An attempt to showcase not only his powers of analysis and persuasion, but also his writing. It is likely that such an article went through the firm’s general counsel office and the marketing department, yet it contains several typos, and as Eric Goldman points out, substantive errors as well.

  41. In such circumstances, when faced with a conflict between Art. I, Section 8 Cl. 8 and the 1st Amendment, the 1st Amendment should win out.

    It’s not as much of a conflict as you’d think. Copyright doesn’t prevent you voicing your opinion or control how you think. It only prevents you copying the way someone else has expressed himself. Even if you agree with him but don’t actually copy exactly what he said, you’re in the clear. Besides, they knew statutory copyright protection was a distinct possibility when they added the First Amendment, and they didn’t repeal it at that time, so they must have intended the two to coexist somehow.

    The First Amendment was enacted to let you express yourself. What copyright prevents you from expressing isn’t even yourself.

  42. Anyway, copyright was in the Constitution before free speech was, so chances are a little incidental incursion into the First Amendment is to be tolerated.

    Interesting theory. I would think that the later law would trump the earlier law, as a later law is typically more in-line with contemporary policy by virtue of the fact that it is later in time. In such circumstances, when faced with a conflict between Art. I, Section 8 Cl. 8 and the 1st Amendment, the 1st Amendment should win out.

  43. but we need to start with the correct factual predicates to have a useful discussion.

    Oh, you want a useful discussion…

    That’d be three doors down.

  44. I was confused by your statutory damages scale. It’s $200-$150,000 for a single work. I don’t understand how you got to the number $300,000 as the top end of damages.

    Also, you say “none of the 120+ Righthaven defendants has litigated what appear in some cases to be potentially valid ‘fair use’ theories.” It’s true that many Righthaven defendants took 100% of the work without adding any commentary on the same page. Those folks have a harder fair use defense. However, Righthaven has also sued non-profit/non-commercial actors who took less than 100% of the work, some of whom are near fair use’s sweet spot.

    I will add that Righthaven has also sued web hosts for user-posted copies of the articles, and those defendants have a variety of additional defenses.

    I disagree with most of your other normative assessments of this situation, but we need to start with the correct factual predicates to have a useful discussion.

    Eric.

  45. I think DMCA has confused people regarding cease-and-desist demands. The feeling seems to be that the “take-down” provisions of DMCA apply to all potential infringers, not just to a very limited class (ISPs, for the most part) of potential infringers. Of course, it’s easy to believe that what is good for the goose (ISPs) is good for the gander (the rest of us). But that sort of reasoning doesn’t get one very far when one is construing statutory provisions.

    Proponents of “fairness” have a better argument when it comes to statutory fair use, because the statute specifically states that fair use (as defined by the statute) “is not an infringement of copyright”. On the other hand, in a given case statutory fair use could easily turn out to be a complex question of fact that might require discovery and/or trial.

  46. P.S. I misspoke. 412 permits attorney fees and statutory damages if registration of a *published* work occurs within three months. So, if one identifies articles reprinted within, say, a week after they were published, there is ample time to file. Expedited registration is available, and, whether that is sought or not, once granted, registration relates back to the filing date.

  47. I wonder how many of the newspapers have registered copyright prior to the infringement. Absent that, no statutory damages or attorney fees (sec. 412).

    I wonder how many defendants appreciate that they can recover attorney fees if they prevail.

    For starters, amount taken is one factor considered in fair use analysis. How does one regard a single article lifted from a large newspaper over the course of a year or its lifetime?

  48. While there are a number of issues with Righthaven’s business model, two in particular are worth mentioning. First, Righthaven’s suits appear to ignore substantial fair use defenses (and other defenses) that many of its targets have to the re-posting of news articles. Second, Righthaven’s complaints typically include a demand for not only proper copyright remedies (such as damages and injunctive relief), but also a demand that the defendant’s Internet domain be seized and given to Righthaven. This claim is not authorized by the Copyright Act and raises serious First Amendment issues. Righthaven’s attempt to claim the defendant’s Internet domain solely because of an allegedly infringing posting is plainly a terror tactic designed to force a settlement that is unjustified in many cases.

  49. Odd that this should come up on PatentlyO on the day I see a copyright troll demand letter. There are two trolling activities that I suspect. Firstly, flooding the web with “copyright” images to ensure that at least a few of the millions of web users will use them, with the intention to send excessive demand letters to the dupes. Secondly, using PicScout to find images which they have contributed for that purpose, but waiting a very long time to address the issue, so that damages mount. The goal is not to prevent infringement and quash unauthorized use, but to encourage unauthorized use and maximize purported damages against poorly represented and ignorant inadvertent infringers. An article from an erudite guest might have done better to address this developing problem. Focusing on a few big defendants that can well afford to defend themselves leaves this post hollow, given the huge amount of money the trolls seems to be siphoning off of typical small businesses.
    So, Robert Zelnick, can you give us a follow up post that digs up the practices of the trolls.

  50. “Innovation is always better then extortion.”

    I would saying that innovation is better than copying. Regardless, the law will always treat the innovator better than the copier.

    Too many people got used to the free ride and are now complaining when they have to pay for it.

    FYI — copying somebody else’s copyrighted works is not “free speech.” Also, the Courts have long treated different types of speech differently.

  51. On the plus side though BJA, if she gets hit hard enough, but still wins the election, maybe she’ll become a stringent advocate for changing copyright lawls.

  52. I see that none of you have seen the Carnahan/Blunt commercial that Fox is suing over.

    Fox sent a cease and desist letter, but Carnahan put out a statement saying that she intends to continue running the commercial.

    So Fox sued.

    None of this answers the question of why Fox cares this time, but they haven’t cared about past excerpts.

    Well, this particular commercial is a series of excepts of Chris Wallace interviewing (questioning) Carnahan’s opponent a decade ago. The commercial ONLY shows Wallace’s questions, not Blunt’s answers, so the “news” defense is out the window. Thus, Carnahan has no fair use defense, and now, she’s a willful infringer. I’d say that warrants suit.

  53. The Fox News claims have enormous potential to quell speech during elections.

    They can quell speech that agrees with them because it’s copied from them.

    They can’t quell speech that parodies them or disagrees with them, or even agrees with them but is original. Or blatantly copies them and ignores their threats of litigation.

    Anyway, copyright was in the Constitution before free speech was, so chances are a little incidental incursion into the First Amendment is to be tolerated.

  54. Although the topic of copyright trolls is extremely interesting, I am disappointed at that there is not one mention of the free speech concerns related to these new business models based on threats and questionable claims.

    Yes copyright is in the Constitution, but so is free speech the 1st Amendment which is codified in fair use section 107 of the copyright act (although judges have the power to go beyond section 107 when protecting speech). The Fox News claims have enormous potential to quell speech during elections.

    Now on to the meat of the article Mr. Zelnick fails to address the major issues with regard to the Righthaven suits due process (are these suits fair). Business that are formed to threaten people with suits then settle for less then the cost of a lawyer are not legitimate. This is extortion! Groups like Righthaven and the US Copyright Group are taking advantage of the fact that we do not provide basic legal council to people in civil case. Suits like the Righthaven suit are not about copyright they are about abusing the threat of statutory damages.

    Dieing business, like newspapers, need to look it evolve not sue to stay alive. Innovation is always better then extortion.

  55. If the people actually gave a dam about the laws in this country they’d be changed by now.

    God bless us for not giving a dam.

  56. This comes down to two things:

    One, big bad lawyers trying to shake down individual bloggers who may not have a lot of money or familiarity with copyright law in the first place.

    And two, an insufficient statutory definition of fair use in a technological age that relies heavily upon the concept.

  57. copyright lawls, like the patent lawls, are outdated. Simple as that. If the people actually gave a dam about the laws in this country they’d be changed by now.

    As to the basis in the constitution, it probably wouldn’t even be there if the original congress knew what it would turn into. There was fierce fighting about even allowing copyright for the very limited times they got it back in the day, the monstrosity corporate interests have turned it into today would have been repugnant to even the most staunch supporter back in the day.

  58. Sure, these defendants saw the copyright notices on the newspapers and websites whose content they allegedly copied, and they knew at some level that copying often has some element of “wrong” to it. But perhaps they figured that there was a safe harbor in doing what everyone else seemed to be doing.

    It’s much harder to sympathize with a copyright infringer as being gotcha’d, since infringement requires actual copying, and everybody who copies news media footage for rebroadcast is aware of copyright. If they don’t understand the law or its exceptions, they should educate themselves, but their failure to do so doesn’t make them innocent.

    You can’t place a copyright in the path of a developing news story in the same way you can place a patent in the path of developing technology, and you can’t do it secretly or subtly because it’s only infringement if your work is copied.

    As little as I sympathize with innocent patent infringers, I sympathize even less with infringers who have copied someone else’s product – marked or not. If you copy someone else’s work, it should occur to you that the originator may retain some rights in it.

  59. The Fox network has been defending against claims that it violated a plaintiff’s copyright when it ran footage of Bernard Madoff, and now the Fox network (in an unrelated claim) is suing politician Robin Carnahan for alleged unauthorized use of Fox clip in a political ad. Some blame the poor economy, some blame the lawyers, some blame a heated election season.

    THe answer is none of the above. As a propoganda tool for corporate and GOP interests, they are a reliable target for those who disagree with their politics (and their lies — though this is the GOP we’re talking about, so the distinction is slim). With respect to Carnahan, they are simply taking a swipe at an opponent of one of their favored candidates.

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