What is a Copyright Troll?

This content has been archived. It may no longer be accurate or relevant.

From Plagiarism Today:

Earlier this month, Ashley Cullins at The Hollywood Reporter Esquire published a piece entitled “Has This Man Sued You? A ‘Copyright Troll’ Takes on Hollywood“.

The story focuses on New York attorney Richard Liebowitz, who has found a niche in helping photographers sue those who use their images without a license.

Liebowitz, a photographer himself, has filed hundreds of lawsuits on behalf of more than 350 photographers. The most common target of those lawsuits is media companies such as CBS, Vice, Yahoo and more.

But, as the headline shows, his aggressively litigious nature has not endeared him to everyone. The “Copyright Troll” part of that headline was taken from Judge Denise Cote, a judge in the United States District Court for the Southern District of New York in a ruling on a motion for fees.

The full quote, according to the original article, is “Plaintiff’s counsel, Richard Liebowitz, is a known copyright ‘troll,’ filing over 500 cases in this district alone in the past twenty-four months.”

. . . .

I established a three-part test of who is or is not a copyright troll based upon Wikipedia’s definition of the term. The three elements were:

1. Attempting to use litigation (or threats thereof) as a source of profit.
2. Extremely aggressive with litigation (or threats thereof), targeting large numbers of infringers.
3. Has limited interest in distributing the work legally and is not the creator of the work.

. . . .

Looking at Liebowitz’ case, there’s no doubt that he meets the second qualification and is an extremely aggressive litigator. Likewise, whether or not the litigation is an attempt at profit is speculation. However, Liebowitz has always maintained that he is doing it for the photographers to push companies into obtaining licenses, not for direct profit.

But even if one does concede the first point, there’s no reasonable way to say Liebowitz meets the third. The photographers he represents are professionals who earn a living licensing their works.

The problem that Liebowitz (and attorneys like him) are attempting to crack isn’t “How to profit from infringement?” but “How to stem the massive amount of infringement taking place?”

For photographers this has been particularly vexing as websites and media companies, including many that could easily afford to pay license fees, often take and use photos without permission. Whether it’s out of error, ignorance, expediency or a desire to cut financial corners, the problem is so widespread that a 2016 survey by Pixsy found that some 64% of professional photographers had discovered their work being stolen.

. . . .

When attorneys or rightsholders such as Liebowitz file hundreds of lawsuits, they aren’t using litigation as it’s intended. However, they are using the only tools that they have available as, right now, litigation and threats of litigation are the only options creators have to recover damages from the massive amounts of relatively low-value infringement taking place.

Link to the rest at Plagiarism Today

Calling an attorney who helps holders of intellectual property obtain reasonable damages for improper use of their creations a troll began long before Richard Liebowitz started filing suits for photographers.

Ray Niro, a friendly acquaintance of PG’s, was an attorney who represented a lot of inventors and was not afraid to file patent infringement suits against both large and small organizations to collect unpaid royalties. PG uses the past tense because, unfortunately, Ray passed away a couple of years ago.

A patent litigator for over 40 years, Ray primarily represented individual inventors or small companies in battles against extremely large companies. One of Intel’s lawyers, frustrated by successful lawsuits Ray filed against Intel for infringing his clients’ patents, labeled Ray as a “patent troll” and so the term was born.

Ray reveled at the label and was happy to share the Intel story with others, including prospective clients.

The problems with infringement of patents by large organizations are similar to the infringement of copyrights by large organizations. In PG’s experience, the typical reaction from the general counsel’s office is to automatically deny that any infringement has occurred and refuse to pay anything close to a reasonable royalty to resolve the matter.

This makes some financial sense for a large corporation because if it can intimidate an individual inventor into just going away with a couple of dismissive letters, corporate counsel calculates that it has saved money in this case and sent out a message to other inventors that anyone who wants to be compensated for the company’s use of their intellectual property is going to have to file suit and endure a long and expensive court battle before the infringer will even consider paying any royalties. Since most inventors, like most authors, would prefer to be using their talents to create something new, most large infringers skate.

However, far more than one inventor has become so discouraged and/or impoverished from the experience of creating something important and unique, then watching others use that creation without acknowledging or rewarding the creator that the inventor just gives up. Under these circumstances, it is impossible to calculate the losses to society of the value from the creations that might have been made but were not because the principal beneficiaries of the creations that did come to life took them without paying the creator anything.

The rights of creators are included in the United States Constitution. Article I Section 8, Clause 8 states that Congress shall have the power:

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Pursuant to this clause, the First Congress of the United States passed and President George Washington signed The Copyright Act of 1790, “An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies”.

Similarly, the First Congress passed and Washington signed The Patent Act of 1790 “An Act to promote the progress of useful Arts.”

The Copyright Act of 1790 was based upon the Anglo-Scottish Copyright Act of 1710, also known as the Statute of Anne. This statute, formally titled “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”, granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print.

From Wikipedia:

The central plank of the statute is a social quid pro quo; to encourage “learned men to compose and write useful books” the statute guaranteed the finite right to print and reprint those works. It established a pragmatic bargain involving authors, the booksellers and the public. The Statute of Anne ended the old system whereby only literature that met the censorship standards administered by the booksellers could appear in print. The statute furthermore created a public domain for literature, as previously all literature belonged to the booksellers forever.

PG provides this summary of early history regarding the principles governing the creation and use of intellectual property to demonstrate that copyright and patent infringement litigation involves more fundamental issues and values than who is the greediest and who should get the money.

UPDATE:

PG neglected to mention that there are lots of places where you can locate very nice photos and illustrations that the creator offers for no royalty payments. In this case, the creator has made a decision that it is in her/his best interests or is keeping with his/her artistic philosophy to encourage widespread publication of her/his creations.

Here are some of PG’s favorites (each of these has hundreds of thousands of photos):

Unsplash

Pixabay

Pexels

PG recommends that if you’re going to use a photo/illustration for clearly commercial purposes (e.g. a book cover), doublecheck the terms of use or reserved rights for the specific photo. The photo’s description will include a rights summary or a link to a rights summary. For author blogs, Instagram, etc., the free offerings on each of these sites should be fine.

Here’s a sample from Unsplash:

Here’s a sample from Pixabay:

Here’s a sample from Pexels: