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.
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.
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!?
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.
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.
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?"
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 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.
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...
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
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.
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.
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.
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.
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 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.
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.
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.
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?
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.
There was a story not too far back about some musicians generating every possible combination of 8 notes and publishing it in order to prevent future music copyright trolls.
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. :/
There's a similar publication in 3D printing too. It's called Joshua Pearce’s Algorithm[0] which covers all the major parameters and components of 3d printing materials and other factors.
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.
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.
I guess the real problem is court cases can ruin people financially, even if they win. Ideas like this are nice, but the real solution would be to make it difficult for these trolls to go to court in the first place
Courts are actually pretty reasonable about music copyrights in most cases[1] - nobody wants really strong copyrights in that field anyways since "derivative" work is a really strong value creator.
Remember there are people that spam Wikimedia and Flickr with various CC-FZ-AT-UT-W2 licensed images, then use search engines to identify misuse of their "work":
For those of us who don't know as much, could you elaborate? I know "CC" is Creative Commons, but I don't know what FZ-AT-UT-W2 are.
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...
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:
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"
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.
I'm willing to bet that, to a first approximation, even people who go out of their way to credit photographers almost never get the exact form of the attribution 100% correct.
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.
A friend of mine had the Abmahnung thing happen to her. Accidentally included a photo without permission, in a batch of photos she otherwise had permission for, in a portfolio of architectural work. After a few years she got a claim for a couple grand.
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 can't prove it, but I'm pretty sure I saw someone post photos to wikimedia under a CC license. But then later claim that person was an imposter and wasn't authorized to do so. Now they get to make claims against anyone who, in good faith, used the wikimedia image believing it to be CC.
What's needed is a general defense against frivolous lawsuits. Something like a pre-trial phase where you're represented by a free public defender, and only if the plaintiff wins, can they move on to a "real" trial.
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.
That, or severe penalties, including reimbursement of all legal costs and the voiding of all copyrights owned by a firm that is found to be attempting to enforce copyright frivolously.
And two of the Design Basics designs he linked, the "Cotter" and the "Crandall", are (while not exact, still pretty much) just mirror images of each other. Nice way to blow up your portfolio by 100 %.
Can anyone speak to the viability of fighting these cases in court? Is it a sure win/loss? Is it guaranteed to take at least X months and cost Y dollars?
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?
I just checked out their website. There is another website called floorplans.com which I'm pretty sure is legit (they will sell you construction plans) and I found some very similar designs between the two.
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.
I wonder. With these floor plans being so vague, could the defendants being sued for copyright infringement just argue that these copyrights were so vague that they accidentally copied them?
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.
One regrettable thing that seems to happen here a lot is that pedants will swarm to address some relatively irrelevant misunderstanding made in a genuine question relevant to the article without ever addressing the question being asked.
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?
Clean room reverse engineering is a valid protection against copyright claims. So as long as whoever drew the plans didn't know about the original they are safe. Even if the builder had a copy of their plans and gave whoever did the drawings leading instructions to get them to draw something similar to the original.
So when you start up a home building company, first thing you do is have your IT guy set up a mail filter to block receiving anything from these arseholes. Order it in writing, and make sure IT guy notes it prominently in his work log.
> 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?
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.
Floor plans are not copyrightable. The blueprint might be - but that includes things like "Joe's architecture services" which wouldn't be on your copy, and the dimension markings would be in different places (unless the placement is standardized in which case the placement is not creative and thus not copyrightable).
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.
The article (and I'm not sure how accurate this is) seems to be claiming the houses themselves are in violation of DesignBasics' copyrights:
>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?
That's pretty much the business model. Cost of settling can be less than the cost of defending the suit.
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!
That's probably why floor plans are only for 4 BR or less homes. Middle class, upper middle class maybe. Most likely the kind of people without deep pockets.
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.
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.
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).
Opposite use case, but basically same idea. If only some forward-looking intellectual freedom fighter had beaten these bastards to the punch and applied it to the home-building business like those guys did to music.
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?
I had a similar situation whereby someone sued me because i worked with someone 10 years earlier and he was hoping to get dirt on him by extorting me. I called my cousin and the deal was that he will represent me and take the whole compensation for a dumb ass lawsuit. Fortunately it worked and i saved about 8k$ in legal expenses.
Would changing state laws make these cases go away? So if you forced the patent or copyright holder to file suit in the defendant’s home state, you’d also require them to be in unfavorable courts, adhere to local and state laws of the business or person defendant, and allows the defendant to be familiar with local and state requirements.
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.
IP laws were created to encourage innovation, but have perverted to the point where now they are mostly used by people hoping to suppress it or seek rent from others' work.
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.
