Memorable quote a while back by an SDNY judge about Liebowitz:
> In his relatively short career litigating in this District, Richard Liebowitz has earned the dubious distinction of being a regular target of sanctions-related motions and orders. Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone. See, e.g., ... This Opinion is the latest contribution to that body of law. For the reasons stated below, the Court concludes that sanctions should indeed be imposed on Mr. Liebowitz for his repeated failure to comply with this Court’s orders, failures that imposed considerable and unwarranted costs on the Court, its staff, and Defendant NBCUniversal Media, LLC.
What this demonstrates: Years of unethical, overtly extortionary and often illegal copyright trolling isn't enough to trigger disbarment. (Not even criminal charges but a loss of license. In one state.)
It's years of copyright trolling so incompetent that judges began pushing back. Plus another period of angering those judges with non-compliance.
What this hints at: When copyright is on the table, unethical, extortionary and illegal trolling usually flies just fine.
The whole system where a person can lose a license and permission to work for arbitrary reasons is unfair. The license should prove that the person has necessary knowledge and should not be used as a mean to punish someone for his views or for being too smart to profit from unfair laws. If you want to punish people, there is criminal code.
Knowledge of how to do X isn't the only relevant qualification for being licensed to do X. In fact, I'd argue it's not even the primary qualification. Something else underlies it: the ability to be trusted to do X without causing damage or harm.
Take an example from another licensed practice: operating a vehicle on public roads. Knowledge, skill, and being of age are enough to elicit an initial trust from your local authorities. But if you violate that trust by, say, willfully disregarding a red light, your license may be revoked, not because you forgot what red lights mean, or because you stopped being skilled at using your brakes, but because your holding of this license is now demonstrated to be a threat to public safety.
The objective of a licensing system is to protect others from harm before it happens. The threat of losing a license is a good deterrent, and better, often, than the threat of criminal punishment, precisely because it's easier to invoke. (You called it "for arbitrary reasons", which is false, by the way.)
Haha--that one caught my attention as well. His litigation is so audacious as to begin setting precedent. This is how our system should work though; through contention it strengthens itself.
>The respondent’s statement in his January 13, 2018 letter that the defendant “had yet to respond to the complaint” was false and misleading, and the respondent knew that it was false and misleading when he made it. The January 13, 2018 letter failed to advise the court of the months-long history of communication between the parties, beginning in July 2017, as mentioned above.
I'm also curious about that, but we should recognize that whether it's fraud and whether it should be prosecuted as fraud are different questions. For a conviction you need proof beyond a reasonable doubt, where disbarment seems (from a cursory search) to merely require preponderance of the evidence. If that's right, some people will rightly be disbarred for crimes they cannot be convicted of.
Lawyers rule the entire justice system. Not even the "good" ones want to normalize the prosecution of lawyers for committing crimes while practicing law.
That may also be the case, and not knowing a lot about this case it does seem like prosecution is probably merited here, and we should push back on tendencies like that across industries. My comment still stands, though; we should be quicker to disbar over a thing than to prosecute, evidentiarily speaking.
On the contrary, I believe the existence of and ease of disbarring works as a substitute for prosecution, albeit under different terms of "law" and "justice-- if you can call it that.
At the same time, the very existence of disbarring without the due process required for convictions, also means, the "good ones" wouldn't risk it by speaking up and demanding "prosecution" of their peers.
I see what you're saying, and... maybe? I do think we need to pick apart two questions that I don't think I kept clear. On the one hand, "given the rules we have, how much can we infer bad behavior of decision-makers in that system because someone is disbarred for a crime they are not charged with"; this is more of what I had in mind, and I think I stand by my position of "based on the rules we should expect to see that when the system is performing nominally, though it's not a bad idea to look closer." On the other hand, there is the question of whether these rules are appropriate. I think philosophically there is something to say for "we should disqualify people from positions of trust faster than we should jail them", but that doesn't rule out the possibility that the system is abused in the ways you describe. The practical probably should win out over the philosophical, here, but I don't have the information myself to weigh in.
> "we should disqualify people from positions of trust faster than we should jail them"
Sure, but the revoking of license can be codified into the law, essentially, the same "disqualification" but under the same framework of law as for any other crime and punishment, most of it anyways.
I don't think I have a problem with that, although I would have to see the specific proposal, talk to people, and think deeper before I would wave my magic wand to make it happen.
As ridiculous as that is, claiming his grandfather died as an excuse then claiming the court lacked jurisdiction and decorum by asking for proof is really something.
This also took me a second The issue is he failed to show for a hearing.
We miss things all the time: Flights, meetings, tests, etc.
We have normalized missing to then try to explain after the fact. Thats not how it works for the courts. You must show up unless you are physically unable to do so. Yhis is why the burial date mattered.
Clearly a death on the same day would make it impossible to attend. But a few days prior would mean its not impossible. You simply need to notify and a new date is granted. Its just poor planning on the plaintiff side.
My source was also the Lawful Masses stream, but it sounded like the original excuse was made in April, but it took until November for him to actually produce the death certificate to prove that he had lied about when his grandfather had died.
That point is made in the article - he could have simply said the Grandfather died that week, and it would have been accepted. Instead he doubled down on going on attack, most likely because it did feel like a lie when he said it or was not the actual reason he missed the proceedings.
I found out recently that a local artist was forced to cease operations because of a copyright troll. I can't imagine they're the only example of a small business getting flattened by this kind of abuse of the law.
Sony lost in court twice but destroyed at least two commercial playstation emulators in the process. They abused the legal system to disrupt the activities of other corporations by simply burning their money via legal fees until the projects they wanted to kill were no longer financially viable.
Imagine the power imbalance when one of these multi-billion dollar monopolists go after some random individual for downloading a song or something.
My client, the sky, is suing your client for copyright infringement.
Additionally my client is suing GGP’s client for the offer of water, in which my client believes they have a valid interest but were not given due consideration in the making of this offer.
The sky is in violation of my client Sky Media's trademark. We demand that you immediately cease and desist using the term "sky" and all related vernacular.
Thanks for all of these! It perfectly sums up the tar pit that is patents (trademarks and reservations) and copyrights. A couple made me laugh pretty good. Where there’s an interest, there’s 10 in the wing ready to pounce.
He wasted a fantastic amount of the court’s time and various people’s time and money which they never got back.
He clearly knew what he was doing was wrong.
Why shouldn’t there be some criminal statute to punish him? Nothing here fixes any of the harm he’s caused. It just (hopefully) prevents him from doing it in the future.
Though based on how he got here I’m guessing he’ll find a new way.
> He wasted a fantastic amount of the court’s time and various people’s time and money which they never got back.
Virtually every crime costs other people time and money. We generally draw a line between that and more severe varieties of crime, such as those involving physical violence.
What do you think the punishment for protection racket and extortion should be? Patent trolling is exactly that, except masking under the legal system.
It's worse because it's coming from a particularly trusted position, an officer of the court. In the same way it is particularly heinous when a doctor physically harms someone for profit, it is particularly heinous when a lawyer legally harms someone for profit. In both cases they've taken specific oaths and have special duties above-and-beyond regular people to avoid doing such harm. In some sense the question of whether or not these bodies (doctors, lawyers, police officers) actually have higher standards or not is answered by what they do when they find a clear breach of conduct. If they do nothing, or rarely do anything to punish bad behavior, then they don't deserve their reputation for high standards and are, in fact, just a partisan group merely profiting off of a reputation of self-restraint.
I don't think lawyers have a reputation for holding themselves to a high standard. There is a reason that an entire genre of insulting jokes exist targeting lawyers integrity, or rather their general lack of integrity.
Prison costs us a massive amount of money. For that reason alone, I’d be fine with many non-violent criminals being sentenced to monetary punishment and community service or something else that might add value back to society.
Spoken like someone who didn't lose a chance at a house or a college program or a kid or medical treatment or a job due to a thing like this.
Fine, how about we give him a pony, it will be nicer. Hey this is cool, hyperbole is the best. So much easier than trying to actually figure anything out. Thanks for the tip.
Were his actions accidents? Mistakes? Understandable human foibles we all might make?
Is it physically possible for him to make all his victims whole by paying back money and un-fucking all the countless missed opportunities and plans etc?
The answer to both of those questions is no. So what then? Prison already is the tempered response.
> For years, Richard Liebowitz ran a very successful operation mostly sending threatening letters to companies claiming that they had infringed upon copyrights held by his photographer clients. Under the best of circumstances it’s a niche practice area that’s… kinda shady.
Why is it shady when done properly? Copyright violations are a valid concern for photographers.
The economics of it don't militate in favor of diligence and precision. An individual claim is rarely going to be for a lot of money so to turn it into a profitable business it requires scale. At which point they typically rely on automated systems with a significant false positive rate that don't take into account possible fair use etc. Meanwhile the coercion to settle applies just as much to an innocent party, because the premise is "pay a little to avoid an expensive court battle" which is still coercive even if you could win in court.
Practices that involve shaking down innocent people are shady.
Fun thing is I’ve faced the same automation of incompetence at scale from the lawyers who run Florida’s child support system. There’s a deadbeat dad out there born 10 days before me with the same first and last name. Every time I move, the automation goes into action and it takes me hiring a lawyer remotely in Florida to get it to stop every time.
I agree that running an automated system with a significant false positive rate is shady, it's just I don't think that this counts as "under the best circumstances".
I've seen cases of e.g. big newspapers publishing photos without permission and when asked politely to purchase a license reply that "you should be proud of your work being published in such a respectable establishment as ours". For a photographer in question an "expensive court battle" is an obstacle just the same and I have nothing against a lawyer who makes a living out of cases like this.
> For a photographer in question an "expensive court battle" is an obstacle just the same and I have nothing against a lawyer who makes a living out of cases like this.
That this is an obstacle for the photographer is exactly the issue. The scale is required in order for it to become a "practice area" (as opposed to e.g. a pro bono case taken on the side), and the shady practices come with the scale.
I don't see how making a living out of professionally defending independent content producers automatically translates to sending scam e-mails. Both can be done at scale but they are not the same.
Are there actually lawyers who make a living out of the former though? To not have it be so many letters that haste is inevitable, they would have to be individually large claims. Minor violations by large entities aren't worth much, major violations by small entities aren't either (because they can't pay), and major violations by large entities are uncommon because large entities can afford counsel. Meanwhile when they happen they're coveted by every law firm that likes money, so how would anyone secure for themselves enough of those cases to specialize in it?
"In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000."
It's true that copyright violations are a concern for photographers, however some online photographer communities really need to take a chill pill regarding copyright.
I've seen some photographers wanting to sue clients because they cropped or modified their wedding pictures when posting them online. "It doesn't reflect my style" is the argument I've seen excusing this behaviour. I understand that there's a creative aspect to photography, but in my opinion it's mostly linked to subject choice and overall aesthetic. In wedding pictures, the subject is pretty obvious and non-novel, the artistic choices around background / decoration are not made by the photographer, and (this is IMO the crucial point) the photographer is paid for their time while they create the pictures. This makes it pretty clearly a "work made for hire" in terms of copyright, which should be pretty familiar to everyone here.
Now, a photographer that goes out on their own, sees something that nobody else saw, captures it in an interesting way, makes a beautiful edit of said capture, and finally sells that picture on their website; that absolutely is creative work and wholly deserves copyright protection.
That's a good example. Maybe I misunderstand the meaning of "shady" but I don't see toll bridge sales as such. It's either a perfectly legitimate deal or an outright fraud. It's not some grey area when selling toll bridge is semi-legal with courts disagreeing over whether to punish you or not.
Yeah, that sentence was an odd way to start this article. Under "the best of circumstances", sending C&Ds is a pretty damn common, normal, and boringly routine thing for a lawyer to do.
> ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Richard P. Liebowitz, shall continue to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,
Is "I am an authorised representative for XYZ, and you are infringing on their copyright. Please pay us $xxxx or we will prosecute" "giving another an opinion as to the law"? I could see it being so.
It's heartening to see people punished for operating in bad faith. Real scumbag behavior seems to thrive when what they do is "technically legal" but super corrosive to the social fabric. I know it's a fine line, which is why judges and other decision makers need to be wise.
It doesn’t seem like he was punished for litigating in bad faith but rather for lying about his grandfather dying. Lying to a judge is about the worst thing a practicing attorney can do.
"Liebowitz wasn’t alone in the copyright trolling practice. A number of entities scour the internet looking for photographs that they can claim are “unlicensed” and demanding thousands of dollars to settle the matter knowing that between statutory damages for copyright infringement and the cost of litigation, most companies will just pay it. Many times, the photo in question actually is legally licensed through an agency like Getty Images, but the plaintiff photographer has, for whatever reason, pulled the image since the license was granted."
This article is so poorly written and uninformed, it conflates asserting copyright infringement against an entity that licensed the photo, with the court demanding past licenses as a means of calculating actual or statutory damages.
Liebowitz problem is that he has lied to courts several times previously, about things as trivial as scheduling issues, or the basic facts of his case as the article points out. His disbarrment has nothing to do with him asserting copyright cases, it has to do with him lying. Unfortunately the term troll is used against pretty much any photographer asserting their legal rights over the work that they own.
I think the term “troll” is generally accepted where someone’s MO is to spray-and-pray settlement demands that the troll doesn’t actually want to take to court. Given that his behavior was all related to trying to avoid demands of judges and court time, it sounds like it actually was related to his trolling indirectly.
Yeah, but look at any thread where patents are an issue, any plaintiff that isn't a big tech company gets called a troll. Also, Liebowitz had no fear of going to court, he'd sue before he'd send letters. Liebowitz was disbarred because he repeatedly lied. The issue with him not producing licenses is because they didn't support the damages award he wanted, not because he just didn't want to deal with judges or being in court. Like I said, the article is very poorly written.
Part of Liebowitz's problem was that he did ~0 research before filing a lawsuit. Often the only thing he did was send the photographer a list of URLs and ask for "GO" or "NO GO" for each one. In at least some cases there was a license that he or probably should have known about, but he didn't even bother to check. He probably would've been fine with that though if he hadn't lied to the judge(s) so, so much.
In cases like these, you need to rely on the photographer, they are the ones who will know there is a license. So him relying upon the client, who might make a mistake, wont necessarily be the end of him as you point out, which I agree with. These photographers do not have agents, and to the extent they did, it'd be Getty, who pays them less than $5 for perpetual web-use licenses. That's why so many of them leave Getty. Getty then continues to offer new licenses for the photographs, despite their contract being terminated. The article seems to mistake that as well. I'm a copyright attorney and we have the opposite approach of Liebowitz.
I try not to be hateful but dealing with attorneys every day will make you truly despise their profession. This brightened my day. Now if we could only disbar a couple million more.
> In his relatively short career litigating in this District, Richard Liebowitz has earned the dubious distinction of being a regular target of sanctions-related motions and orders. Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone. See, e.g., ... This Opinion is the latest contribution to that body of law. For the reasons stated below, the Court concludes that sanctions should indeed be imposed on Mr. Liebowitz for his repeated failure to comply with this Court’s orders, failures that imposed considerable and unwarranted costs on the Court, its staff, and Defendant NBCUniversal Media, LLC.
https://www.abajournal.com/images/main_images/Lebowitz.pdf