Mr. Liewbowitz is currently under a contempt order and being fined $500/day until he provides proof that his grandfather died back on April 12th, which was his excuse for missing a court appearance that day [0].
“Further, Mr. Liebowitz is hereby ORDERED to appear before this Court in person on November 13, 2019 at 10 a.m., and there and then SHOW CAUSE why he should not be incarcerated until such time as he complies with the above-described orders (and, if applicable, the instant order).”
``In an attempt to counter Seibel’s devastating dissection, Richard Greenberg, one of Liebowitz’s lawyers, said his client was “not playing with a full deck,” adding that he shared the judge’s “mystification” as to Liebowitz’s behavior.''
I'm so sick of the number of sociopaths in this world. What adult on this planet lies about the date of a close relative's death for an absence excuse, then proceeds to double down multiple times when his bluff is called?
Leonard French is a copyright lawyer that covers many cases, he goes through many of the documents in the Richard Liebowitz cases, check out his channel "Lawful Masses":
https://www.youtube.com/channel/UChBJtu4BhT8b8t9Qe9R-EZg
I assume that since the lawyer has history in front of this judge, and the judge knows he's a lying dirtbag, this is the judge's chance to get his willful, continuing deceit on record and possibly get him on the road to disbarment.
Can someone please explain to me (as a non-american) why the losing party does not have to pay legal fees? In Israel if someone sues you and they lose they have to pay (up to a reasonable amount) for your lawyer and legal representation.
The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it but I have not been able to understand it.
You've had plenty of responses, but I think a nuance is being missed. In many cases, it is not clear who will win. That is the whole point of the courts: to decide on the cases that are not immediately obvious. The big player has enough money to take the chance and try the court. Even if they lose and have to pay the winner's fees, it would not be a disaster. The small player, however, if forced to pay the winner's fees, can't afford to take the chance of a loss even if they have a very strong case. By having each side pay their own fees except in truly egregious cases, it gives the small players slightly better access to the courts than they might otherwise have.
But surely this can have the opposite effect as well. Take the case of the UK Doctor who was alleged to have joined ISIS by the Daily Mail and subsequently had his house repeatedly vandalised, had to move house for his own safety and was unable to sell his previous house for its full market value because of the ongoing vandalism incidents. The main financial damage to him was the drop in the value of his house[0] and this was less than the cost of pursuing an action for defamation which went all the way to the high court, so in the American system he would be out of pocket in taking this to court even if he won. Further, despite the high cost of a complicated legal action, he was not discouraged from taking out the action in the British system because he knew the newspaper had no evidence as he knew he was not a member of ISIS.
Note also, that in the UK the court asseses the costs to be paid by the loser, you don't just get hit with the defendants lawyers invoice, an estimate has to be submitted before the trial begins, they cannot be disproportionate to the damages being claimed and there are lots of exceptions for things like small claims court costs which are limited.[1]
[0] There was probably some emotional harm and lost earnings in there too, but the house was the big one.
The legal costs are a real damage that he can claim for. It's just that it isn't automatically a given that he would be awarded them. In a case like this, I would expect that he would prevail in such a claim. You can also be awarded punitive damages far in excess of the financial damages.
Edit: I would expect the main claim to be reputational damage with some absurdly high made up dollar value, and if the facts of the case are as you have presented them, the plaintiff would probably win a smaller, but still very high award.
Ahh, so we don’t have punitive damages. IANAL but as I understand it, it has to be a reasonable estimate of the financial loss caused. So if he was off sick from work with stress I’m guessing it would be the difference between sick pay and full pay for the period he was off. Reputation damage would need to show you lost your job or lost clients, since he probably worked for the NHS and I’m guessing he didn’t get fired or suspended this would not be a major amount of money.
You can’t even put punitive damages in a contract, so for example if you hire a builder and write that the house must be finished by date X, or they have to pay Y per week. You can’t select any figure for Y it has to be a reasonable estimate of how much it would cost to deal with the situation i.e rent another house temporarily, pay removals company twice etc. If it’s too high you run the risk of having the term struck out as punitive and therefore getting nothing.
When you say "out of pocket" you're only semi-correct as to the situation on the ground. If you don't have access to funds for a variety of reasons but are pursuing a lawsuit that a firm thinks is highly likely to succeed, then that firm may eat the costs of the trial and negotiate with you to divide proceeds. Additionally that particular case would probably be a great source of PR for the law firm representing the doctor - sometimes big banner cases, especially representing small fish against large corporations, can be worth more to the firm in the long run as a way to attract wealthy clients.
The solution, as I see it, is to fix the misaligned incentives.
A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous.
To fix this, it ought not be the losing plantif who has to pay, but rather in frivolous cases, the losing lawyer ought to pay.
Frivolity can be determined by the judge or jury (perhaps only after unanimous verdicts)
This way, it is the responsibility of the lawyer to take on only cases which have real legal merit, and stop digging for gold.
Edit: I've held this idea for a while and don't see many shortcomings. I would love to see where it falls short if someone disagrees.
> A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous.
No, they are more selective about taking on contingency cases. Every losing contingency case is hours of unpaid work.
"ambulance chaser" is a colloquial term for a reason.
I've sat on a jury for 2 days on a malpractice case that had no factual basis, that relied on a tortured interpretation of medical notes.
We unanimously decided the case for the defendant. Wish we had the opportunity to somehow penalize the lawyer for wasting everybody's time. I'm sure I'm not alone.
The only reason the lawyer took the case was that he was hoping to strike gold, and was a crap enough lawyer that only people who were turned away from better lawyers (because they had no case) came to see him.
Having to pay for the doctor's lawyer sure would have deterred this guy.
The judge can order that in egregious cases. It's not an appropriate role for juries; there are often aspects of the case that the jury doesn't see so they don't have the full picture.
> "ambulance chaser" is a colloquial term for a reason.
What's the reason, and does that reason contravene legal/judicial ethics?
I am suspicious of slang terms like "ambulance chaser" and "jaywalking" that tend to bias the listener in favor of well-funded corporate interests over individual citizens.
>reason the lawyer took the case was that he was hoping to strike gold,
I'm pretty sure that this works pretty much like spam or nigerian prince scams. If the lawyer works on tens or hundreds of such cases some % of those cases could be won and some % will settle to avoid legal costs. Total income might be high enough to justify unpaid work on other cases. I'm pretty sure that you could even partially automate a lot of things (or at least use some templates) for multiple similar cases thereby reducing the amount of unpaid work.
If the finding of frivolity was separate from the verdict, though, it could work. Set the standard as, on a unanimous verdict for the defendant, the jury may decide the case was frivolous on the standard that "no reasonable jury would find the facts as applied to the law to render a verdict in favor of the plantif". It would cause greater scrutiny but cases that have merit would still go forward.
Edit: Also the lawyer would not being charged money to work, they would be getting fined for wasting the court and jury's time. That's like saying a contingency lawyer is working without pay: well yeah, but it's factored into the cost of business. There are still chances for high payout but now there is also a much needed downside.
> If the finding of frivolity was separate from the verdict
Isn't this somewhat handled by awarding "token damages" of $1 or similar? The litigating party "won", but it was determined that they were not actually harmed as claimed.
I used to think that loser pays was a magic bullet for this, but I think that it actually makes it even more difficult for the "small guy" knowing that they may have to pay Goliath's team of 1000/hr lawyers if they lose.
If the goal is to reduce the caseload in the courts, loser pays is effective. If the goal is for the reasonable access to everyone of the courts, the current system is (I hesitate to say this, but) better. I also think that when you have a class of worker(lawyers) who's job is to read/interpret/test the boundaries of/defend the law of the land, you will always find some people who figure out ways to game the system.
Reducing the number of cases probably should be a goal, and the reasonable way to accomplish that would be for judges to be much more aggressive in dismissing bullshit. Some judges are satisfied with lifetime appointments to their current courts. If they aren't, either because they seek appointment to a higher court or because they face reelection campaigns, they have to worry about pissing off their biggest donors. Those, of course, are the lawyers who appear in their courts, who have very little interest in reducing caseload.
> Reducing the number of cases probably should be a goal, and the reasonable way to accomplish that would be for judges to be much more aggressive in dismissing bullshit.
An even better way would be to eliminate laws that let people be hauled into court when they have done no harm. A huge example is the war on drugs: criminalizing mere possession of drugs, with no requirement that the person has to have harmed anyone, means a huge number of drug cases cluttering up the courts that shouldn't even have gone to court at all.
>more difficult for the "small guy" knowing that they may have to pay Goliath's team of 1000/hr lawyers if they lose.
as already posted in this thread, many countries solve this by putting a treshold on this amount to be repaid by having fixed rates for legal costs (you have to repay the legal costs but not more than those fixed rates)
What you actually want is "big guy pays" - if the loser has more than, say, two or three times the annual gross (before tax deductions or writeoffs) income of the winner, they pay the winner's legal fees. "If the winner spent more on legal fees" might also work, although I'm worried about how that would interact with contingencies and retainers.
Originally (in the 18th century), legal fees were regulated by the state (/colony), and these fees would be borne by the losing party. But these fees were rather miserly, so the legal profession argued for the ability to charge what they wanted as a consequence of freedom of contract. By the mid-19th century, the courts relented and permitted this, but cost recovery was limited to the miserly fees permitted by legislation, and it was felt unjust and unfair to have the losing party bear costs they had no control over. After some vacillation, the courts eventually agreed that costs could be recovered, but only if the legislature rather explicitly allows for it in law or statute.
In the US sometimes the losing party does have to pay ("The British Rule"), but as you note the American Rule is the default for most situations. The British Rule tends to close the door to the courthouse for many aggrieved individuals and bad situations, as would prohibiting contingency fees and class actions. You haven't advocated those latter limitations but they're often fellow travelers in British Rule arguments.
Well, one drawback to the losing party paying legal fees is that it disincentivizes "small" parties from suing larger ones, since they are more likely to lose and less likely to be able to pay.
Germany has fixed attorney fees to solve this problem. There are other measures to reduce this problem. I don't understand them fully, so I won't be more specific. But it kind of works out in the end. You can't just hire an oversized army of lawyers and dump the bill entirely on the losing party.
It seems that Poland has a similar solution* - there are fixed rates and a losing party covers the fees up to that fixed rates. That is anyone is free to hire a lawyer at any rate but the loosing party will have to cover the costs but not more that those fixed rates, so effectively those rates are an upper treshold for repaying legal costs. Additionally a judge may decide that a loosing party does not have to cover those costs - depending on their financial situation (this is a bit more complicated, but since I am not a lawyer I don't know the details here)
*I'm quite sure that this solution in Polish legal system was modelled after the German law.
The "more likely to lose", yes; but even if the system was perfectly fair, the result is not always obvious beforehand (otherwise we wouldn't need a trial in the first place!), and the risk may be too high for a poor litigant.
And in the other way, the power of money outweighs correctness (to which we should add, in both cases, "some of the time.") This is a genuinely hard problem with no clear optimal solution.
As was said, the countries where the losing party pays usually have tables where you can find the legal fees and the maximum amounts that the losing party has to potentially pay.
It would make sense if the amount you have to pay for the other party's legal fees can never be more than what you paid for your own legal fees. That way, a small party fighting a big one will at worst double their legal costs (though that can still be a lot), and if they're sure they will win, they can afford to spend whatever is necessary to get there, because it's still going to be less than what Big Corp is going to spend.
But that's also the big risk: if they're sure they're going to win, spend big to ensure that victory, and then still lose, then they lose far more than they can possibly afford. It's a very risky gamble.
It does, but it also creates an investment opportunity for cases where the chance of winning is high.
The problem with each side paying their own fees is that there is no such beneficial investment scenario for the party that eventually wins. it's all pure losses and then you win but are not really compensated for the financial cost of defense.
It's not obvious that the losing party should have to pay the legal fees. (By that, I take it you mean lawyer's cost, not court costs.) To a measurable extent, success is based on ability to pay. If an individual is sued by someone with corporate counsel or a relatively poor person is sued by an incredibly rich person, should they be made to pay twice?
It also would invite too many disputes into the courts, since an aggrieved party could feel it's almost free - the person who hurts them to the tune of a couple of hundred dollars will have to pay tens of thousands and they get nothing. It is possible that some disputes have a genuine good party and a genuine dodgy party, but in many cases they're just people who life happened to. The loser should compensate the other party but not necessarily get punished. If the loser was being malicious, they should be made to pay. But we shouldn't assume the loser is malicious, just that they lost.
It seems to me if you want the loser to pay, you'd have to create a regulated system for costs in order for them to be fair. A clever lawyer might have a way to take additional payments, but they'd have to be outside of the system, not recoverable by the court. But doesn't that end up in exactly the same situation as before?
In Germany a regulated system of costs exists, the amount of compensation you pay to the winning party is capped and uses a fixed hourly rate equal for both parties.
You can't pay them significantly more, for certain court cases (especially for copyright violations) there are hard caps on a number of fees the attorney can raise. Plus you can get a significant sum of the cost paid by the state, even IF you loose.
In a way, but the downside to the losing party is limited.
Also in (at least some of) these systems, it is not an automatic order for the losing party to pay, the court can decide to order it or not.
I don't think there really is any feasible way to prevent rich people and companies to have access to more/better representation.
>why the losing party does not have to pay legal fees?
Google harms me in some way. I sue them. They throw an army of lawyers at the case. It takes years. Google wins, case dismissed. I should be on the hook for their legal fees?
Believe it or not, the last thing we want is to discourage people from thinking they have the ability to sue people who harm them. And suing for legal fees is also common practice.
Patent trolls are a problem with the law, not the legal system. They are also entitled to sue people violating their patents.
> Google harms me in some way. I sue them. They throw an army of lawyers at the case. It takes years. Google wins, case dismissed. I should be on the hook for their legal fees?
That's a separate issue from whether the loser pays: even with automatic loser pays (or in the situations where the loser pays even in the American system) limitations to “reasonable” costs (or actual specific legislated caps) are possible.
Losing party paying everything is perhaps even worse than each party paying its own costs. The correct solution, as implemented in some countries, is that if a party was behaving unreasonably, for example by refusing a fair offer to settle out of court, then that party pays the reasonable costs of the other party.
Easy solution; fix attorney fees to a reasonable value, then the payout is done adjusted for 1 attorney. So if you loose against a large company, the worst that happens is you pay twice that of your lawyer; once for your lawyer, then for theirs.
That's the solution in germany and it works quite beautifully (sans people intimidating others into believing they'd loose).
So first thing here is - you accept the principle that the winner should pay their own costs. Since as you say, if the company has five lawyers, they have to pay for four of them. So there's no real difference. If they hire ten lawyers, and your lawyer says "I need help to do it" you're screwed - either you pay the extra lawyer out of your own pocket, or you ask your lawyer to do the best job they can do. The difference is just how much shit flows in when you open the gate - not how much shit is there, or which direction it flows.
In Germany you have to buy insurance against getting sued. I mean, you could call that an indication of a beautifully working system, but I call it an utter failure.
> In Germany you have to buy insurance against getting sued.
That is incorrect, and what's more is that I have no idea where you're getting this from (it's possible that certain professions are required to buy extra insurance, but the only universally mandatory insurance in Germany is the health and social insurance).
I forgot the link? That's somewhat embarrassing. I just went with the first search result, a statista link [0] (and the free trial certainly doesn't offer much more info). Most other links right now seem to be related to complaints about that type of insurance o_O
> correlates to the total number of actual customers
Hard to say. Companies can have them, but I doubt there are 22m. Families can have them and cover multiple people at once. Germany's population is only 82m, so 22m just sounds like a lot to me.
Even if you are ultimately paid back, you first have to win the case. Until that happens, you have to foot the mounting legal bills. And there’s a plethora of possibilities for lawyers (especially in the US legal system, but others offer some as well) to drag the case on almost indefinitely and rack up costs. Documents seem to be one of the usual ways (demanding lots of documents from the other side, or flooding them with truckloads of largely irrelevant documents).
Simply making sure the case takes as long as possible to be concluded and costs as much as possible works in practically any legal system as a way to gain an unfair advantage if you have more money to burn than your opponent.
> Can someone please explain to me (as a non-american) why the losing party does not have to pay legal fees?
The losing party doesn't automatically have to pay legal fees (but may be ordered to in certain cases) because, the theory is, that there is a space where a party is clearly wrong to even litigate, and a space where a party, even if they are legally in the wrong, is not so clearly wrong so that it is wrong for them to litigate to determine their rights, and that justice is best served when potential litigants with a reasonable case are not discouraged from litigating to determine their rights.
> The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it
The alternative to that is to increase the ability of a wealthier party to commit a wrong and leverage the irreducible uncertainty of a human justice system to intimidate a less-wealthy party to accept the outcome and not litigate, because of they are unsuccessful they will have a guaranteed high additional cost on top of the sunk cost of the harm done.
> In Israel if someone sues you and they lose they have to pay (up to a reasonable amount) for your lawyer and legal representation.
It's very common in Israel for the judge to rule that each side cover their own legal expenses (e.g. if the ruling is in favor of the defendant, but the lawsuit isn't frivolous).
Court access being determined by financial resources immediately delegitimizes the court. The solution is to ensure fair access without costs and ban any influence beyond that.
Imagine if we forced a child to pay a police officer before the police would investigate claims of abuse.
This is probably meta in the uninteresting sense but, thoughts:
1) many trolls who focus purely on shakedown settlement letters, Liebowitz runs straight to court to leverage the power of an expensive court case to push for insane settlements. - - Worrying. Why isn't there a bugfix coming? If the court system is so obviously exploitable...
I guess shutting down a troll business model is better than nothing, but.. This just basically shooos the problem away from courts and back into the expensive exchange of threatening letters... which is also and abuse of the legal system.
2) IP laws are important, and growing in importance as "intangibles" becomes a major class of assets, by way of corporate books. Just IP related lawyering (contracts, advice, courts, judges...) is a massive industry, nevermind the stuff it lawyers about.
Precedent is not really supposed to be the tool for this job, is it? Laws need to be written to be enforceable logically. At the least, they need to avoid creating obvious messes like patent trolling. I'd argue the sheer level of lawyering (measured in €) a type of asset attracts can be a sign it's been poorly defined.
Precedent is a way of writing laws. Basically legislation is usually not so detailed, nor even necessarily capable of being so detailed, to handle every singe case. Precedent makes judges decisions predictable, since judges are bound to continue doing what they've already done until the legislators (or a superior court) changes that. The alternative is the French system, where each case is taken separately and you can't really be certain how the decisions are going to be made (except that they informally apply a precedent like system). I don't really know if the terminology is right here - basically, the judge has said "there's already a fix in the system for this woe, maybe we should use it..."
I'm not really sure what the alternative dispute resolution process your talking about is. Are you suggesting a mandatory licensing fee system like radio stations use?
The alternative isn't civil law. The alternative is legislation, cleaner legislation preferably... reform even. It doesn't need to be on a massive scale, but it needs to do at a legislative level what this judge did/tried. Find a way that this type of copyright enforcement isn't ordinarily settled in such a lawyerly way.
His approach isn't bad, it's just outside of scope to do it properly via precedent.
There's legislation in the matter. The precedent is just that it can be used, also in this case. Or you're proposing trolls should keep trolling till the congress considers it important enough to write a law that says "the law we wrote applies in this case, also"? At what point does it stop? Must Congress foresee every action before it happens?
The alternative isn't civil law and I didn't say it is. I said the alternative is not being able to predict the judge's decision expect for the fact that they're following precedent unofficially.
Do you think a legislative remedy is likely given the current state of our legislative branch? I for one am glad the judicial system has the ability to reinterpret old laws in new situations, because we would end up with anarchy and confusion if we had to wait for congress.
They're important in the fact that they do immense damage to our economy, with perverse incentives and rent seeking everywhere.
There is little no evidence that IP improves innovation or even benefits creators as whole. There are instances like this all the time showing what a terrible system it is.
Copyright and patents shouldn't exist at all, and especially shouldn't in their current capacity.
Copyright shouldn't exist at all? If you write a song or a book, or film a feature film, you should be able to sell one copy (and then cheap copycat commodity production can take over) and that's it?
Your argument is ”Corporate/Govt Sponsors, Kickstarter, and Patreon exist”. That’s fine and all, but they have their own problems.
A one-time funding model like sponsorship/grants and Kickstarter is fundamentally un-meritocratic. Money is given to promises of quality or broad appeal, not the actual attainment of it.
Patreon/subscription presupposes either a serial format or long-term commitment to producing many works. Attempting to use periodic small donations to fund a single long-form / high-labor work adds a burden on the creator to maintain a circus of “progress updates” and unrelated “rewards” to make the petty donorati feel adequately compensated for their “generosity”.
There tends to be a mindset of "we can't replicate every current business model without copyright, so it must be preserved." That's a false argument for two big reasons:
1. Creativity adapts to the environment available. The guy who whines "I can't make my artistic vision without the current licensing/copyright financing model to bankroll it" isn't that different from an artist in 1600 whining "I can't make my vision because CNC milling does not exist." If you want to tell a story, you'll find a way to make a go of it with the tools you have. Maybe you'll have to make a lower budget version, or come up with an installment format to make it viable-- sometimes it's the constraints that give creative works their charm.
2. Could we be missing out on entire new styles of expression because of copyright? Collaborative and evolutionary works, especially at scale, has always been touchy under a regime that requires attribution and ownership. Maybe the Great American Wiki replaces the Great American Novel. Voluntary open licensing doesn't actually help there-- compliance is still complex, expensive, and time consuming, even if it's done with a good intent.
As for crowdfunding, I'd say it's extremely meritocratic once bootstrapped. Once the system has been around for a while, it becomes clear who delivers.
That is not my argument. My argument is that supporting this one form of monetization does not justify the existence of copyright. Tons of creative work exists outside that system now and existed long before copyright was a thing. Additionally, the negative aspects of the system far outweigh any monetary benefits creators may see from it.
Donations and patreon, etc, sure, I can buy... but I don't think they'll pay for a feature film with a $150M budget.
Basically all the others require some sort of publisher exclusivity or friction on republishing that just doesn't exist today.
I also fear that ... trying to get exclusivity through restrictive contracts in the absence of copyright protection could be a cure worse than the disease.
> Films get a majority of revenue from the box office.
Which would no longer be protected from others obtaining copies of the film and showing it.
> They could sell high-quality masters to streaming services, etc etc
Which then can be legally streamed by anyone else immediately.
> People will pay to get a lot of art in one place, to get it in guaranteed high quality, and to get it quickly.
Yes, and anyone else can take this role of curation. Curation is cheap compared to creation. A 17 year old quality-compulsive downloader goes a lot of the way to having performed this function ;P
> Except the difference is that contracts only apply to those who agree to them.
Yah, so once someone breaches contract everyone downstream can have the content.
> Which would no longer be protected from others obtaining copies of the film and showing it.
We already live in a world where piracy is rampant, and yet rarely if ever are theater-quality copies of movies available. People have to record the movie with a camera to get it out there before the home video release.
Studios manage this by using proprietary formats and blacklisting theaters who fail to control their copies correctly. And theaters have a vested interest in those copies not getting out as well because that would cut into their revenue.
It does not at all depend on copyright protections for theater exclusive showings to exist.
> Which then can be legally streamed by anyone else immediately.
Yes but that relies on a competitor taking the time to rip their copy and upload it across all of their servers. That takes time so for live broadcasts like where an episode of Game of Thrones goes live and everyone wants to see it, they'll be behind the ball.
We already live in a world where you need merely search for and download the torrent to achieve the same thing you're saying will run rampant without copyright. This is already the way it works, but people still use streaming services because they're convenient and offer exclusive things they can't get elsewhere.
> Yes, and anyone else can take this role of curation. Curation is cheap compared to creation.
Wow you mean consumers won't have to buy ten different services to view what they want? That would be amazing!
> Yah, so once someone breaches contract everyone downstream can have the content.
Yes, just like our current world. Any contract with end users would be impossible to enforce just like copyright is now.
> This is a good thing.
What you're saying is that the fact that someone who has had no interaction with the creator, agreed to nothing with them, and caused them zero harm can be liable to the creator and even criminally liable is a good thing. Incredible.
> People have to record the movie with a camera to get it out there before the home video release.
If a party who got a copy illicitly could commercially distribute it in competition with theaters (i.e. someone who has profit motive) I think you'd have a lot more of this.
> Studios manage this by using proprietary formats and blacklisting theaters who fail to control their copies correctly. And theaters have a vested interest in those copies not getting out as well because that would cut into their revenue.
So you're effectively conceding that if we squash copyright, we'll have a whole lot more reliance on DRM and proprietary exclusion. I'm sorry, I think that's worse-- I'd rather give authors protection for their creations for a limited time (maybe 20 years + another 20 years with a steep renewal fee paid? or 20+10+10+10) than deal with that.
> Yes but that relies on a competitor taking the time to rip their copy and upload it across all of their servers. That takes time so for live broadcasts like where an episode of Game of Thrones goes live and everyone wants to see it, they'll be behind the ball.
I might have bought this argument in 1990, but what fraction of people watch content live anymore?
> This is already the way it works, but people still use streaming services because they're convenient and offer exclusive things they can't get elsewhere.
Sure, but I could curate a nice copy of everything on Disney+ for half as much if it wasn't legally prohibited.
> Wow you mean consumers won't have to buy ten different services to view what they want? That would be amazing!
So you are conceding that commercial services will no longer be viable in charging for content.
> Yes, just like our current world. Any contract with end users would be impossible to enforce just like copyright is now.
It nicely tamps down commercial infringement and the associated high-quality curation which would render monetization of content unviable.
> What you're saying is that the fact that someone who has had no interaction with the creator, agreed to nothing with them, and caused them zero harm can be liable to the creator and even criminally liable is a good thing. Incredible.
"Zero harm" is debatable, and it depends on your philosophical stance about this.
Note that criminal liability generally involves commercial infringement, too.
I believe that people should be able to profit from things they create. That's the idea with copyright: they're entitled to an exclusivity period in exchange for the work eventually belonging to society as a whole. It's the latter part where we've lost our way: terms are way too long.
The court system isn't there to turn someone's mistake into your pay day. It's there to put things back to order. It's like when you have information and ask for a favor. You can ask for a favor, and you can publish the information. But the moment you link the two, it's unlawful blackmail.
Copyright infringement is a tort, and statutory damages are provided for precisely because the legislature wants people to get a pay day in such cases.
To me, the simplest indicator is ration of lawyering/other stuff in a business model.
For or the purposes of this article/case, I think we can just go by "this was trolling and trolling is bad" based on what the judge said & ruled. Not sure how interesting the "is trolling bad?" question is irl.
The judge hasn't said the case is frivolous. He's just required to post a bond in case he loses.
This guy is notorious for filing large numbers of cases. That doesn't mean they're meritless. He does this for many different clients, and those clients have their own businesses. It's not like he's buying up copyrights to sue or anything.
* It's not like he's buying up copyrights to sue or anything.*
Effectively, he is. Whether it's buying, licensing or taking an option (what he actually is doing)... he's basically acquired the right to sue for money and keep the earnings. The troll business model is the same whether he's formally representing clients for a (presumably large) cut or buying up portfolios.
I mean what I said above. A business model whereby (1) one sits under a bridge made of copyrights/patents, or options to that effect and (2) uses the legal system (usually letters, but also litigation/etc.) to bully settlements out of passers-by.
In this case, (1) get the right to sue for profit on photos. (2) Find an infringer or grey area (3) sue (4) Try to get a settlement smaller than likely damages.. because "it's cheaper and less scary than court."
Did you read the article? The precedent is only relevant because the defendant will incur $100k in legal fees to defend against likely damages of $1k, that he'd/she'd already agreed to settle.
This is literal trolling, bridge, big teeth and all. He doesn't care about the damages/rulings, all he cares about is causing enough legal costs to bully the defendant into a settlement.
1. For the third time, the business model is licensing images.
2. "The precedent is only relevant because the defendant will incur $100k in legal fees to defend against likely damages of $1k, that he'd/she'd already agreed to settle."
If they believed damages were likely to only be 1k, they'd have taken the offer. Their calculation neglects statutory damages. https://www.lexology.com/library/detail.aspx?g=6f0de0d0-e0a7... is another case from the same lawyer where statutory damages of $2500 were awarded.
If you're entitled to $2500 (for argument's sake) and the other side makes a maximum offer of $1000, rejecting can be reasonable. And if you turn out to win less than $1000, sure, pay for the other side's fees.
FTA, stated by the judge in reference to Liebowitz: "His litigation strategy in this district fits squarely within the definition of a copyright troll."
She. The cases do not need to be frivolous. Exploitative behavior is all that is required. In this particular case, the defendant immediately removed the image when notified and offered a the photographer 5 times their usual licensing fee. That is an extremely reasonable resolution given there is no evidence that the defendant profited from its use of the image.
Attempting to further pursue the case after a reasonable settlement was offered is an attempt to use the court extrajudicially as a means to be financially punitive. That is the reasoning behind part (d) of rule 68 as referenced in the article.
Rejecting a rule 68 offer doesn't imply the offer was reasonable. Statutory damages mean that licensing fees are not necessarily the basis for damages.
Also, it's up the client to accept any offer, not the lawyer.
Again, given the defendant's compliance, reasonable offer, and the judge's obvious distaste for the whole ordeal, it is unlikely that they would be awarded anything but the minimum for both statutory and actual damages which would result in a smaller payout than the original offer.
Also, sure, the rejection alone may not imply that the offer was reasonable. However, the fact that this is apparently a common pattern of behavior, to the point that the judge (who has heard his cases and is familiar with his antics) decided to put their foot down, implies that the offer was reasonable and that Liebowitz is attempting to use the court for his own gain.
Right. People are overlooking that "Democracy Now!" _did_ in fact use someone's photo without pyaing for it. What I got from reading TFA is that they didn't challenge that and offered to settle.
This is different from a patent troll where patents are subject to interpretation.
The article (or the judge) didn't overlook it. The whole basis is that Democracy Now made a reasonable settlement offer.
The point of the article is that the copyright infringement is a mouse to the trolling elephant.
The lawyer basically offers a risk free offer to clients en masse where if he finds someone to sue, you'll get a cut. He basically gets enforcement rights to a portfolio.
Then, he finds targets (who ideally did use someone's photo without paying for it) and threatens to drown them in legal costs. Settle big or we keep going. Now they're under legal attack, expensive and scary.
Then, it turns out that this massive trial generating >$100k in legal costs was over a stinking $1000 that the copyright owner/troll could have had months ago.
Where are you seeing that in the decision? If they thought it was abusive, they'd throw it out. Requiring a bond to be posted is not the same as finding it to be abusive.
"In April 2019 Leibowitz missed a court date in a copyright lawsuit. He told the court that he missed it due to the death of his grandfather. The court asked him to prove it, suspecting he was in fact missing hearings to run up legal costs for his opponent. As of November he has failed to do so, and is being fined $500 a day and threatened with incarceration.[6]"
The judge has lost all respect for him, it's incredible. The order for him to appear has a footnote "if you're already required to appear somewhere else, you better attach the proof".
That's got to be the most blatant case of contempt I've ever seen. Impressive how he continues to try to bluff himself out of this despite the judge constantly calling his bluff.
People are really impressed with the judge but I am not so Pmuch. He should be in jail already. Our justice system quickly finds excuses to incarcerate or worse, for much less, for "lower classes" of people.
I'm very much okay with judges being extraordinarily careful to preserve people's due process rights. There's not really any significant time pressure involved - if it takes an extra month to make it abundantly clear that they're willfully and knowingly defying court orders, so be it.
Fair point. Plenty of people don't even get a second chance and get incarcerated on very questionable evidence, whereas this guy got five tries despite obviously lying.
This is great for things with clear value, such as a photograph you are already licensing for a specific fee. However, I can't imagine this is very effective for anything less clear-cut, as it seems hard to guess what the settlement will be.
I assume that the risk math will differ by case, but...
The way "trolling" generally works is by negotiating settlements while brandishing a credible threat of legal expenses, not judgements awarded by courts.
What this discourages is threatening a $100k lawsuit to win a $3,000 in damages. I guess once and offer (you could offer $10k, to be safe) the troll risks paying a lot of money if it goes to court and it turns out that he shot a legal mouse with a nuclear torpedo.
Plaintiffs don't really have any trouble coming up with valuations when they initiate the lawsuit. Their challenge is to make it to the end of the litigation process without having too many digits lopped off their initial number.
This case is about the defendant benefiting from unambiguous public information about the market value of the works, since the law provides them with some protection when they make a reasonable settlement offer but are forced to continue litigating instead.
> It's not really about the offer being made on the basis of public information though, is it.
The fact that it's based on public information puts the valuation's reasonableness on a very strong foundation, and allows the defendant to be far more confident that their offer will actually exceed a fully-litigated award.
> If the eventual settlement is less than the original offer, then the plaintiff is liable for costs...
But only if the original offer is reasonable. The basis of public information just makes it easier to support the claim that the offer is in fact reasonable.
Does this mean that in the case that you're sued by a copyright troll you can offer to settle for $1 and then if they take it to court and get nothing at all (because they don't actually have a solid case) they're now responsible for all your legal fees as well? Because if so that seems like a good way to deal with copyright trolls, since it makes the risks a bit more symmetric.
Aren't there some situations where you can ask the court to determine damages? Pretty sure I've seen this before, though I'm not sure in what context (it may not have been copyright).
It's basically legal malpractice to not ask for whatever extra awards the judge finds appropriate in the case after asking for the damages you're mainly after
What do you mean without any parameters? They had the whole legal argument in which both sides will have tried to convince them of what the right amount is.
It's quite a number of years ago now, but a friend of mine did jury duty on a civil case and they were just told to come up with a figure, so they all just picked a number a random and split the difference between the highest and the lowest. The rationale being that this would be a starting point and there would be further litigation to determine what was "fair".
I think that was Ireland in the 80s or 90s though, I'd "imagine" things are approached with a bit more rigor these days ...
Properly registered copyrighted works invoke statutory damages which are designated by legislation. Several hundred thousand dollars per infringement.
Legally speaking this is no different than you selling copied DVDs on the street corner and Sony catching wind and coming after you for damages. They're not going to ask for $75 (five times a $15 disc), they're going to ask for statutory damages for each infringement you've made (potentially per song for a CD, etc).
This guy has just made a business out of monetizing that for clients who can't be bothered to do it for themselves. A true entrepreneur in the spirit of HN, find a niche that your clients don't want to do for themselves or are not capable of doing for themselves, and monetize it.
This is much less cut-and-dry than patent trolling, where the real problem is that the patents should never have been issued in the first place. He's representing real clients whose works have really been infringed, and by statute they are entitled to large damages. If you want to fix that, go after the concept of statutory copyright damages.
I love Democracy Now but if they want to use this guy's photos they should approach him for licensing, not just use them and cry about the damages when he or his lawyer comes after them.
We do not need to set up a two-track system where Disney gets $300k per infringement and a small photographer gets $500 per infringement.
I used to be a news photographer and had this happen to me before. My “deal” with the publication: pay me my normal rate for the photo and hire me for a future assignment. Turned out I had a pretty good relationship when them after that. A win-win for everyone. But just going for the jugular is counter productive: you lose out on a future customer by attempting to destroy them in court over a $220 photo.
It seems the photographer is as responsible as the lawyer in this case. I'd expect he needs to give his approvement to reject the initial offer. Also "Mango sought bankruptcy in 2004, and records from his bankruptcy filing show that his liabilities greatly exceeded his listed assets", so sounds like he's trying to make some easy extra cash, that turns out not be so easy.
This lawyer is about to go in to court today to explain why he lied to a federal judge no less than four times, and was also accused by another of his clients of forging their signature and submitting it to the court.
Who knows what he’s told or has not told this client.
I think you're underselling it a bit. He's going before a federal judge, not even for the lie itself but for failure to provide documentation to prove that lie. He's facing increasingly severe monetary sanctions and possibly imprisonment tomorrow even if he actually could provide a death certificate that substantiated his earlier claims. We haven't seen the full extent of the blowback from that lie yet even if he comes clean today there's still more to come.
Oh yeah. I’m not a lawyer myself but when I’ve read about other shady lawyers the message is always seemingly the same: justice can be slow but when it comes - especially at the hands of a federal judge who you lied to, multiple times - you should be happy if the only outcome is that you never get to practice law again.
I only want to highlight the client may have very little to do with the case and what’s happened with it so far, as everything this lawyer has done is out of the bounds of the legal system. I don’t think the average person is equipped to deal with the impact of a lawyer who is themselves a criminal.
Well, you hire a lawyer because you're not sure what to do. If your lawyer says, "In this case, I'd go forwards - there's not a lot that can go wrong, I've done it dozens of times before" then you probably go forwards. I wouldn't ascribe too much to Mango.
Democracy Now! _did_ use someone's photo without paying for it. What this man does which is nasty is instead of simply pointing it out and asking for their fee for licensing, he goes directly to court and asks for much more.
I think that's what's being missed in this. DN ripped this guy off and published his photo without paying him for it. When he does the work of tracking them down and figuring it out, AND after he went to a lawyer to go after DN, they offered him their standard fee plus a couple hundred bucks for his trouble. And when he's not satisfied with that, he's the bad guy.
This apparently happens enough for there to be a cottage industry of lawyers going after big publishers who are ripping off small-time photographers. It seems like this whole thing needs serious reform, but probably not by going after people trying to get paid from a big org using their work.
DN did infringe, and when called on it, they immediately pulled the photo and offered 5 times the photographer's highest recorded fee charged per photo.
The photographer felt $1100 was insufficient, and took DN to court. (Apparently, based on the discovery requests, with an intent to rack up significant legal fees for DN.)
So yeah, I'd say the photographer is the bad guy. Or has bad lawyers. Maybe $1000 for a $200 photo isn't enough, but it's probably the sort of thing that could be negotiated reasonably rather than heading straight to court.
I don't think anyone's debating that the lawyer is a bad person. But why not take a big company to task? This is a serious ongoing problem for photographers these days. I highly doubt this is the first time this has happened to this photographer. And I doubt it's the first time DN has used someone's photo without permission.
You could maybe make a case like this for someone like DN, which is a nonprofit. But do you really want ABC News Brought To You By Disney to be able to use your picture of some newsworthy event in their primetime TV show for free? They're not giving away those ad spots for free in service of the public interest.
My main concern is that it is in societies best interest to make the cost of reporting news low. Would be horrible to be in a situation like "all the good pictures of this event cost at least $2000, so if you won't pay for that, your audience can't see a visual of it"
Do news agencies have to pay royalties on pictures which are 'adversarial'? ex. Trudeau in blackface? Seems like there are a class of images which society benefits from having them be free and not subject to intellectual property restrictions.
Seems like capping royalties as a proportion of revenue earned by ads on that broadcast would be a sensible method of addressing this.
I feel like their willingness to pay any sum implies that they know they should have had permission/agreement beforehand.
I can't quickly find details about the context of the photo's use. They might be out there, but if so they seem buried in legal briefs, from what I can tell. My ability to read such dense documents isn't great, unfortunately. I get too bored with it. Similarly, I'm not super knowledgeable of all the ins and outs of fair use (which I believe is what you were alluding to), but it seems fairly nuanced and does not seem to give news organizations a blanket exemption.
Seems like $1100 could very well be insufficient. The photographer had to do the legwork of finding out that DN used his photo without permission, go to the trouble of getting a lawyer involved, the lawyer has to get his cut of the payout, etc.
The time to reasonably negotiate fees is before you post the guy's professional work, not afterwards.
The lawyer could challenge Rule 68 (settlement being 5 times cost). As long as he can win on that point and 1cent more than the 5 times settlement figure, Mango the photographer doesn't have to pay Democracy Now legal costs. Besides Mango maybe able to prove his costs in tracking down copyright theft is greater than 5 times, which will make Rule68 seem out of date. For example, there might be a company offering copyright theft tracking services which could inflate the costs making the Rule68 5 times settlement out of date.
Rule 68 isn't where the 5x cost figure comes from. The 5x figure was simply chosen by this particular defendant as their guess for what would be safely above what the plaintiff was likely to be able to win.
This is super confusing because in the US lawyers are members of the bar, but are not refered to as barristers. As an American I've only ever heard the term "disbarment"; never "struck off".
I'm sure you've heard the term 'hanging judge' in movies.
The last time frivolous lawsuits were getting a lot of journalistic attention I would joke to my friends that if I ever became a judge I'd cite people for contempt of court for bringing in bullshit cases. I'd easily set a record for number of citations.
A very nice project, but the sooner they add monetisation feature the better. I think ability to sell ads should be closely tied with federation. One of the main reasons why there is so much content on Youtube is the ability for content creators to make money off their videos.
Peertube has a chance to be a serious become Youtube competitor only if there is way to add ads to videos.
Also a way to have donations a-la patreon would be great.
[0] https://reason.com/2019/11/07/the-judge-and-the-suspicious-d...