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Court Suspends ‘Copyright Troll’ Lawyer From Practicing Law

Over the past several years, independent photographers have filed more than a thousand lawsuits against companies that allegedly used their work without permission.

The majority of these cases, with prominent targets such as Yahoo.com, Verizon.com, MSN.com, MTV.com, Gawker.com, are handled by attorney Richard Liebowitz.

When we first spotted this emerging trend in 2016, Liebowitz told us that he was helping independent photographers to protect their rights. All too often, companies would take their work without paying, he said.

Liebowitz’ Repeated Misconduct

While that argument still holds true in many cases, the attorney himself has trouble sticking to the rules as well. In his relatively short career, courts have reprimanded and sanctioned him for various types of misconduct.

This summer, for example, in the Usherson v. Bandshell case, a New York federal court ordered the lawyer to pay over $100,000 in sanctions for violating several court orders and repeatedly lying under oath. This included a false claim that the photo’s copyright was registered when the case was filed.

In a detailed order, the court further concluded that, given the attorney’s “deplorable record,” steps should be taken to suspend the attorney’s ability to file new cases. As such, the matter was referred to the court’s Grievance Committee.

Suspended from Practicing Law

The Grievance Committee evaluated the findings recently and concluded that Liebowitz will be suspended from practicing law in the district until further order.

“After careful deliberation, the Committee is unanimously of the view that the Charges are strongly supported by the record. What is more, the Committee is unanimously of the view that interim disciplinary measures against Respondent must be put in place immediately,” the Committee writes.

The order, issued last week, notes that the measure is appropriate to protect the public from future violations. Given the attorney’s track record, this is a real threat.

“The record in this case — which includes Respondent’s repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country — leads the Committee to the view that recurrence is highly likely.”

The suspension is temporary, as the court still has to finalize the full proceeding. For the time being, however, Liebowitz will have to halt all his legal activities in the district.

Further Sanctions?

Meanwhile, the various missteps continue to pile on. In addition to the $100,000 sanction in the Usherson v. Bandshell case a few weeks ago, the attorney was also instructed to send a copy of the scathing order to all of his clients. However, that didn’t happen.

In September he informed the court that he had failed to inform some clients right away. A month later, it became clear that he failed to do so in 113 cases, which is far from a minor oversight.

Yesterday, District Court Judge Jesse Furman wrote that this additional failure to comply with the court’s order is a strong argument to impose further sanctions.

“Had Mr. Liebowitz failed to file the Opinion and Order in a handful of cases, the failure to comply might have been understandable and excusable. But the failure to file it in 113 cases is astonishing and suggests contumaciousness, an egregiously disorganized case management system, or both.”

Nothing to Deter

Interestingly, however, the Court chose not to add any sanctions. While that may sound positive for the lawyer, the reasoning behind it is quite grim. Mr. Liebowitz may be a lost cause, Judge Furman suggests.

“[T]he ultimate purpose of sanctions is deterrence and, as Mr. Liebowitz’s extraordinary record of both sanctions and noncompliance with court orders demonstrates, it is far from clear that there is any additional sanction that would serve to deter him.”

In addition, there is no new misconduct to ‘deter’ at the movement, as the attorney is suspended from practicing law in the district now.

“Thus, for the time being, there will be nothing to deter when it comes to Mr. Liebowitz,” Judge Furman concludes.

A copy of the order issued by District Court Judge Jesse Furman, which includes a copy of the Grievance Committee’s decision, is available here (pdf). Photo credit: Liebowitz image by”King of Hearts” (CC BY-SA 4.0)

From: TF, for the latest news on copyright battles, piracy and more.

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‘Copyright Troll’ Loses Legal Battle and Must Pay $172,173

Over the past years, dozens of independent photographers have taken their copyright disputes to court, accusing companies of using their work without permission.

While many of them have a legitimate claim, these ‘photo’ lawsuits generally have a bad reputation. This is in part due to the tactics employed both in and outside of court.

One of the most active attorneys, Richard Liebowitz, made a name for himself through such controversial practices. Courts have repeatedly reprimanded the attorney for various types of misconduct, including a $100,000 sanction a few weeks ago.

Another common name in federal courts is Richard Bell, who’s both a photographer and attorney. Over the years he filed more than 100 lawsuits for the unauthorized use of an Indianapolis skyline photo he claims to own the rights to.

To outsiders, these cases may appear to be regular copyright claims, but they also show the hallmarks of “copyright trolling.” The attorneys use the pressure of federal lawsuits and potential statutory damages of $150,000 to extract high settlement fees from defendants, without fighting a case on its merits.

While it’s unclear what the success rate of this practice is, most cases are indeed settled outside of court, suggesting that the strategy pays off. However, that’s not always the case. For Richard Bell it recently backfired.

Bell Sues Carmen Commercial over Skyline Photo

In 2016 Bell filed one of his many lawsuits. The target, in this case, was Carmen Commercial Real Estate Services who used the contested skyline photo in a blog post.

When Bell contacted Carmen Commercial he was offered a $1,000 settlement. However, the attorney wanted more and requested $5,000. He threatened a lawsuit if the real estate company failed to pay up.

This type of settlement pressure is not new. However, Carmen Commercial chose not to pay up and opted for a court battle instead. There, the company argued that Bell couldn’t prove that he owns the rights to the photo. And if he took it, it was made under the “work for hire” doctrine.

Bell Can’t Prove he Owns the Copyright

The case eventually went to trial where the jury sided with the real estate company. Bell obviously wasn’t happy with the outcome and demanded a new trial.

This request was recently denied by a federal court in Indianapolis. Not only that, the court also awarded $172,173 in attorneys’ fees and costs to the real estate company. This is justified, the court argued, in part due to the pressure tactics that were used.

“Defendant here offered to settle the matter for $1,000 before suit was filed. Yet Bell proceeded to trial seeking $150,000 in statutory damages on scant evidence of willful infringement,” Judge James Sweeney writes.

‘Improper’ Motive

The court correctly mentions that Bell has filed many lawsuits over the ‘skyline’ photograph. It also notes that other judges have mentioned that his motive appears to be to extract quick and easy settlements instead of protecting his copyrights.

“Here, the record similarly reflects that Bell used the threat of litigation costs to extract quick settlements,” Judge Sweeney writes, highlighting two letters where Bell threatened legal action and even higher costs if Carmen Commercial didn’t pay up.

bell threats

These settlement demands can be quite lucrative. They can reach 1,000 times the market value of an actual license, the court mentioned. The defendant, however, will always have costs, whether they choose to pay up or if the matter ends up in court.

$172,173 to Deter and Compensate

This means that defendants in these cases are at a disadvantage, so compensation for their costs, which are way higher than the initial settlement offer, is appropriate. Otherwise, it would be a hollow victory. At the same time, it should deter the attorney from filing similar lawsuits in the future.

In this case, Carmen Commercial calculated its costs to be $172,173, which the court deemed to be reasonable. While it wasn’t a quick and easy win for the real estate company, it’s certainly a big one.

As for that skyline photo which started this four-year legal battle, Carmen Commercial still uses that in its blog posts. With proper permission from the rightsholder, we presume.

A copy of Judge Sweeney’s order, denying a new trial and granting the motion for fees and costs, is available here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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Court Lifts Copyright Troll Roadblock but Puts Brakes on Piracy Settlement Bonanza

In the United States, federal courts are still swamped with lawsuits filed against alleged BitTorrent pirates.

This phenomenon, often dubbed as ‘copyright trolling’, started over a decade ago and remains ongoing.

The ‘trolling’ scheme can be both simple and lucrative. Rightsholders file complaints against “John Does” who are initially only known by an IP-address. They then request a subpoena to obtain the subscriber details from ISPs and demand a settlement from the account holder.

This tactic is also employed by Strike 3 Holdings, the most active filer of piracy lawsuits in the US. This works just fine in many cases but the company has had some setbacks as well.

Copyright Troll Roadblock

One such issue came via a devastating order issued by Magistrate Judge Joel Schneider last October which denied Strike 3 expedited discovery in several cases. The prevented Strike 3 from obtaining the personal details of the allegedly-pirating account holders from ISPs.

According to Judge Schneider, the underlying complaints included very few facts. Strike 3 has an IP-address but doesn’t know if the account holder is involved in the actual infringements. Put differently, these cases are futile.

“The most fundamental basis of the Court’s decision is its conclusion that, as pleaded, Strike 3’s complaints are futile. The Court denies Strike 3 the right to bootstrap discovery based on a complaint that does not pass muster,” the Judge wrote.

Strike 3 Appeals

Strike 3 disagreed and appealed the order, with success. Late last month, New Jersey District Court Judge Joel Hillman reversed the decision. The copyright holder is now allowed to subpoena ISPs for personal details of alleged infringers.

At first sight, this appears to be a clear win for Strike 3. However, it comes with a rather significant catch.

In addition to allowing the subpoenas, Magistrate Judge Schneider was subsequently tasked with writing a protective order to balance the rights of Strike 3 with the privacy interests of the defendants. This order, which was filed this week, puts the brakes on Strike 3’s settlement efforts.

First off, the protective order prohibits the rightsholder from making the defendants’ personal details public. Instead, they should be referred to as Does. However, the real sting comes after that.

Putting The Brakes on Settlements

“Plaintiff is prohibited from initiating, directly or indirectly, any settlement communications with defendant (or any person associated with defendant or the IP address), unless (1) that party is represented by counsel and (2) their counsel initiates settlement discussions.

“On request of plaintiff or an unrepresented party, submitted to the Court at any time, settlement shall be conducted under supervision of the Court.”

This means that Strike 3 is no longer allowed to propose settlements. While cases can still be settled, defendants must take the initiative, and only if they are represented through an attorney.

Out-of-court settlements, which are very common in these copyright-trolling cases, are no longer an option either. Everything msut be supervised by the court.

The order, more or less, requires Strike 3 to pursue the cases on their merits, something it prefers not to do. This will not only increase litigation costs, but will also require the copyright holder to have their evidence in order.

A copy of the protective order, issued by Magistrate Judge Joel Schneider, is available here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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‘Copyright Troll’ Uses Social Media Info Against Alleged BitTorrent Pirates

Strike 3 Holdings is a familiar name in US federal courts. In recent years, the adult entertainment company has filed thousands of lawsuits against alleged copyright infringers.

While many of these resulted in private settlements, Strike 3 has also experienced some setbacks. This includes a scathing opinion that was released by Judge Royce C. Lamberth.

In 2018, Judge Lamberth accused the company of being a “copyright troll,” that uses “famously flawed” technology to prey on “low-hanging fruit,” flooding the courthouse “with lawsuits smacking of extortion.”

The Judge denied early discovery, which meant that Strike 3 couldn’t find out who the subscriber of an IP-address was, something that’s crucial in their cases.

The case in question is currently being appealed, with Strike 3 claiming that it wasn’t treated fairly, perhaps in part due to the adult nature of its works. This was discussed in detail during a hearing last week at the Court of Appeals for the D.C. Circuit.

Among other things, the appeal court judges questioned Strike 3 about possible false accusations, where the subscriber on an IP-address is not the infringer. The company admitted this indeed happens in roughly a quarter of all cases. However, to determine that they first have to know who the subscriber is.

This is where Strike 3’s attorney Lincoln Bandlow provided some interesting background. To back up some of their claims, the company has been scouring social media sites for possible leads. In some cases, that helps to serve as indirect evidence.

“We have cases where we get the name and address and we can look. We found somebody who’s tweeted ‘Love your content, do more works with this particular talent, etcetera, etcetera.’ Clearly that’s somebody who likes the works and there’s reason to believe that they are the ones who have infringed,” the attorney writes.

According to Bandlow, Strike 3 conducts a substantial investigation to back up their initial claims. And if it turns out they have the wrong person and can’t identify the target, the case is dismissed. However, in order to get to that point, they need to know who’s behind the IP-address.

This position was countered by the amicus curiae appellant, which wants the district court order to be upheld. While this decision is ultimately up to the appeals court, the social media angle also applies elsewhere.

Earlier this week we stumbled upon a new case Strike 3 filed at a federal court in Connecticut, which also mentions social media.

The lawsuit in question is different from the traditional ‘trolling cases’ where Strike 3 doesn’t know the defendant. In this case, it already obtained the subscriber information through the Florida state court, which we reported on previously.

Having a name and address upfront allowed Strike 3 to dig up some extra information, more than just an IP-address, which in this case includes social media info.

“Defendant’s social media webpages establishes that Defendant is interested in…,” the complaint reads, listing a summary of redacted interests.

While the adult entertainment company redacted the details, they likely relate to adult interests, or perhaps something piracy related. Whatever the case, it shows that people who put this type of information on social media may eventually have to face it in court.

Whether the judge in this case will see if as sufficient is another question. However, it clearly shows that the traces people leave online are not always as innocent as they seem.

Drom: TF, for the latest news on copyright battles, torrent sites and more. We also have an annual VPN review.

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Copyright Troll Now Has its Own Piracy Tracking Tool

Three years ago, Strike 3 Holdings had never filed a single lawsuit, but today the company has thousands of cases on its record.

These lawsuits are being filed across the United States, targeting people whose Internet connections were allegedly used to download and share copyright-infringing content via BitTorrent.

In the case of Strike 3, this refers to adult videos that are made available via the Blacked, Tushy, and Vixen websites. The company’s legal campaign has kept the courts busy and contributed to a record-breaking breaking number of piracy lawsuits.

Last summer the company suddenly stopped filing new lawsuits in federal court, but in December its efforts started up again. While the new complaints were very similar to the previous ones, there is a striking difference.

Previously, Strike 3 relied on evidence from the German company IPP International, which tracks file-sharing activity that takes place via BitTorrent networks. However, in the new cases Strike 3 is relying on evidence produced by its own tracking system.

“Plaintiff has developed, owns, and operates an infringement detection system,” Strike 3 wrote. In a complaint filed this week, it gets more specific by adding a name for its system: ‘VXN Scan’.

“Using VXN Scan, Plaintiff discovered that Defendant used the BitTorrent file network to illegally download and distribute Plaintiff’s copyrighted motion pictures,” Strike 3 informed a Virginia federal court.

The switch to the in-house tracking system coincided with Strike 3’s hiatus in filing new federal lawsuits. It’s unclear, however, why that happened. It could be an effort to save costs or the company may have severed its ties to IPP International for another reason.

The mention of the new detection system was highlighted by defense attorney Jeffrey Antonelli who also observed another change in Strike 3’s strategy. In addition to the torrent hash, the copyright holder now lists a file-hash as evidence as well.

This addition may very well be a response to a recent order in a Washington federal court, where Judge Zilly ordered Strike 3 to pay $47,777 to cover the fees and costs of an accused man. In this case, the Judge noted that torrent hashes are not sufficient to pinpoint an infringing file.

The complaint also mentions that the defendant is not the subscriber of the linked IP-address. This case address was previously mentioned in another case, so it’s possible that Strike 3 obtained extra information about the alleged pirate from the account holder.

Whether the new complaint and in-house tracking system will be able to withstand scrutiny from defense lawyers has yet to be seen. Thus far, Strike 3’s technology hasn’t been tested in court.

That said, the description does raise some questions. According to the adult video producer, VXN Scan doesn’t “upload content to any BitTorrent user” because “it is incapable of doing so.” At the same time, however, the defendants are accused of “downloading” pirated content.

Technically, a tracking system that merely downloads content can’t prove that other users downloaded anything, only that they uploaded material. That said, the complaint would still be valid if defendants only uploaded files, when they are not authorized to do so.

All in all, it’s clear that Strike 3 doesn’t plan to halt its legal efforts anytime soon. The company previously started experimenting by filing lawsuits in county court and with its own tracking system, the related scheme may become even more profitable.

A copy of Strike 3’s complaint mentioning the new VXN Scan detection system is available here (pdf).

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