12 ms·

Copyright trolling cost me a fairly successful blog my wife ran. The ads paid out more than hosting cost! She had shared an image from a girl who took the photo

Copyright trolling cost me a fairly successful blog my wife ran. The ads paid out more than hosting cost! She had shared an image from a girl who took the photo with permission, but then that girl sold the photo to a copyright troll who then sent a demand letter. Either pay a yearly license of $1750 and a back-pay for the 4 years it had been hosted, or get sued. I retained a lawyer to prepare for lawsuit because we were given permission by the author to use the photo, had email proof. But after a few months of back and forth, we ran out of money to keep fighting and had the lawyer negotiate just killing the site.

float4 5y ago
Atrocious that such a trivial case cost you so much money that you actually lost (not strictly, but it must've felt like a loss). My dad is currently suing has past employer (the state). It's taken two years so far and they try to screw him over in whatever way possible. Luckily the union is paying for his lawyer, so he doesn't really care. As someone in his early twenties who knows very little about law, the way such cases go down is mind-blowing to me.
copywrong 5y ago
Perhaps naive… but in a case where it is so plain that there is no case to answer, what is the rationale behind hiring lawyers rather than simply filing court documents yourself if they _do_ sue? The copyright troll was looking to make money: shutting down your site didn’t do anything for them — it was likely just a negotiating tactic that went awry when you called their bluff (actually shut down the site).
- a4isms 5y ago
  The fact that we ask this question leads us to asking, “Who is the best person to answer the question of whether it’s a good idea to file the documents yourself, and if so, how things are likely to go over the next ___ years of litigation?” And the answer is... A LAWYER EXPERIENCED IN COPYRIGHT AND INTELLECTUAL PROPERTY LITIGATION. That answers your question for me. In cases roughly similar to this, I have begun with a lawyer. Yes, there are two times I recall where they said, “Do it yourself, but watch out for X or Y, and call me back if Z.” That alone justified what I was paying for the first proper, clock is ticking, consultation. What happens after the first consultation would depend upon the case. INAL, YMMV, &c.
  - tehwebguy 5y ago
    IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you. When hiring one of the best attorneys to defend the type of action brought I had to be very clear about what they were to do in between our calls (ask the third party to agree to drop it if we get plaintiff to drop it, ask plaintiff these questions, if they don’t do X we will do Y, offer them Z). It was also important to stop them from taking pointless actions that would have cost tons of hours: do not read the discovery (hundreds of pages of details that wouldn’t change things), do not read the third party’s ToS looking for a loophole (another ~50 pages) as the company likely had already spent hundreds of thousands writing it and millions testing it in court. We would have done those things if necessary but they didn’t need to be done simultaneously and the settlement attempts paid off immediately. It was not an IP case and I don’t think it had merit, but it would have likely cost at least a little more (or possibly much, much more) just to find out and I wasn’t interested in finding out. It was not a scenario where some floodgates could be opened if we settled.
    - paulryanrogers 5y ago
      > IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you. Wow. So now you almost certainly have to have a lawyer because of byzantine 'tested' language and you have to nanny them to avoid getting soaked for billable hours!? It feels like such a racket.
      - Negitivefrags 5y ago
        This is true of basically all professional services that you hire.
      - a4isms 5y ago
        A velvet glove around what you just said is that it’s like you are a product owner, and the lawyer is a pure engineer. They are the expert in implementing the business outcomes you want, but you and only you know all the context required to take the tradeoffs your lawyer articulates, and decide which tradeoffs to make.
- anotherman554 5y ago
  If parent was incorporated and the corporation was sued they cannot defend the corporation without a lawyer. They can defend themselves as individuals without a lawyer if sued individually. Of course the copyright troll may never have sued. But your lawyer will happily charge an hourly rate to repeatedly write letters saying "If you sue us we will win!"
  - thatguy0900 5y ago
    I'm curious what the rationale is for the corporation. Why can't a ceo represent his own company?
    - anotherman554 5y ago
      I imagine the theory is unless the CEO owns 100% percent of his company it's not his company. He's engaged in unauthorized practice of law and screwing over his investors since he has no idea how to practice law. There's also the fact that lawyers have background checks before getting a law license, and if a CEO could practice law without a license it would potentially be a big loophole for fraudsters and other known criminals who commit fraud to be able to practice law.
      - jonas21 5y ago
        Even if the CEO owns 100% of the corporation, it's still a separate entity. That's one of the benefits of incorporating - when someone sues the corporation, they can go after its assets, but not the CEO's. But that means the corporation gets treated like a separate person. And just like you can't represent your friend in court (unless you're a lawyer), you also can't represent your corporation.
- deleted 5y ago
  [deleted]
- sokoloff 5y ago
  Sending back a letter on a lawyer's letterhead is also a negotiating tactic. It's probably what I'd have done as well. Emailing back from joe_blow_blog_157@gmail doesn't send the same signal as "deal with my lawyer; we think we're right; what's your next move?"
- rhino369 5y ago
  Federal civil courts aren't a small claims court. The rules aren't easily understood and are full of pitfalls that trip up even experienced litigators. Your answer to a complaint needs to address every single allegation AND raise all affirmative defenses--or they could be waived. You are pretty likely to foot fault and end up just putting yourself in a worse negotiating position. Trolls already have pre-made complaints, discovery requests, etc. already lined up. You'll have to work a long time to do what they can in a couple hours.
- SerLava 5y ago
  Patent law was designed for giant companies to stop other giant companies from using their stuff. Nobody could really "publish" things on their own. And the fact that it's overbearing for normal people is now a feature rather than a bug.
  - munk-a 5y ago
    Patent law has evolved into that - but it was designed for independent creators to stand up to giant corporations that want to steal their stuff. It is terrible as it exists today but some form of device patenting needs to exist.
- dnautics 5y ago
  because (IIRC) if you win and you get a SLAPP judgement against your harasser, then you be awarded a penalty. Depends on jurisdiction, of course. Possibly not in federal.
mkr-hn 5y ago
Let me guess: Getty Images?
- jermaustin1 5y ago
  I cannot disclose who, but it wasn’t Getty or any of the big names.
  - MikeUt 5y ago
    Those kinds of non-disclosure agreements should be illegal. Not just unenforceable, but illegal, with penalties for those that draft them. The public has a right to know the abuse carried out in the name of its legal system.
    - munk-a 5y ago
      I disagree - that fact that a settlement doesn't deem either party at fault is one of the big appeals. Making settlement negotiations necessarily public will remove that benefit in most cases.
Thiez 5y ago
In a reasonable world, shouldn't the copyright troll be suing the girl instead? Presumably she sold the troll an exclusive license (otherwise the copyright troll wouldn't be interested in obtaining the license) which she must have lied about because she had already licensed the photo to your wife.
- hhjj 5y ago
  well i think the defense lawyer was a bit disingenuous. I guess the only step should have been to confirm the agreement with the girl, forward it to troll and then tell them you have a license so get lost or see you in court. But it looks like they didn't go to court at all...
  - teawrecks 5y ago
    My understanding is that the troll would love to take it to court and keep it there until you can't afford to fight anymore.
    - munificent 5y ago
      Court costs trolls too. They don't want things in court. They want you to settle.
      - munk-a 5y ago
        Trolls adore it when people settle out of court - but the cost of occasionally bankrupting people to scare everyone else into compliance tends to be accepted. Bear in mind that a lot of times the patent troll either has a practicing lawyer on staff or has an intimate relation with one - so they're considering the cost of labour rather than the market rate.
        incompatible 5y ago
        If your defence is straightforward, then turning up in court and defending yourself is still a cheap option, is it not?
fny 5y ago
I have been in this situation. If you have this level of evidence, you absolutely do not need a lawyer. Let me guess, BWP Media? The minute they try to get a court to take the case, it'll get knocked out. (They know this by the way.) Now let's say this isn't the full story and little girly sold the picture to you after having given the rights to the copyright troll... ...then you take the hit and take the girl to small claims court.
- coolsunglasses 5y ago
  Counter-party risk. 9/10 times you won't get the money back from the girl. You're right about the case getting tossed in most circumstances but you can suss that out by asking for proof of when they bought the copyright from the girl and checking the effective date.
beervirus 5y ago
If the facts are really so clear-cut, it sounds like your lawyer did not do a great job.
- jermaustin1 5y ago
  My entire instruction was to do everything to avoid court. I didn’t want to get tied up in court.
  - beervirus 5y ago
    If you have a license to the photograph, why not just send proof of that to the troll and threaten them with Rule 11 sanctions if they sue you? I have to think anybody with a brain would just drop it at that point.
    - jermaustin1 5y ago
      Our “license” was the “photographer“ replying to an email saying it could be posted on our blog. It was just a cellphone photo of Robert Pattinson in nyc. Troll wouldn’t even let me remove the post. Eventually they just took the loss and let me kill the site.
      - beervirus 5y ago
        What is a license except permission? They usually use fancy language, but that email might well have been plenty. I’d let them sue me and seek attorneys fees.
        halostatue 5y ago
        So now you’ve gone from a claim for a few thousand to something where it’s going to cost you tens of thousands up front for court time _plus_ you have a chance of the judgement going against you despite the “permission” and now you’re on the hook for the original few thousand, _possibly_ the attorney fees of the troll, and _possibly_ some punitive judgement on top of it because you fought the “reasonable offer”. My wife has published some books. We have a contract _licence_ written out for the art we _bought_ the use of for the book covers. The licence wouldn’t be a perfect defence if something happened like this, but it is something stronger than an email permission.
generationP 5y ago
Killing an entire site because of one photo?
- jermaustin1 5y ago
  It was too much work to fight and they wouldn’t accept removing only the offending post. I’m sure if I wanted to go to court I would have won but at what cost?
  - lethologica 5y ago
    Why couldn’t the photo just be replaced with another?
    - jermaustin1 5y ago
      Troll wouldn’t even let me remove the post. Eventually they just took the loss after months (a year?) and let me kill the site.
      - generationP 5y ago
        This is rather unusual; looks almost like a hit job by someone who was pissed by another post on the blog but didn't want to reveal their identity...
      - CRConrad 5y ago
        > Troll wouldn’t even let me remove the post. Eventually they just took the loss after months (a year?) and let me kill the site. What do you mean, "let you"? They hadn't somehow magically gained technical and administrative access to your blog, had they?
deleted 5y ago
[deleted]
Trias11 5y ago
Could you "transfer" the blog to another entity registered overseas to make it really expensive for troll to pursue? There must be other approaches not to win but make it very expensive for troll to proceed.
o8r3oFTZPE 5y ago
What would happen if you had removed the photo but continued to run the site, without using the photo. Then the only issue is the "back-pay". Seems like their argument for "back-pay" is weak if you were previously under a good faith belief that you had permission to use the photo.
jbluepolarbear 5y ago
Ignore, ignore, ignore the trolls. You had a license from the original photographer, so you have no legal reason to respond. If they file a lawsuit that has a court date, retain a lawyer, and prepare a counter suit. All you have to do is show that email in court and it’s done. You can’t retroactively change someone’s license. That original license is still valid for your usage.

float4 5y ago

Atrocious that such a trivial case cost you so much money that you actually lost (not strictly, but it must've felt like a loss). My dad is currently suing has past employer (the state). It's taken two years so far and they try to screw him over in whatever way possible. Luckily the union is paying for his lawyer, so he doesn't really care. As someone in his early twenties who knows very little about law, the way such cases go down is mind-blowing to me.

copywrong 5y ago

Perhaps naive… but in a case where it is so plain that there is no case to answer, what is the rationale behind hiring lawyers rather than simply filing court documents yourself if they _do_ sue? The copyright troll was looking to make money: shutting down your site didn’t do anything for them — it was likely just a negotiating tactic that went awry when you called their bluff (actually shut down the site).

a4isms 5y ago
The fact that we ask this question leads us to asking, “Who is the best person to answer the question of whether it’s a good idea to file the documents yourself, and if so, how things are likely to go over the next ___ years of litigation?” And the answer is... A LAWYER EXPERIENCED IN COPYRIGHT AND INTELLECTUAL PROPERTY LITIGATION. That answers your question for me. In cases roughly similar to this, I have begun with a lawyer. Yes, there are two times I recall where they said, “Do it yourself, but watch out for X or Y, and call me back if Z.” That alone justified what I was paying for the first proper, clock is ticking, consultation. What happens after the first consultation would depend upon the case. INAL, YMMV, &c.
- tehwebguy 5y ago
  IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you. When hiring one of the best attorneys to defend the type of action brought I had to be very clear about what they were to do in between our calls (ask the third party to agree to drop it if we get plaintiff to drop it, ask plaintiff these questions, if they don’t do X we will do Y, offer them Z). It was also important to stop them from taking pointless actions that would have cost tons of hours: do not read the discovery (hundreds of pages of details that wouldn’t change things), do not read the third party’s ToS looking for a loophole (another ~50 pages) as the company likely had already spent hundreds of thousands writing it and millions testing it in court. We would have done those things if necessary but they didn’t need to be done simultaneously and the settlement attempts paid off immediately. It was not an IP case and I don’t think it had merit, but it would have likely cost at least a little more (or possibly much, much more) just to find out and I wasn’t interested in finding out. It was not a scenario where some floodgates could be opened if we settled.
  - paulryanrogers 5y ago
    > IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you. Wow. So now you almost certainly have to have a lawyer because of byzantine 'tested' language and you have to nanny them to avoid getting soaked for billable hours!? It feels like such a racket.
    - Negitivefrags 5y ago
      This is true of basically all professional services that you hire.
    - a4isms 5y ago
      A velvet glove around what you just said is that it’s like you are a product owner, and the lawyer is a pure engineer. They are the expert in implementing the business outcomes you want, but you and only you know all the context required to take the tradeoffs your lawyer articulates, and decide which tradeoffs to make.
anotherman554 5y ago
If parent was incorporated and the corporation was sued they cannot defend the corporation without a lawyer. They can defend themselves as individuals without a lawyer if sued individually. Of course the copyright troll may never have sued. But your lawyer will happily charge an hourly rate to repeatedly write letters saying "If you sue us we will win!"
- thatguy0900 5y ago
  I'm curious what the rationale is for the corporation. Why can't a ceo represent his own company?
  - anotherman554 5y ago
    I imagine the theory is unless the CEO owns 100% percent of his company it's not his company. He's engaged in unauthorized practice of law and screwing over his investors since he has no idea how to practice law. There's also the fact that lawyers have background checks before getting a law license, and if a CEO could practice law without a license it would potentially be a big loophole for fraudsters and other known criminals who commit fraud to be able to practice law.
    - jonas21 5y ago
      Even if the CEO owns 100% of the corporation, it's still a separate entity. That's one of the benefits of incorporating - when someone sues the corporation, they can go after its assets, but not the CEO's. But that means the corporation gets treated like a separate person. And just like you can't represent your friend in court (unless you're a lawyer), you also can't represent your corporation.
deleted 5y ago
[deleted]
sokoloff 5y ago
Sending back a letter on a lawyer's letterhead is also a negotiating tactic. It's probably what I'd have done as well. Emailing back from joe_blow_blog_157@gmail doesn't send the same signal as "deal with my lawyer; we think we're right; what's your next move?"
rhino369 5y ago
Federal civil courts aren't a small claims court. The rules aren't easily understood and are full of pitfalls that trip up even experienced litigators. Your answer to a complaint needs to address every single allegation AND raise all affirmative defenses--or they could be waived. You are pretty likely to foot fault and end up just putting yourself in a worse negotiating position. Trolls already have pre-made complaints, discovery requests, etc. already lined up. You'll have to work a long time to do what they can in a couple hours.
SerLava 5y ago
Patent law was designed for giant companies to stop other giant companies from using their stuff. Nobody could really "publish" things on their own. And the fact that it's overbearing for normal people is now a feature rather than a bug.
- munk-a 5y ago
  Patent law has evolved into that - but it was designed for independent creators to stand up to giant corporations that want to steal their stuff. It is terrible as it exists today but some form of device patenting needs to exist.
dnautics 5y ago
because (IIRC) if you win and you get a SLAPP judgement against your harasser, then you be awarded a penalty. Depends on jurisdiction, of course. Possibly not in federal.

mkr-hn 5y ago

Let me guess: Getty Images?

jermaustin1 5y ago
I cannot disclose who, but it wasn’t Getty or any of the big names.
- MikeUt 5y ago
  Those kinds of non-disclosure agreements should be illegal. Not just unenforceable, but illegal, with penalties for those that draft them. The public has a right to know the abuse carried out in the name of its legal system.
  - munk-a 5y ago
    I disagree - that fact that a settlement doesn't deem either party at fault is one of the big appeals. Making settlement negotiations necessarily public will remove that benefit in most cases.

Thiez 5y ago

In a reasonable world, shouldn't the copyright troll be suing the girl instead? Presumably she sold the troll an exclusive license (otherwise the copyright troll wouldn't be interested in obtaining the license) which she must have lied about because she had already licensed the photo to your wife.

hhjj 5y ago
well i think the defense lawyer was a bit disingenuous. I guess the only step should have been to confirm the agreement with the girl, forward it to troll and then tell them you have a license so get lost or see you in court. But it looks like they didn't go to court at all...
- teawrecks 5y ago
  My understanding is that the troll would love to take it to court and keep it there until you can't afford to fight anymore.
  - munificent 5y ago
    Court costs trolls too. They don't want things in court. They want you to settle.
    - munk-a 5y ago
      Trolls adore it when people settle out of court - but the cost of occasionally bankrupting people to scare everyone else into compliance tends to be accepted. Bear in mind that a lot of times the patent troll either has a practicing lawyer on staff or has an intimate relation with one - so they're considering the cost of labour rather than the market rate.
      - incompatible 5y ago
        If your defence is straightforward, then turning up in court and defending yourself is still a cheap option, is it not?

fny 5y ago

I have been in this situation. If you have this level of evidence, you absolutely do not need a lawyer. Let me guess, BWP Media? The minute they try to get a court to take the case, it'll get knocked out. (They know this by the way.) Now let's say this isn't the full story and little girly sold the picture to you after having given the rights to the copyright troll... ...then you take the hit and take the girl to small claims court.

coolsunglasses 5y ago
Counter-party risk. 9/10 times you won't get the money back from the girl. You're right about the case getting tossed in most circumstances but you can suss that out by asking for proof of when they bought the copyright from the girl and checking the effective date.

beervirus 5y ago

If the facts are really so clear-cut, it sounds like your lawyer did not do a great job.

jermaustin1 5y ago
My entire instruction was to do everything to avoid court. I didn’t want to get tied up in court.
- beervirus 5y ago
  If you have a license to the photograph, why not just send proof of that to the troll and threaten them with Rule 11 sanctions if they sue you? I have to think anybody with a brain would just drop it at that point.
  - jermaustin1 5y ago
    Our “license” was the “photographer“ replying to an email saying it could be posted on our blog. It was just a cellphone photo of Robert Pattinson in nyc. Troll wouldn’t even let me remove the post. Eventually they just took the loss and let me kill the site.
    - beervirus 5y ago
      What is a license except permission? They usually use fancy language, but that email might well have been plenty. I’d let them sue me and seek attorneys fees.
      - halostatue 5y ago
        So now you’ve gone from a claim for a few thousand to something where it’s going to cost you tens of thousands up front for court time _plus_ you have a chance of the judgement going against you despite the “permission” and now you’re on the hook for the original few thousand, _possibly_ the attorney fees of the troll, and _possibly_ some punitive judgement on top of it because you fought the “reasonable offer”. My wife has published some books. We have a contract _licence_ written out for the art we _bought_ the use of for the book covers. The licence wouldn’t be a perfect defence if something happened like this, but it is something stronger than an email permission.

generationP 5y ago

Killing an entire site because of one photo?

jermaustin1 5y ago
It was too much work to fight and they wouldn’t accept removing only the offending post. I’m sure if I wanted to go to court I would have won but at what cost?
- lethologica 5y ago
  Why couldn’t the photo just be replaced with another?
  - jermaustin1 5y ago
    Troll wouldn’t even let me remove the post. Eventually they just took the loss after months (a year?) and let me kill the site.
    - generationP 5y ago
      This is rather unusual; looks almost like a hit job by someone who was pissed by another post on the blog but didn't want to reveal their identity...
    - CRConrad 5y ago
      > Troll wouldn’t even let me remove the post. Eventually they just took the loss after months (a year?) and let me kill the site. What do you mean, "let you"? They hadn't somehow magically gained technical and administrative access to your blog, had they?

deleted 5y ago

[deleted]

Trias11 5y ago

Could you "transfer" the blog to another entity registered overseas to make it really expensive for troll to pursue? There must be other approaches not to win but make it very expensive for troll to proceed.

o8r3oFTZPE 5y ago

What would happen if you had removed the photo but continued to run the site, without using the photo. Then the only issue is the "back-pay". Seems like their argument for "back-pay" is weak if you were previously under a good faith belief that you had permission to use the photo.

jbluepolarbear 5y ago

Ignore, ignore, ignore the trolls. You had a license from the original photographer, so you have no legal reason to respond. If they file a lawsuit that has a court date, retain a lawyer, and prepare a counter suit. All you have to do is show that email in court and it’s done. You can’t retroactively change someone’s license. That original license is still valid for your usage.