Legal Extortion
A bad year for OTB.
I have spent most of the year dealing with a copyright troll. Some $21,000 later, the ordeal is over.
Back in February, I got served out of nowhere with a lawsuit seeking hundreds of thousands of dollars in damages for OTB’s use of a rather generic photo of a government building. I spoke to a couple of copyright attorneys referred to me by the Electronic Freedom Foundation, and they had some good news for me:
- The photo was first posted on OTB way back in 2010. The statute of limitations requires that suits for damages be filed within three years. (While this is mitigated by a bizarre rule that only tolls the clock when the rights holder claims to have found the infringement, we had direct proof that they had in fact done so over a decade prior to filing.)
- The generic nature of the photo (there are literally hundreds of quite-similar ones at Getty and other photo archives and, indeed, several available under various free Creative Commons licenses) would make it hard to claim damages.
- The fact that OTB is a registered Limited Liability Company, one that has garnered a profit (of less than $100!) in only one year of the past ten likely precluded them from collecting damages in any case.
- That the photo was posted at OTB by the late Doug Mataconis, who had died before the suit was filed, adds to that difficulty.
But, alas, some bad news:
- Because the case didn’t break any interesting new ground in terms of case law, they wouldn’t take it pro bono. (Or, indeed, at all in the case of the first lawyer, who works for a nonprofit group.)
- Despite the fact that I would likely win, it would cost me an inordinate amount of money to take it to court and find out. Indeed, it would almost certainly be cheaper to settle. As the first lawyer put it, “you will have to decide whether to give in to extortion.”
With the benefit of hindsight, I should have decided to give in to extortion.
Instead, I made the mistake of hiring the third lawyer I talked to. He reiterated the points in my favor and gave me every impression that copyright trolls like this litigant (who seems to make more money from lawsuits, of which he has filed dozens, than his photography) back down quickly when confronted with an experienced copyright attorney. I expected to pay him a couple thousand dollars and pay the claimant a nominal sum for the use of the photo.
Instead, the case dragged on for most of the year. Every back-and-forth email and phone call cost me hundreds of dollars. I repeatedly told my attorney that it was obvious that the other side was intentionally dragging the case out, causing me to fight a two-front war, with both his client and my lawyer driving up my costs. While my attorney had litigated hundreds of copyright cases, he apparently never dealt with opposition counsel that was so obstinate and unwilling to reason.
Finally, we got to the point where I would have to take time off work and spend thousands more on depositions, court reporters, and attorneys’ fees. With the prospect of spending unknown time in court, unknown money, and still some possibility of losing the case (there were also prospects of recovering all of my fees, but there was no certainly of that), we finally reached a deal.
Given both the stress of the case and the prospect that this could happen again at any time, I seriously considered shutting the site down over the summer. Spending hundreds of man-hours a year running a money-losing website is one thing; facing the stress and financial costs of frivolous lawsuits is quite another. Ultimately, Steven, Tom, Matt, and I spent weeks going through the media archive, which at the time consisted of 23,479 images, and deleting any whose provenance we could not readily identify.* Given the sheer volume, we were extremely aggressive and certainly deleted hundreds of images that we were entitled to use.
It has all been, to say the least, quite frustrating.
*We’ve been pretty careful over the years to use public domain or CC-licensed images, but plenty of images marked as free for use on Google Image or Flickr—and even on U.S. government websites!—are actually copyrighted images. And earlier versions of the WordPress software we use didn’t make it as easy to document sources and link to licenses.
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Ouch, sorry to read this.
I watch a lot of YouTube stuff made my musicians. The DMCA takedown is a thing they routinely have to deal with, and many of them have had to retain a lawyer. The claims are frivolous generally. What they do is obvious fair use.
Not quite the same as your issue.
Meanwhile, I congratulate you on the foresight to make this an LLC. I’m sure that has helped a lot.
I’m going to kick in some extra, above and beyond my Patreon membership, when I get home (I’m finding it hard to do on my phone for some reason). No way James should have to shoulder all the cost of something that was 1) righteous and 2) very much for my benefit. I invite anyone in the OTB community that is able to do so to join me
The more I learn about the American legal system, the more I think it resembles the Mafia with better suits.
@Erik:
I agree, and done.
Defending these copyright trolls is – frustratingly – a growing part of my practice. If you think your photo of a government building was generic, try a photo of a bowl of soup or a rebar grid for a half-poured concrete job. The rise of programs that can crawl the Internet for images has fueled this, especially in regard to “finding” old and very pedestrian images.
It is depressing and always a trade off for the cost of defense vs. the value of the shake down. I will follow Erik and Michael Reynolds.
@Erik:
Me, three.
@JohnSF:
It’s much the same issue as with regulations. It’s hardly the same for a big corporation to defend a lawsuit or implement regulatory requirements, than it is for a small business or an individual. There should be a way for the latter to defend against lawsuits in a more economical manner.
Spit. I threw a bit in the pot, too, but I fear it won’t take much of a bite out of 21K.
It was painful to read this. I’m so sorry, Prof. JJ.
That sounds horrible, James. I’m really sorry he did this to you.
This copyright issue is something that I am quite interested (for reasons). Are there publicly available documents pertaining to the case that you can point to?
Perhaps (probably) not, but I figured I’d ask anyway.
It’s not a lot but I’m in for a few bucks.
@Erik: @Michael Reynolds: @Joe: @gVOR10: @a country lawyer: Much appreciated. I should be able to write the suit off as a business expense, but another massive loss may well lead to the site being declared a hobby. In which case, not only would I not be able to write off future expenses, they could theoretically claw back past write-offs.
@Jay L. Gischer: Unfortunately, not so much, at least in this case. They sued the LLC but also me in my personal capacity. I’m almost certainly not liable, but it would cost more to defend it than simply paying them off. Which, alas, is the whole nature of the copyright troll game. It’s possible that others have decided it wasn’t worth it upon seeing the LLC designator. ¯\_(ツ)_/¯
@JohnSF: Yes, it’s very much that. The criminal side works the same way. Indeed, it would collapse of its own weight it every case had to go to trial rather than resulting in coerced settlements/plea bargains.
@Kathy: Agreed. Frankly, this case should have been in small claims court. But the game is to sue for maximum statutory damages ($150,000 per infringement for willful infringement), even though actual damages tend to border on nil.
@Mimai: It’s probably Googleable, but terms of getting this over with preclude divulging certain information, thus the vague nature of the post.
I am so sorry! That’s dreadful.
@James Joyner:
Yes, I understand the vague nature of the post. Makes total sense.
I was able to find the information I was seeking. And so much more.
This claimant has a telling track record… legal, not professional.