Abusing copyright enforcement tools is disrespectful to creators
Creators can and must be able to enforce their copyright because they deserve respect for the works they have created. Under the premise that it is wrong to violate copyright, one which I agree with, we should not hold consumers of copyrighted works to a lower standard — they should respect the creators.
What if creators take it too far? Who decides what “too far” means? In this post, I will elaborate on (1) what some copyright enforcement tools are, (2) how they can be abused, and (3) what the potential for abuse means for everyone involved (copyright owners, users of copyrighted works, and intermediaries such as social networks and other platforms supporting user-generated content).
In the age of social media, consumers are often also creators, so I hope this information will help individuals in protecting their work or in protecting themselves should they encounter abusive enforcement practices.
It is my view that abusive copyright enforcement harms the honest and reasonable creators who would not use such practices. Yet, it is precisely these practices that create a divide between creators and consumers, and to what end? Certainly not a culture of cooperation. Mass piracy contributes to this divide as well, though the focus of this post is on relatively small infringement cases compared to piracy of films or television shows. By pitting “greedy and ignorant consumers” against “copyright trolls”, the divide creates an unfair reputation for both parties. As both a creator and consumer of content (and defender of both), I consider it my duty to inform the wider public about abusive enforcement techniques and how to resolve disputes in a more amicable way.
Before providing my final opinion about what constitutes fair enforcement, I will also analyze differing perspectives on the protection of copyright in relation to the Copyright Alternative in Small-Claims Enforcement (CASE) Act, a proposed law that would alter the way copyright claims are adjudicated in the United States.
Disclaimer: Readers are advised not to take this post as legal advice given that the law and its interpretation can change from time to time.
What copyright enforcement tools are available to use?
I propose only to go over some of the many tools available. Some of these ‘tools’ are simply well-organized techniques. I am covering primarily U.S. legal techniques here, but there is certainly no shortage of ways to enforce copyright. I have listed the tools from the most serious to the least, from my perspective, focusing primarily on the protection of images.
Filing a claim under the Copyright Act, 17 U.S.C. § 101
To file a civil action seeking damages and possibly injunctive or other relief for copyright infringement, there are a few points to consider at least with respect to the topic of ‘free-to-use’ images covered in my post on copyright enforcement gone wild.
There should be a cause of action tied to the copyright law (i.e., copyright infringement), the plaintiff’s work should be registered with the U.S. Copyright Office prior to filing suit, the work should not have been used by the alleged infringer under fair use provisions, and the plaintiff should identify the remedies they seek.
There is a lot more to this process which I will not attempt to cover in this post nor in the general considerations I outlined separately from this post.
I would never be able to provide justice to the whole of intellectual property law and the enforcement industry in a single blog post, but these broad basics should help readers understand this tool in the overall enforcement arsenal.
Pre-litigation correspondence
This is typically known as the “scary letter from a law firm”, but it can also come from another authorized agent of the copyright owner or the copyright owner directly.
The letter sets out general points about the law, the copyright owner’s rights, why the copyright owner believes the alleged infringer has violated those rights, and what should be done in order to avoid further actions (which typically may include a lawsuit, but could also include less formal tactics such as a DMCA Notice).
This tool of pre-litigation correspondence is often used by copyright enforcement service providers.
Copyright enforcement service providers
There are numerous services which photographers can use to enforce image copyright:
- Copytrack
- ImageProtect
- ImageRights
- Lapixa
- Myows
- Pixsy
- and many others
Most of them use reverse image search technology to identify potentially unauthorized usage of a copyright owner’s images. Once potential infringements are detected, the copyright owner can elect to pursue the alleged infringements typically through the service’s network of lawyers in different jurisdictions.
The ways in which enforcement actions can occur vary, but they may start off with an offer to sell the alleged infringer a license, and should the alleged infringer elect not to pay, the copyright owner can then elect to file a claim depending on the jurisdiction.
The copyright enforcement service provider can proceed with the claim usually at their own discretion since they have to weigh the merits of pursuing a claim.
DMCA Notice
The Digital Millennium Copyright Act (DMCA) was codified under 17 U.S.C. § 512 and provides a mechanism for copyright owners to request online service providers to remove any allegedly infringing materials from their service (typically through a website that hosts those materials).
It is a less formal tool than to threaten litigation, but it is more formal than to ask an alleged infringer to remove the materials directly.
For more details on the filing and response process, read my post about DMCA notices and counternotices.
Simple communication
This an underrated but relatively inexpensive option if the owner and the alleged infringer can agree on what should happen going forward.
All this requires is not getting too formal — resorting to direct, non-threatening communication as the first resort. Talk doesn’t have to be cheap if both parties can be happy after the discussion ends.
Some copyright owners prefer to park their knife right next to the alleged infringer’s jugular from the outset, making it simpler for the alleged infringer to give up and pay up rather than deal with the horror of litigation. I will cover this point in more detail in the next section.
How can copyright enforcement tools be abused?
I have written this post with the assumption that copyrighted works are worthy of protection given that the law protects copyrighted works. The difference between ‘use’ and ‘abuse’ is debatable, so I am providing my own view on what constitutes abuse.
In my view, unless there is a pattern of behavior conducted by the alleged infringer warranting stronger measures, the first course of action in any alleged infringement should be the use of simple communication to align the parties. Anything beyond this proposed first course of action is excessive and is therefore abusive.
Perhaps large enterprises would find it administratively infeasible to operate with this model since it requires resources to communicate with each alleged infringer, and there is certainly the case that some alleged infringers can fit the profile of an unremorseful infringer. I do not aim to address this particular case. In my view, there is a legitimate case for enforcement action from the outset in the case of competitive situations where the parties have similar bargaining power, and that both parties are generally sophisticated enough to understand their obligations as professionals.
I have provided an analysis here of how the tools mentioned in the previous section can be abused when simple communication is not used in the first resort.
Filing a claim under the Copyright Act, 17 U.S.C. § 101: Taking steps that are above and beyond what the situation calls for
Whether a copyright owner or their agent files the claim, it is possible to abuse this hopefully last-resort tool. How? By seeking an outcome (usually excessive damages) that is disconnected from commercial reality.
Litigation is the most expensive route to take, and it will involve lawyer and court fees (unless the “winner” is awarded those fees when the case is closed).
By threatening alleged infringers with damages of up to $150,000 as permitted under 17 U.S.C. § 504(c)(2), copyright owners can use this massive number to persuade alleged infringers to settle for lower sums, and it is not unheard of for copyright owners to seek amounts in the thousands even if the alleged infringer was not aware of their infringement.
What many may not know, however, is something else in 17 U.S.C. § 504(c)(2): that where the alleged “infringer was not aware and had no reason to believe that [their] acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200”.
What is abusive is when the copyright owner and their lawyer know this and other facts, yet proceed to make the alleged infringer, no matter their circumstances, feel cornered enough to pay up a higher settlement fee and move on.
The recent order made by the U.S. District Court for the Southern District of New York to suspend known copyright troll Richard Liebowitz from practicing law in the district makes reference to another order citing a long string of his improper behavior which includes lying to the court. What is concerning is whether this part of the order was known to the copyright owner referenced in the Computer Weekly article: “(4) By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion and Order on the docket of any currently pending case that was brought by Mr. Liebowitz or his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF;” — if he did know, why would he continue to have this lawyer as his representative, and would he continue to have him as his representative in other New York district courts let anyone any court at all?
Pre-litigation correspondence: Over-exaggeration of the harm caused to the copyright owner
The abuse can start before taking the final step of filing a claim through the threatening language contained in pre-action correspondence. Especially in the case of ‘free-to-use’ images, I question the extent of the commercial harm caused when failing to provide attribution by suggesting that there are non-monetary remedies that can be pursued.
If the alleged infringer is genuinely an infringer, and they sought to deprive the owner of commercial benefit especially for what should have been a paid photograph, then they should offer to pay an amount proportionate to the harm they caused in the form of possible revenue lost. This should account for how often the page was viewed, for example.
Why pay up when no one has seen the content? That would be unreasonable, yet many owners and their copyright enforcement service providers undervalue this point among others when making their threats. It is not in their interest to reduce their negotiation power, so why should they help the alleged infringer to pay what is fair?
A common negotiation strategy is for the owner or agent to make broad claims about the commercial value of the work (or related works) in order to suggest there was more harm than is the case. An uninformed alleged infringer may not know any better, and they will pay up because they are too shocked to consider any other course of action.
Copyright enforcement service providers: Acknowledging that enforcement can be indiscriminate
And Pixsy CEO Kain Jones says it himself, “We’re happy to be the bad guy.” This is clearly a PR stance because it is obvious that Pixsy is not “the bad guy”, and it is the alleged copyright infringers they target who are — why else would they offer their service? What would make any service “the bad guy” is the extent to which they allow abusive enforcement practices.
ImageRights International CEO Joe Naylor commented in the article that he does not recommend photographers pursuing nonprofits yet acknowledges that this is possible to do.
These tools can be used for legitimate and worthy instances of correcting a wrong caused by copyright infringement, yet simply because copyright owners can use the full force of the law does not mean they should. It is abusive to pursue enforcement in a disproportionate manner, but more often than not, the various copyright enforcement service providers lack a policy on disproportionate enforcement.
A quick scan of the services I mentioned earlier indicates that enforcement can and often will be indiscriminately pursued even if humans are involved in managing individual cases.
I read each of their service agreement terms and it is clear: so long as the copyright owner has legal rights, those rights can be enforced, and, in my view, an enforcement service can be used to reach an outcome that is not necessarily proportionate to the circumstances even if the law permits achieving that outcome.
None of the terms (as of the date of writing this post) provide any concern for the alleged infringer beyond what the law permits. This lack of moral consideration for the alleged infringer enables abusive behavior, and I stand by that position as someone who has helped clients enforce copyright to obtain payment.
Proportionality matters. There are contexts in which it is more than legitimate to pursue money, and there are contexts in which it is morally conflicting despite what the law says. These abusive practices do nothing to help bring the community together.
DMCA Notice: Using the process intricacies to slow down or to silence an opponent
What if someone wants to file a DMCA notice to take down content they do not want to see published? The mechanics of the DMCA notice under 17 U.S.C. § 512 put online service providers in a position to decide whether to take down allegedly infringing content, and practically speaking, they usually will take down the content even if it is not infringing.
By carefully constructing DMCA notices, it is possible to take down content that might be embarrassing even though the intention behind filing these notices is to take down infringing content. Indeed, research carried out by the Electronic Frontier Foundation demonstrates that legitimate activities have been harmed by the DMCA, where they claim that the law has “chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public”, citing examples targeting CNET and Slashdot. Those examples refer to 17 U.S.C. § 1201, which is the DMCA law prohibiting the circumvention of copyright protection measures. EFF also maintain a repository citing creative expression that has been threatened by abusing the DMCA.
What if there is no circumvention taking place, and the work is not genuinely enforceable by copyright? Unfortunately, there are reported cases of journalist-on-journalist censorship in which items published accounting for the Copyright Act’s fair use provisions were still censored through application of 17 U.S.C. § 512 (filing the DMCA notice). Online service providers may not have the resources nor any incentive to verify with extensive effort the legitimacy of the notice. The easiest thing to do is to remove the content, and for the alleged infringer, the easiest thing to do is move on.
If neither know any better, why should they test the legal system and see if they will get excessive penalties to pay? This proves that the law allows abuse — it certainly does not put in clear positive mechanisms to stop this abuse. The burden is put onto the alleged infringers who often are far less informed about their obligations than copyright owners are about their rights.
Simple communication: Escalating to pre-litigation talk prior to considering all of the circumstances
Regular one-on-one communication is the best way to go if the alleged breach of copyright is not extensive nor very harmful, but as soon as anyone escalates to threatening speech before the contexts are clear, then we need to understand why that might be the case.
The bargaining power of the owner and the alleged infringer is important. If the parties are competitors in similar industries, and they are professionals, then it is more likely the alleged infringer should have known better (especially if they are dealing with copyrighted works as a matter of business). What about if the alleged infringer is a consumer-level individual who gains nothing from violating the copyright of a professional photographer? What if someone accidentally visited a website with unauthorized copies of movies that were then somehow transmitted to that person’s computer, and the copyright owner found out?
I argue that where the bargaining power is not equal between the copyright owner and the alleged infringer, it is critical to determine the context behind the infringement that allegedly occurred. It is abusive to escalate when this context has not been determined.
What does the abuse of copyright enforcement tools mean for everyone — why is it disrespectful to creators?
There are a number of contexts in which copyright owners should seek enforcement of their rights even if that means the alleged infringer has to pay up, pause what they are doing, or even destroy what they were using. Those are the contexts in which alleged infringers should know better and should make up for the harm they have caused. That’s fair. No one could blame a copyright owner for arguing they were harmed by an opportunistic infringer that may be depriving the copyright owner of the credit or the revenue they deserve for that work.
It comes down to proportionality. If the copyright owner is seeking what would put them back into a position they would have reasonably expected had the alleged infringer respected the owner’s rights, that’s proportionate. Anything else, not so much.
When certain copyright owners pursue disproportionate outcomes, they harm the reputation of the wider community of copyright owners.
Copyright owners and lawyers
As a lawyer, I think about proportionality quite often. In England & Wales, the Solicitors Regulation Authority (SRA) applies proportionality when using its powers to determine whether a regulated law firm or an individual has breached the Standards and Regulations. What this means is the regulator uses their “resources and powers appropriately to establish the relevant facts in a way that is fair and effective” — and not going above or beyond this. One of the examples provided in the guidance is a clear example of proportionality being applied by the regulator when investigating a law firm using copyright troll practices: “A law firm sent 3,000 letters to people accusing them of illegally downloading copyright material belonging to the firm’s clients and demanding compensation. The accusations were exaggerated, threatening and led vulnerable people to pay money that was not owed to the firm. We spoke to some of them, explaining that we were investigating possible misconduct by the law firm and took statements from them. Their evidence was important in explaining to the [Solicitors Disciplinary Tribunal] how people had been intimidated and had paid money because of fear of a large legal bill.”
Furthermore, the SRA Principles that solicitors like myself should uphold expresses that I should “act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.” If I were to participate in a copyright trolling scheme to demand money from alleged infringers when such money was not owed to me nor to my clients, that would be rather disproportionate even if the law may have allowed me to pursue such claims. It would also contradict my responsibilities to respect the legal profession if I used such an approach. Just because I can does not mean I should, and the legal regulator recognizes this.
Why then should copyright trolls be allowed to disrespect their fellow creators? Just as lawyers and other professions should act proportionately in the circumstances, so should creators. Anything less than adhering to this standard harms the community of creators.
The CASE Act: Analysis
The proposed law would transform the way damages could be sought and awarded under through the decisions that could be made through a new Copyright Claims Board (CCB), which aims to make the process for reviewing infringement claims much smoother and less costly.
One of the biggest proponents of the bill (which as of this writing is yet to be passed by the U.S. Senate) is the Copyright Alliance, which argues that copyright trolling would be solved by the implementation of this law.
They cover numerous points regarding the bill’s ability to dissuade copyright trolls (which, notably, they do not believe exist through the use of quotations suggesting they are an alleged anomaly). The most important points are that (1) the claims process is voluntary and that the alleged infringer can “opt out”, (2) there is a blanket opt-out mechanism that keeps an alleged infringer opted out for a set period of time, (3) the CCB has the authority to take various actions in the case of a copyright owner filing a claim in bad faith, (4) the claim amounts of $15,000 maximum compared to the federal court $150,000 maximum indicates there is a less favorable target amount for copyright trolls under the proposed law, and (5) only a maximum of ten cases can be filed per year through the CCB.
On the other side of the argument is the Electronic Frontier Foundation, which claims the bill has dangerous flaws.
One of those flaws claimed is that in addition to the existing censorship enabled by filing DMCA notices, the CASE Act would allow owners the ability to censor material that could be restored through a DMCA counternotice for longer than the typical 14-day period provided in 17 USC § 512. They made further argument about the proposed law’s potential for abuse in a letter to the House Judiciary Committee.
Regarding their stance that the bill would help copyright trolls, EFF stated, “CASE creates a quick and cheap way to collect on a large number of claims, without the review they might receive in a real court. And […] it will also make it easy for trolls to file a claim and then simply tell their targets to settle for what is still a significant amount, but less ruinous than the worst-case scenario of going through the full CASE Act process.”
As I like to say generally, “everyone’s right, and no one is sorry”. I have sympathy for both copyright owners and alleged infringers — I represent both types of parties. If we seek a more cooperative society with less conflict, having that sympathy is critical. While I understand the arguments made by the Copyright Alliance, what they do not address is the fact that it is possible for plaintiffs to structurally meet the limits of the CASE Act without having action taken against them for making bad faith claims. It is precisely this point which make stories about payments for ‘free-to-use’ images chilling — schemes can take advantage of the laws as they are, so that they can be abused in a way that allows the copyright owner to plausibly deny bad faith while still achieving their outcome.
Final thoughts
Proportionality matters. Eligible works can be protected with copyright, but the price to pay for violating a copyright owner’s work should be proportionate to the harm caused. The law claims to recognize this, but it is clear that market forces have their options — they can use the tools as they were intended to be used, or they can use the tools in an opportunistic and abusive way. Whether the proposed CASE Act legislation would reduce the potential to abuse those tools is debatable — there are arguments on both sides suggesting the opposing alternative will result in more abuse.
I have at least made a suggestion about how the spirit of the law should operate with respect to copyright enforcement of ‘free-to-use’ images, and on that basis, I do not think the CASE Act does enough to bring the community together. It does not address the entirety of the issues surrounding copyright trolling. If we strive to be a society where simple communication leads us to cooperation, then we have to try harder than enabling enforcement that can go straight for the jugular.
This is a personal blog. The views and opinions expressed in this article are those of the author and do not represent those of people, institutions or organizations that the author may or may not be associated with in a professional or personal capacity. All information is provided on an as-is basis.
