Copyright Law Litigation

Court Labels Attorney as “Copyright Troll” and Fines Him $10,000 Over Frivolous Case Involving Photograph

2018 has been a bad year for copyright infringement troll attorney Richard Liebowitz. He specializes in bringing hundreds of suits over the alleged infringing use of a digital photograph. In February, in the case of McDermott v. Monday, Monday LLC Southern District of NY Judge Denise Cote labeled him a “Copyright Troll” for filing over 500 photo infringement lawsuits in the Southern District of NY alone in the past 2 years. We have handled more than our share of those over the years as part of our Extortion Letter Defense Program. Well it seems Judge Cote has had enough. While she did not fine him in that case, she did require that he post a bond in any future SDNY case for copyright infringement that he files. She also took the time to define “Copyright troll”:

In common parlance, copyright trolls are more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties to sell a product or service. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.

But this week, she had enough of Liebowitz and his methods, fining him $10,000 for his behavior in the case of Steeger v. JMS Cleaning Services The particular practice in this case that brought Liebowitz to Judge Cote’s attention is that he files many of these lawsuits in NY against mom and pop websites and businesses that have no NY connection. Of course, it usually costs time and money for a company to even object to being sued in NY and Liebowitz then demands less money to settle than it would take to hire an attorney in NY to file a motion to dismiss the case for lack of jurisdiction. What happens when you file a Federal lawsuit is that, in short order, a judge schedules an initial conference to find out what the case is about and to get a discovery schedule in place. Since the defendant has usually not hired a lawyer to appear on its behalf, it is up to the plaintiff’s lawyer (Liebowitz) to notify the defendant of the conference date and time. It seems Liebowitz has a nasty habit of not notifying the other side of the conference. Liebowitz failed to serve a similar notice of pretrial conference in a case before The Honorable Ronnie Abrams of the SDNY in Al Pereira v. Kendall Jenner, Inc. Judge Abrams then instructed Liebowitz to check through his entire docket and make sure he had served notice of conferences in all his other matters. She had filed her own motion to have Liebowitz appear before her to explain why she should not fine or sanction him; Liebowitz quickly settled and dismissed the case before the date he was to appear and explain himself.

He did not move fast enough in the Steeger case. Judge Cote noted further that in a letter to the court, Liebowitz had withheld information or mischaracterized events to make it look like the defendant was at fault for not seeing or receiving the conference notice. Judge Cote was having none of it and fined Liebowitz and his law firm $10,000.

Will this troll learn his lesson?

Its about time that Liebowitz (and copyright trolls like him) got their comeuppance. A number Mr. Liebowitz’s cases have been dismissed from the bench as frivolous. Cruz v. Am. Broad. Cos., 17cv8794 (LAK), 2017 WL 5665657, at *2 n.11 (S.D.N.Y. Nov. 17, 2017) (Judge Kaplan noted that he “awarded over $121,000 in attorney’s fees against a client of Mr. Liebowitz in three other, related copyright infringement cases that were dismissed from the bench.” (citing Kanongataa v. Am. Broad. Cos., 16cv7392 (LAK), 2017 WL 4776981, at 3 (S.D.N.Y. Oct. 4, 2017)). Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action. See, e.g., Pereira v. Kendall Jenner, Inc., 17cv6945 (RA) (Mr. Liebowitz voluntarily dismissed the case before responding to the Judge Abrams’ Show Cause Order.); Cruz v. Am. Broad. Cos., 17cv8794 (LAK), 2017 WL 5665657, (S.D.N.Y. Nov. 17, 2017) (Mr. Liebowitz informed the court that the parties had settled the case before responding to Judge Kaplan’s Show Cause Order.). See also Tabak v. Idle Media, Inc., 17cv8285 (AT), ECF No. 5 (Judge Torres ordered Mr. Liebowitz to show cause why the action should not be transferred. Mr. Liebowitz voluntarily dismissed the case before responding to the Order to Show Cause.); Reynolds v. Intermarkets, Inc., 17cv8795 (AT), ECF No. 4 (same).

Troll attorneys like Liebowitz take advantage of the Copyright Law’s allowance for legal fees to intimidate small businesses into paying huge sums for minor infringements. I have been fighting this battle since 2008 and have represented over 3,500 businesses in claims such as these. I see the stress and worry these claims impose on small businesses and hobby site owners. I am hopeful that the SDNY has started a trend where courts fine these lawyers for bringing theses claims into Federal court only to try and extract a settlement from a company that fears it cannot afford to litigate or pay an award.

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