Free Speech

Lawyer Loses Bid To Redact Opinion Labeling Him a "Copyright Troll"

But at least he wasn't labeled a "copyright orc" ....

|The Volokh Conspiracy |

From McDermott v. Monday Monday, LLC, written by District Judge Denise Cote, issued last Fall, though I just came across it while researching a related copyright case:

On February 22, 2018, this Court denied the defendant's motion for attorney's fees in this case. McDermott v. Monday Monday (S.D.N.Y. Feb. 22, 2018) ("February 22 Opinion"). Over a month later, plaintiff's counsel filed a motion pursuant to Fed. R. Civ. P. 60 objecting to the use of the term "copyright troll" in the February 22 Opinion to describe plaintiff's counsel. He requests that the term be "redacted" from the February 22 Opinion. The request is denied….

Plaintiff's counsel, Richard Liebowitz, has filed over 700 cases in this district since 2016 asserting claims of copyright [infringement]. The instant action was among their number. In this action, the plaintiff sued an Idaho limited liability company based on the assertion that it had displayed the plaintiff's copyrighted photograph on its website. The defendant was served on November 30. Despite his obligation to do so, Mr. Liebowitz did not file on ECF either an affidavit reflecting service of the complaint or proof that he had served the initial pretrial conference notice on the defendant.

Moreover, despite the assertion in the complaint that the defendant "transacts business in New York," it appears that the defendant does not do so. On January 17, the defendant moved to dismiss for lack of personal jurisdiction. Before opposition to the motion was due, the plaintiff voluntarily dismissed his suit. That same day, the defendant sought attorney's fees and costs. In his opposition to the motion for attorney's fees and costs, Mr. Liebowitz did not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. For the reasons described in the February 22 Opinion, the Court in an exercise of its discretion denied the defendant's motion and declined to award fees against Mr. Liebowitz "on this occasion." The February 22 Opinion warned that should Mr. Liebowitz file any other action in this district against a defendant over whom there is no non-frivolous basis to find that there is personal jurisdiction, "the outcome may be different."

Despite the exercise of restraint in declining to impose sanctions against Mr. Liebowitz, Mr. Liebowitz has brought this motion. He objects to the description in the February 22 Opinion of Mr. Liebowitz as a known copyright troll, and requests that the February 22 Opinion with that term "redacted." …

Even if it were appropriate to consider this request for a "redaction" under Rule 60, Mr. Liebowitz has failed to explain what the refiling of the February 22 Opinion with a redaction would accomplish. He has also failed to demonstrate that any modification to or redaction of the February 22 Opinion is warranted. His litigation strategy in this district fits squarely within the definition of a copyright troll.

The February 22 Opinion defined a copyright troll as follows:

"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."

In the over 700 cases Mr. Liebowitz has filed since 2016, over 500 of those have been voluntarily dismissed, settled, or otherwise disposed of before any merits-based litigation. In most cases, the cases are closed within three months of the complaint filing. In some instances, cases were dismissed because Mr. Liebowitz failed to prosecute his clients' claims. See, e.g., Vincheski v. University of Minnesota et al., 16cv4590 (KBF), ECF No. 19 (S.D.N.Y. Sept. 9, 2016) (terminating the action after plaintiff failed to amend her complaint pursuant to a court order directing plaintiff to amend her complaint due to deficiencies in the dismissed original complaint). In other cases, judges have noted Mr. Liebowitz's unorthodox litigation practices. See, e.g., Cuffaro v. Nylon Media, Inc., 18cv1391 (GHW), ECF No. 11 (S.D.N.Y. Apr. 11, 2018) (noting that plaintiff, in a sworn affidavit in support of a default judgment, misstated key dates and urging "counsel for plaintiff to use greater caution and to avoid such clear errors when making submissions to the Court"); Kmonicek v. Daily Burn, Inc., 17cv497 (KPF), ECF No. 23 (S.D.N.Y. June 15, 2017) ("The Court is surprised to have received the above request [for an extension to file a stipulation of dismissal], which was not at all foreshadowed during yesterday's telephone conference. And the Court is hesitant to grant the parties' third extension request in order to accommodate what appear to be ministerial concerns not touching on the substance of the parties' settlement.") (emphasis in original) (each extension in the case was requested by Mr. Liebowitz).

A number of Mr. Liebowitz's cases have been dismissed from the bench as frivolous. See, e.g., Cruz v. Am. Broad. Cos., 17cv8794 (LAK), 2017 WL 5665657, at 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 (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), ECF No. 24 (S.D.N.Y. Jan. 4, 2018) (Mr. Liebowitz voluntarily dismissed the case before responding to Judge Abrams's 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.); Leibowitz v. Galore Media, Inc., 18cv2626 (RA) (HBP), 2018 WL 4519208 (S.D.N.Y. Sept. 20, 2018) (denying motion for reconsideration of order to post security for costs); see also Tabak v. Idle Media, Inc., 17cv8285 (AT), ECF No. 5 (S.D.N.Y. Oct. 31, 2017) (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 (S.D.N.Y. Nov. 14, 2017) (same). Mr. Liebowitz has been admonished for repeating arguments that "have no basis in law." Terry v. Masterpiece Advertising Design, 17cv8240 (NRB), 2018 WL 3104091 at (S.D.N.Y. June 21, 2018). Mr. Liebowitz has also been sanctioned for failing to comply with court orders and for failing to produce materials during discovery. Romanowicz v. Alister & Paine, Inc., 17cv8937 (PAE) (KHP), ECF No. 24 (S.D.N.Y. June 22, 2018) (ordering Mr. Liebowitz to pay $200 to the Clerk of Court as a consequence of his failure to comply with an Order directing him to file an affidavit of service of a Default Judgment); Ferdman v. CBS Interactive, Inc., 17cv1317 (PGG), 2018 WL 4572241 (S.D.N.Y. Sept. 21, 2018) (discovery sanctions). Mr. Liebowitz has filed nearly 200 cases in this district in 2018 alone, often times filing multiple cases on the same day.

Nevertheless, Mr. Liebowitz argues that his conduct does not comport with the definition of term "copyright troll" because copyright trolls engage in a narrower type of behavior: specifically, multi-defendant John Doe litigation brought by the copyright holders of pornographic material. This argument is unavailing.

First, simply because the term is also invoked in another type of case does not preclude its application here. Second, the article that Mr. Liebowitz cites for the proposition that the term applies to enforcers of copyrights in pornography explains that such practices are just "a particular kind of copyright trolling." Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa L. Rev. 1105, 1108 (2015) (emphasis added). The article, and courts that cite it, define the "essence of trolling" as something broader: "seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim." Id.; see also Creazioni Artistiche Musicali, S.r.l. v. Carlin America, Inc., 14cv9270 (RJS), 2017 WL 3393850, at (S.D.N.Y. Aug. 4, 2017). As evidenced by the astonishing volume of filings coupled with an astonishing rate of voluntary dismissals and quick settlements in Mr. Liebowitz's cases in this district, it is undisputable that Mr. Liebowitz is a copyright troll.

This Court has generally shown Mr. Liebowitz leniency, despite his questionable tactics. In this case, the Court declined twice to award the defendant attorney's fees. In another, the Court imposed a bond on Mr. Liebowitz's client in an amount that was less than a tenth of the request made by the defendant. See Reynolds v. Hearst, 17cv6720 (DLC), 2018 WL 1229840 (S.D.N.Y. Mar. 5, 2018). In yet another, the Court modified sanctions imposed on Mr. Liebowitz to "more directly address the deficiencies in [his] performance … and deter their repetition." Steeger v. JMS Cleaning Services, LLC, 17cv8013 (DLC), 2018 WL 1363497, at (S.D.N.Y. Mar. 15, 2018).

In this case, the February 22 Opinion used an apt term to describe Mr. Liebowitz's copyright litigation practice. He has not shown that doing so has burdened him with any undue and extreme hardship. Press coverage that accurately summarizes the status and outcomes of Mr. Liebowitz's cases in this District does not present an undue and extreme hardship….

You can read Mr. Liebowitz's side of the story in his motion; here's an excerpt from the Introduction:

Liebowitz Law Firm, PLLC has filed more than 600 Cases in SDNY and EDNY since January 2016. But the firm also represents over 350 clients, thousands of copyright registrations, and tens of thousands of copyrighted works. The number of lawsuits filed by the firm primarily shows that: (a) violation of the Copyright Act via unauthorized use of photographic materials is an epidemic; (b) the Liebowitz Law Firm is vindicating the public interest by ensuring that a proper licensing market exists for the work of photographers; and (c) individual photographers are retaining Liebowitz Law Firm to file federal lawsuits because there is no other means for them to enforce their rights, particularly given the Congressional failure to establish a Copyright Court to help streamline these types of claims.

In response to Liebowitz Law Firm's good faith efforts to enforce the Copyright Act on behalf of individual working-class photographers, the District Court has labeled Richard Liebowitz, the firm's principal and founder, a "copyright troll." The term "troll," when applied to an actual human being, is never used as a compliment. It is meant to defame, degrade, and stereotype a person as a villain. It is intended to invoke wide-ranging negative connotations that suggest harassment, abusive practices, depraved motivations and even illegality. Once a person labels another as a "troll," certain truths become self-evident, the most obvious being that any actions taken by the so-called "troll" will be perceived through the lens of that negative stereotype, and any judgments rendered will inevitably function to confirm that hostile perception.

On February 22, 2018, the District Court entered an order in which it became the first and only court to sua sponte label Plaintiff's counsel, Richard P. Liebowitz, a "copyright 'troll.'" See McDermott v. Monday Monday, LLC, No. 17CV9230 (DLC), 2018 WL 1033240, at *3 (S.D.N.Y. Feb. 22, 2018) ("Plaintiff's counsel, Richard Liebowitz, is a known copyright 'troll,' filing over 500 cases in this district alone in the past twenty-four months.") On its face, the Court affixed this derogatory label to Mr. Liebowitz for no other reason than the number of cases his law firm has filed during the last two years. The District Court did not explain why it was "known" that Mr. Liebowitz was a "troll," or where the Court obtained such knowledge. Despite filing over 600 cases in two years, no other judicial officer in any case in any district had ever stereotyped Mr. Liebowitz or his firm as a "troll". Then, less than a week later, on February 28, 2018, the District Court invoked the "troll" label again to describe Mr. Liebowitz. This time, it was to impose a punitive monetary sanction of $10,000 against the attorney. See Steeger v. JMS Cleaning Servs. LLC, No. 17CV8013(DLC), 2018 WL 1136113, at *1 (S.D.N.Y. Feb. 28, 2018) (beginning its decision: "Paul Steeger filed this copyright action. He is represented by Richard Liebowitz, who has been labelled a copyright "troll."") Significantly, the District Court did not expressly state in Steeger that the "troll" label, as applied to Mr. Liebowitz, was originated by the District Court itself. Finally, on March 5, 2018, the District Court once again invoked the negative stereotype, gratuitously labeling Mr. Liebowitz a "copyright troll" for no other reason than to justify an adverse ruling against his client-photographer Ray Reynolds. See Reynolds v. Hearst Communications, Inc., No. 17CV6720(DLC), 2018 WL 1229840, at *4 (S.D.N.Y. Mar. 5, 2018) ("Mr. Liebowitz has filed over 500 cases in this district in the past twenty-four months. He has been labelled a copyright 'troll'").

In less than two weeks, the District Court issued three adverse rulings which unjustifiably characterized Mr. Liebowitz as a "copyright troll." The District Court could have issued the same decisions without invoking such a broad-sweeping, defamatory stereotype. As grounds for redaction, Liebowitz respectfully submits that the District Court erred by using that term to describe Mr. Liebowitz and, by extension, his law firm and its 350+ clients. Because the term "copyright troll" has been ostensibly used by the Court as a legal term of art, the Court's usage may be appropriately challenged as a mistake of law under Rule 60(b)(1). In the alternative, if the term "copyright troll" is not a legal term of art, but has merely been invoked to disparage and defame Liebowitz Law Firm for representing a large number of working-class photographers, then the District Court should redact such invective under Rule 60(b)(6) as it works "an extreme and undue hardship" on Liebowitz's ability to enforce the Copyright Act in furtherance of the public interest.

Accordingly, because the District Court's use of the term "troll" is a plainly erroneous mistake-of-law and highly prejudicial to Liebowitz Law Form and the Authors it represents, the Court's order should be amended to redact the term "copyright troll" from the decision.

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  1. If he were a copyright orc, at least he wouldn’t have to avoid exposure to sunlight…

  2. I have to side with Liebowitz. “Copyright troll” in my experience refers to copyright owners who employ scattergun litigation, not their counsel. Those counsel might specialize in copyright trolling but not be trolls themselves.

    1. It’s unclear to me why he’d prefer being referred to as “copyright troll lackey”, but if he insists, I suppose the opinion could be edited to refer to him that way.

    2. That’s not what Liebowitz argued. I’m mostly disappointed that the etymology of the term wasn’t recounted by the court. I’ve always thought the fishing term was relevant, and it certainly is for many of Troll Liebowitz’s cases.

      1. Judge Cote was simply wrong to apply the term, as she defined it, in the first place.
        Liebowitz did make the argument that he is not the owner!
        And, the Order denying redaction does not address this essential argument in Liebowitz’s motion.
        It seems she was wrong to indicate that FRCP 60(b)(1) does not apply. No doubt, she is free to deny the requested relief, but she did so in a sloppy, defiant manner, with some gratuitous misdirection added.

        The Order also includes sloppy cites — None of the cases cited as support for the interpretation of FRCP 60(b)(1) are discussing 60(b)(1), but instead address other parts of 60(b).

        1. Richard Liebowitz, is that you?

          1. Nope. First read the Motion to Redact and the Order this morning.
            The Order shows a judge that should exercise more humility — the original mistake was wrong but excusable. Such mistakes are what FRCP 60 is for.

  3. Mr. Liebowitz did not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district.

    I’d redact the term and make him pay the defendant’s fees.

    1. My first thought was if I was that judge, I would’ve reopened the decision denying the defendant fees and entered the opposite result.

      1. I thought judges were supposed to be, well, prudential, basing their decisions on the merits. How did the merits of the earlier fee question change due to this latest redaction request?

  4. There’s a lot of reading before you get to the part where the court determines that the lawyer is, in fact, a copyright troll. This point should have been first, followed by the explanation of why it is used appropriately.

    In the excerpt provided, I don’t think he is, for a simple reason… copyright trolls own copyrights. He isn’t a copyright troll, he works for one.
    What he is appears to be a sloppy lawyer, if he didn’t bother to finish the paperwork and make sure he was suing in the right district, or at least be able to show why he thought he was. That’s what the court should have scolded him for, and identified him as. (Among other things, that’s in the court’s wheelhouse.)

    1. IIUC you are saying that he is a copyright troll chaser in the vain of ambulance chasers?

      1. More or less, though I wouldn’t put it that way, either. I’m sure he has a nice office and doesn’t have to chase after his customers much, if any. Which isn’t saying much, since the same is true of mob lawyers.

        1. Flame,
          In the vein, I believe. (not ‘vain’ . . . and not vane either, for that matter). 🙂

      2. in the same vein

    2. I’m not sure about his cases but there is plenty of evidence in other cases that the lawyers are in fact aligned with the companies selling the tracking service who approach copyright holders to monetize their copyrights by tracking downloads and suing. Sort of like a contingency fee lawyer might advertise on TV or “troll” for any one of a number of types of clients or cases.

  5. I’m sorta with the lawyer on this. 1. I don’t think he’s a troll, as prior posters have noted. 2. I really hate when someone calls you “X,” and then, later, says again, “You have been described as an X.” I find that dishonest . . . it would be truthful to say, “*I* have described you as an X.”, of course.

    In the future; I hope this court ceases calling Mr. Liebowitz a troll. Instead, be more accurate and call him, “. . . a lawyer who has acted apparently unethically and/or negligently on many many prior occasions.”

    I see nothing remarkable in the volume of cases that he has filed. This is his niche in the law. Copyright infringement is a BIG DEAL for professional and semi-professional photographers, in the era of the internet. I do not see this as analogous to lawyers who file countless ADA violation suits against small business owners who have a minor violation, and when those owners were not even given a chance to correct said minor defects. I applaud Mr. L’s efforts to get some recovery for plaintiff photographers who really have no other viable recourse for having their images stolen and used online. (Of course, it should go without saying that this lawyer should run his practice in an ethical and competent fashion . . . and all available evidence suggests that–fairly often–he does not do this.)

  6. Moving for “redaction” was a bit odd — what he objected to was being characterized as a troll, and what he really wanted was for the judge to retract the characterization. Which she declined to do.

  7. Did publishers (defendants) misappropriate the works of Mr. Liebowitz’ clients? Unlawful use of photographers’ property (theft, one might say) appears to be a substantial problem. Attempting to vindicate the interests of victimized photographers seems reasonable — in general — and a poor foundation for labeling someone a troll.

    Sloppy work should be criticized, though — also in general.

  8. As evidenced by the astonishing volume of filings coupled with an astonishing rate of voluntary dismissals and quick settlements in Mr. Liebowitz’s cases in this district, it is undisputable that Mr. Liebowitz is a copyright troll.

    Does that even make sense? Nothing I saw from the judge quantified a “rate” of voluntary dismissals. Quick settlements suggest (at least in principle) justified cases. Given the volume of copyright infringements on the internet against photographers, there would need to be thousands of lawyers, each filing cases by the hundreds, to even begin to redress the problem.

    Maybe there was lawyerly misconduct in some fraction of cases (a large fraction, or a small one, we do not find out). Maybe it was a by-product of a business model built around trying to redress expeditiously a lot of small-money claims. When does misconduct of that sort that amount to being a “troll?” I do not know the answer, and I doubt the judge does either. Which suggests to me that using the term was a mistake by the judge.

    Suppose a lawyer doing an honest and competent job trying to redress copyright violations for justly aggrieved clients. Are there lawyers here who think that anyone but a judge publishing that such a lawyer was a copyright troll would not amount to libel? I suppose not, so long as it was published as a description of an allegation made in court, by anyone.

    1. “Quick settlements suggest (at least in principle) justified cases.”

      Not necessarily. The purpose of a copyright troll is to bring lawsuits that sophisticated defendants will want to settle as quickly as possible to avoid litigation costs. An offer of nuisance is most valuable if made as quickly as possible. And the quick acceptance of an early, nuisance-value settlement offer is great evidence that the original claim was without merit.

      “When does misconduct of that sort that amount to being a “troll?””

      In this particular case, it was the apparent misrepresentation by the lawyer to the court that the defendant transacts business in New York. You’re not supposed to lie to the court.

      1. To be fair to the troll(‘s lawyer), they may have believed that the defendant does business in NY, and expected discovery to support that belief.

        The problem is that they didn’t explain WHY they thought the other party did business in NY. If they did, filing in NY saves the plaintiff from the hassle of either getting a local counsel or getting the current lawyer admitted to practice in a distant venue, plus the costs of actually traveling there to litigate. Sure, it would have been inconvenient for defendant, but if I have to choose convenient for me or convenient for you, I’m probably going to pick me, and you’re probably going to pick you, and there’s no point complaining that so did plaintiff. Unless (oops) the court plaintiff DID pick lacks personal jurisdiction over defendant.

        1. “To be fair to the troll(‘s lawyer), they may have believed that the defendant does business in NY, and expected discovery to support that belief.”

          If he believed discovery would prove up sufficient minimum contacts with New York, he would not have dismissed his lawsuit. It’s more likely that troll assumed the defendant made money off his client’s picture, but realized when the defendant files its motion to dismiss that the troll’s client had no copyright infringement claim based on the defendant’s use of the photograph, as the irrefutable evidence was that the defendant wasn’t selling the photograph at all, much less to anybody in New York.

          Although you might not be required to plead facts supporting personal jurisdiction in New York, the facts that would support personal jurisdiction (minimum contacts with New York) would also be the facts that support a copyright infringement claim (non-exempt use of the photograph). If he didn’t have the goods, he shouldn’t have filed the lawsuit in the first place. He knows that (hence the dismissal).

          1. “If he believed discovery would prove up sufficient minimum contacts with New York, he would not have dismissed his lawsuit”

            Unless what he believed changed in the interval between filing and dismissal.

            Whether the defendant is making a profit at all isn’t a necessary element of copyright infringement.

            1. No profit speaks to fair use exception.

              1. Using the whole photo speaks against it.

      2. I recall being victimized by a patent, as opposed to copyright troll. Our attorneys advised us we had a very strong defense, which would cost about $20,000 in fees.

        Not quite astonishingly, the troll offered to settle for $15K.

        1. You might want to look into newegg’s strategy. They fight the patent trolls and usually win, that seems to deter other trolls. In one case one of the companies sued what turned out to be a subsidiary of newegg that most people didn’t realize they owned. The Troll quickly dropped the case when newegg showed up in court.

    2. Are there lawyers here who think that anyone but a judge publishing that such a lawyer was a copyright troll would not amount to libel?

      Yes.

      See, e.g., the New Hampshire Supreme Court’s recent decision in Automated Transactions LLC v. American Bankers Association: calling someone a patent troll, though obviously intended to be pejorative, is nonactionable opinion.

      1. Doesn’t the libel decision in Automated Transactions LLC v. American Bankers Association rely on the notion that referring to someone as a patent troll constitutes “opinions or otherwise not actionable factual assertions” whereas in the McDermott v. Monday Monday, LLC Order denying redaction, Judge Cote seems to indicate that the reference to Liebowitz as a copyright troll was not “an opinion” but a factual and definitionally accurate statement, and not a subjective opinion?

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