The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From yesterday's decision by Judge Richard J. Sullivan (S.D.N.Y.) in Hughes v. Benjamin:
Defendant Carl Benjamin, also known as "Sargon of Akkad," brings this motion for attorneys' fees pursuant to 17 U.S.C. § 505 following the Court's dismissal of the copyright infringement action brought by Plaintiff Akilah Hughes against Benjamin and ten "John Doe" defendants. For the reasons set forth below, the Court grants Benjamin's motion and concludes that he is entitled to $38,911.89 in attorneys' fees and costs….
On November 18, 2016, Hughes, an internet commentator and filmmaker, posted a nine-minute-and-fifty-second video titled We Thought She Would Win to her YouTube channel. We Thought She Would Win consisted of footage of Hughes at Hillary Clinton's campaign party at the Jacob Javits Convention Center in Manhattan on November 8, 2016, the night of the 2016 presidential election. (Opinion at 2.) In the video, Hughes related the night's events and commented on the implications of Secretary Clinton's defeat by now-President Donald Trump.
The next day, Hughes discovered that Benjamin, a fellow YouTuber but with a decidedly conservative/libertarian bent, had posted a video titled SJW Levels of Awareness to one of his YouTube channels. Benjamin's video consisted entirely of six clips from We Thought She Would Win, totaling one minute and fifty-eight seconds, spliced together. Hughes responded by submitting a "takedown notice" to YouTube pursuant to the Digital Millennium Copyright Act ("DMCA"), which led to YouTube disabling public access to Benjamin's video. Benjamin immediately emailed Hughes and requested that she withdraw the takedown notice, asserting that his video fell within the fair use exception to the Copyright Act as parody or satire. Three days later, after Hughes refused to withdraw her notice, Benjamin sent YouTube a DMCA counter notification, asserting that SJW Levels of Awareness was "entirely transformative and intended for parody." Thereafter, YouTube reinstated public access to Benjamin's video.
On August 25, 2017, [sued, alleging] … that Benjamin infringed on her copyright of We Thought She Would Win through his public posting on YouTube and Twitter of SJW Levels of Awareness. Throughout the course of this litigation, Hughes prominently referenced Benjamin and the ongoing suit on Twitter. For instance, on December 8, 2016, Hughes tweeted that she had "a [C]hristmas present on the way" for Benjamin, referring to the lawsuit. On October 28, 2018, Hughes tweeted that she was "currently suing [Benjamin's] white supremacist ass for stealing [her] content." Two months later, Hughes referred to Benjamin in a tweet as a "carnival barker" and expressed a desire to convince the crowdfunding platform GoFundMe to terminate Benjamin's campaign to fund his legal costs for this action and to "bankrupt" Benjamin with a libel suit. And on February 12, 2019, Hughes replied to a tweet predicting that she would lose her copyright lawsuit by declaring that she was "gonna take hundreds of thousands of dollars USD" from Benjamin.
On February 3, 2020, the Court concluded that SJW Levels of Awareness plainly fell within the fair use exception to the Copyright Act and dismissed Hughes's complaint. In particular, the Court determined that "a reasonable observer who came across [Benjamin's video] would quickly grasp its critical purpose," that "Benjamin's target audience (generally political conservatives and libertarians) is obviously not the same as Hughes's target audience (generally political liberals)," and that "the fair use defense clearly applies based on the face of Hughes's complaint and a review of the videos themselves."
Prevailing parties in copyright cases may get their attorney fees paid by the loser, but aren't categorically entitled to them. Here's the judge's explanation for why Benjamin should be awarded the fees:
Although courts possess "broad leeway" to award fees under § 505, that discretion should be exercised with an eye towards furthering the Copyright Act's purpose: "enriching the general public through access to creative works." While this is necessarily a holistic inquiry, the Supreme Court has identified several factors—termed the Fogerty factors—that help guide the analysis: "frivolousness, motivation, objective unreasonableness[,] and the need in particular circumstances to advance considerations of compensation and deterrence." Of those factors, the objective unreasonableness of the losing party's position carries the most "weight." But no one factor is necessarily dispositive. Indeed, a court may award fees even where the losing party put forward reasonable arguments, so long as an award would further the Copyright Act's goal of ensuring public access to new creative works.…
[1.] Objective Unreasonableness
Objective unreasonableness, which should be given "substantial weight" when determining whether to award fees, "is generally used to describe claims that have no legal or factual support." … Here, Hughes's claims were objectively unreasonable—a fact that was clear from the face of the complaint and the videos at the heart of the dispute….
[2.] Improper Motivation
Benjamin argues that Hughes brought this suit to silence her political opponents and critics and to generate publicity for herself…. Here, the Court has little difficulty concluding that Hughes's dual goals in bringing her baseless suit were to inflict financial harm on Benjamin and to raise her own profile in the process.
Improper or bad faith motivations are generally difficult to discern, as litigants often have a variety of objectives and may obscure their baser ones behind a veil of legitimate-sounding claims. In this case, however, Hughes openly discussed her improper motivations on both Twitter and her website. Indeed, Hughes admitted to potentially hundreds of thousands of followers that she intended to (i) "bankrupt" Benjamin (Doc. No. 43 at 2), (ii) stymy his attempts to crowdfund his legal costs, and (iii) use copyright laws to silence her political opponents and critics. Other posts, including her public boasting about the legal dispute on her social media accounts (even describing her complaint as a "[C]hristmas present" for Benjamin) and her public belittlement and celebrity-style feuding with Benjamin, strongly suggest that Hughes intended to sensationalize the litigation to elevate her own public profile and achieve a secondary financial gain. Together, then, Hughes's public comments reveal an intent to abuse the legal system in order to further a personal agenda that had little to do with the Copyright Act….
[3.] Compensation and Deterrence
Compensation and deterrence, two equitable considerations that courts must also assess, exist for the dual purposes of incentivizing parties with strong claims to litigate them and deterring parties with weak claims from embarking on wasteful litigation.
Hughes makes much of the fact that Benjamin's GoFundMe campaign raised over $120,000—much more than the approximately $40,000 he expended to defend this case. But that fact alone does not preclude an award of attorneys' fees. Indeed, courts frequently allow recovery even where the prevailing party did not actually suffer financial harm, as in cases where a third party provided or paid for the prevailing party's legal services. Put simply, a litigant's good luck in having the financial wherewithal to defend against a frivolous suit—whether because of insurance, a GoFundMe campaign, a rich uncle, or a pro bono lawyer—does not automatically immunize the losing party from the consequences of her actions.
And compensation aside, the Court must also consider deterrence…. "Fee awards are a double-edged sword: They increase the reward for a victory—but also enhance the penalty for a defeat." …. While Benjamin may not be out of pocket any money, awarding fees will still further the important goal of deterring Hughes and other would-be litigants from engaging in similarly abusive conduct in the future—an outcome that is tightly aligned with the Copyright Act's goal of facilitating the general public's access to creative works.
Indeed, because Hughes does not owe Benjamin any damages, a fee award is the only financial consequence that the Court may impose on Hughes to deter this conduct going forward. And Hughes's self-serving claim that the public backlash she has received from losing this suit is sufficient deterrence is not persuasive, particularly since Hughes herself played an integral role in publicizing the litigation. It also bears noting that Hughes has never claimed that she is unable to pay Benjamin's fees or that she will suffer extreme financial hardship if ordered to do so.
In short, Hughes endeavored to profit from an objectively unreasonable and frivolous suit by promoting her online profile while at the same time forcing Benjamin to wastefully devote time and resources to defending a baseless action. Since the goals of the Copyright Act are more likely to be advanced by an award of attorneys' fees, the fact that Benjamin had the support of third-party contributors through his GoFundMe campaign, though relevant, does not insulate Hughes from paying an award. Accordingly, the Court will order Hughes to pay Benjamin's fees and costs for this litigation….