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Summary:

Remember the hired gun lawyers who scoured the internet for copyright infringement and then took a cut of the legal settlement? If you thought those tactics vanished with notorious copyright troll, Righthaven, you’re mistaken. Here’s a look at a new form of copyright trolling.

Troll
photo: Flickr / puuikibeach

A photo company sued sports site Bleacher Report this week for using photos of New York Jets quarterback Mark Sanchez and a celebrity actress. It turns out the case is just the tip of a much larger campaign in which image owners are using a controversial legal tactic known as “copyright trolling” to pressure websites to pay up.

The term “copyright troll” is familiar to many thanks to Righthaven, an infamous band of lawyers who extracted large sums from bloggers who reproduced news clippings without permission. Federal judges became disgusted with Righthaven’s scorched earth approach and finally knee-capped it late last year.

Righthaven may be gone but its business model is still alive and well. Under this model, lawyers scour the web for copyright infringement and then take a cut from defendants who pay a settlement to avoid being sued. Unlike Righthaven, however, the new breed of copyright trolls don’t represent newspapers but instead stock photo sites.

“There’s literally thousands of letters a year. They’re just pumping them out,” said publisher Matthew Chan, who received such a letter in 2008. He has since watched the process mushroom and, in response, set up a site to track what he calls “extortion letters.”

An email posted on the site provides insight into the trolling tactic. The email is from Dan Levine, a lawyer looking to recruit other lawyers to join a gun-for-hire scheme:

Given the rampant copyright infringement on the Internet today, a virtually endless supply of such cases is available. That said, I would suggest that initially you would start with ten (10) such cases, which would enable you to begin work immediately in a way that we all can independently assess whether to pursue more together later. [see full email here]

Levine, the recruiter, promises he will provide quality leads on who to sue (“We do not go after the perverbial [sic] 14 year old blogger”) and says lawyers who pursue the cases can keep one third of the bounty. The other two thirds are presumably to be split between Levine and whoever owns the copyright to the images. Levine did not immediately respond to a request for comment.

This style of copyright trolling has gone on for some time but has largely flown below the radar. According to Chan, this is because sites like Getty and other image owners have been more restrained in filing lawsuits and rely instead on extracting quiet settlements (Righthaven, on the other hand, just sued anything that moved). Chan says the letters’ demands for payments can range from a few hundred to $20,000 per image.

All of this, of course, raises the question of whether what Getty and others are doing is fair play. After all, photographers have a right to be paid for their work. And, these days, most people have a pretty good idea that internet images aren’t just there for the taking. If Getty and others don’t enforce their copyright, what exactly are they supposed to do instead?

It’s a good point, but the issue here isn’t the principle: it’s the tactics. Nearly all of the letters and the lawsuits from the image owners aren’t about compensation for a real loss. Instead, they’re opportunistic shakedown ventures that seek penalties that are far disproportionate to the offense. Chan frames it well:

“I’m a publisher and author and I’ve been infringed on. Know how I handle it? I send an email asking them to stop.”

This is what most of us do. I hate it when people jack my writing, but almost always the offender turns out to be ignorant, careless or lazy — not a hardened thief or criminal. And almost invariably they will remove the infringing item. In the case of Bleacher Report, the complaint (see below) doesn’t say the sports site is in the habit of ripping of others’ photographs. Instead, it’s a good bet that this was an intern’s mistake rather than company policy. But instead of having an opportunity to fix the error by removing the photographs, Bleacher Report is now in a copyright purgatory that will cost it tens or hundreds of thousands of dollars.

This mess shows we need a legal system that can distinguish between the two types of infringers — the careless and the criminal. If we instead allow the odious methods used by the trolls to gain traction, more innocent people and businesses will be damaged for no good reason and the overall internet economy will suffer.

Here’s the complaint. If you’re curious, the offending photos were for a story “Hayden Panettiere, Mark Sanchez in and out as Football’s newest “It” couple”

Bleacher Report Complaint

  1. Reblogged this on Today's News.

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  2. This is a tricky wickett – I agree in some sence but don’t in other ways. If it’s some poor blogger or admin at a non- profit I symphsize but if it’s a for profit organization, train your friggin people (interns, salesmen/women) in the law.
    While I don’t agree with IP trolls, it’s really hard to track down and enforce copyright. It takes way too much time away from your main pursuit so some method is needed.
    Theft is left – ignorance is not an excuse.

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  3. It has not been confirmed that the Dan Levine who wrote this email is an attorney, but we’re certainly doing our research to find out more about him.

    Robert Krausankas
    extortionletterinfo.com team member

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  4. I don’t feel sorry for Bleacher one bit. We’ve dealt with many companies big and small who steal content and then blame it on the intern or web developer after the fact. Photographers need to make a living too.

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  5. NIce article. I wonder if a poll has ever been done to see what proportion of joe average website and blog owners actually know if their content has ever been scraped, why it matters, and to what extent they care?

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  6. As a Getty Images employee, I want to add that Getty Images takes copyright infringement seriously. Protecting our photographers’ and contributing artists’ work is of the utmost importance. Our contributing photographers look to us to ensure that they are paid whenever their work is used for a commercial purpose, and we actively track where their work has been used without a license.

    Image libraries are not like Rightshaven. Rightshaven did not have rights to license content; it only had a contractual right to sue. Getty Images, on the other hand, has rights to license content on behalf of photographers and contributing artists. We review each claim, check for a license and look to see if it is a use that should be licensed. The suggestion that we and our artists have not suffered a loss when images are used without a license is just plain wrong.

    We realize that there are many small businesses and image buyers that are new to licensing imagery and that it can be difficult to know where to begin. So in 2010, Getty Images set up Stockphotorights.com, an educational resource for image buyers, on behalf of the photographic industry, to support and inform potential image users around how to use and license content. The site is supported by BAPLA (British Association of Picture Libraries and Agencies) and PACA (Picture Archive Agency of America). StockPhotoRights.com provides image users with the information and advice they need to license images with confidence.

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