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”