This is the story of my battle with a copyright troll. The creature emerged from cyberspace, threatening my client with litigation and demanding an extortionate payout. I battled this troll and sent it back to the cave from which it came.
This image is a clay sculpture created by my 10-year old daughter. I figured this is a good representation of a physical manifestation of a copyright troll. I took this photo myself and my daughter gave me a "license" to use her sculpture. Using your own content online is the only way to guarantee you won't be attacked by a copyright troll.
What is a Copyright Troll?
A “copyright troll” is someone who makes a living by litigating against people and businesses who unwittingly or carelessly share copyrighted content online. Copyright law exists to encourage and incentivize the publication of creative works. Copyright trolls abuse the system by extorting money from business owners who lack the resources to defend themselves in court.
Please don’t read this article as me being unsupportive of creatives enforcing their rights. I’ve represented copyright plaintiffs against infringers in court. If you created copyrighted content and someone infringed on that copyright, then you should be compensated. If you create content and copyright that content, then you absolutely should have the right to create income or make a living from your content. Today I’m talking about people who don’t create revenue from using their own content, but rather from extorting settlements from people who unwittingly use the content.
The Troll Emerges
Last year a client forwarded an email to me that had her a bit frightened. The email was from a copyright mill demanding $1,700 in damages because my client’s blog allegedly contained an image that belonged to someone else. The email contained a link with detailed information about the claim.
The link went to a page that had enough information that one might feel tempted to pull out the checkbook. They showed us a screen shot of my client’s blog post – from twelve years ago – containing an image that was apparently found online. The link also showed an assignment of rights, purportedly from the owner of the image, giving this troll the power to enforce the owner’s rights against infringers. Presumably the owner and the troll had a profit-sharing agreement. Frankly, the entire operation was impressive and intimidating. I see why someone might be tempted to pay a couple thousand bucks to make the problem disappear. That certainly costs less than defending a lawsuit.
A quick word about reproducing images found online. For example, if you write a blog post and want to include images to bring life to the post and encourage engagement and clicks, you need to be very careful before posting content found online. If you reproduce unlicensed content that is owned by a third party, especially a litigious one, you can expose yourself to an expensive and totally avoidable problem. Always ensure you have a license to reproduce any content online. This includes text, images, video, artwork, or sound. The only failsafe way to ensure you don’t get sued is to only post content you created yourself or for which you have written permission (called a “license”). The photo at the top of the article is an example of this failsafe method - I took the photo myself. While I did not create the sculpture, my daughter, the creator, gave me a license to use it for this article. (Thanks Julia!)
I should also mention how damages are calculated in copyright cases. There are two measures of damages: the infringer’s profits gained from the infringement; or the owner’s lost income.
Now a word about litigation. The troll was threatening to sue my client and was demanding money (17 hundred-dollar bills) to “amicably” resolve the dispute (the troll kept using this annoying word - there was nothing "amicable" about this experience). Copyright infringement claims are within the exclusive jurisdiction of the federal court system. Copyright claims can only be litigated in federal court. Litigation is very expensive. The filing fee just to initiate the lawsuit is $400. It takes tens or hundreds of thousands of dollars in attorney and expert fees to move a case through the docket to trial. Regardless of how this copyright troll might structure a fee agreement with counsel, it would be grossly inefficient to commence a lawsuit on a claim belonging in small claims court (under $10k in California).
I knew a couple things about the $1,700 settlement demand: (1) it was unsubstantiated; and (2) it was a bluff.
Back to the Troll Story
My client delegated blog content creation to a contractor. The client probably wasn’t keeping a close eye on the blog, as she was focused on practicing her profession. About twelve years ago this independent writer may have carelessly used an image she found online. I have no idea how or where the image was found, but the image ended up on my client’s 12-year old blog post.
I knew this troll had no damages. It is impossible to trace profits to a single image on a 12-year old blog post. The photographer who owned the image was in a different field than my client, and there was no chance this person lost income because of the image being used on a blog post.
I figured this copyright mill has hundreds, if not thousands, of similarly extortionate demands in process. They’re looking to make a quick buck and get out. They aren’t looking to actually litigate a case, nor do they want to argue with defense attorneys. Every minute they spend arguing with me, they could be extorting someone else who doesn't have counsel. Moreover, the demand was written by a “case manager,” not a lawyer. No law firm was putting its name behind this shakedown.
Another factor was personal jurisdiction. The troll was in one state, and my client was in another. My client was a licensed professional who worked in her home state, and had no presence in the troll’s state, or the state of the purported owner of the image. Unless you can prove contacts with a foreign state sufficient to establish jurisdiction, and personally serve the party with the complaint in the foreign state, you have to sue the defendant in his or her home state. If you’re in North Carolina and seek to sue a California resident, you likely must sue (and serve) the person in California. I was banking that this troll did not have the resources to sue my client out of state.
I was dealing with a copyright mill, not a law firm. The mill would have to send the matter to outside counsel for litigation. The mill itself could not file suit.
Because this person had no damages, litigation was prohibitively expensive, and I wasn’t even dealing with a lawyer, I knew a couple things about the $1,700 settlement demand: (1) it was unsubstantiated; and (2) it was a bluff. I reached these conclusions before sending the first email.
I introduced myself to the troll via email and said I was counsel for the alleged infringer. I requested information to substantiate the claim, and the case manager happily complied. They showed the image in question on my client’s blog and the alleged assignment of rights, then repeated the $1,700 demand, coupled with a litigation threat.
Every time we corresponded I requested a copy of the owner's copyright registration for the image in dispute. Every time I requested the registration, the request was ignored. Whenever you publish new content a “common law” copyright is established at the time of creation. However, if you want to sue in federal court and have statutory remedies at your disposal, you must have an actual copyright registration, and the registration must be attached as an exhibit to the complaint. The lawsuit is subject to dismissal without an actual registration. To get a registration you must pay a fee and submit an application to the U.S. Copyright Office.
I asked the troll for a copy of the registration. Given that they mentioned litigation in every communication, they certainly were ready to sue and they had the registration in their file, right? Each time I requested the registration the case manager replied that they were under no obligation to show it to me. They were correct. Outside of court, during informal negotiations, they had no duty to show me anything. However, if they wanted me advise my client to pay anything, they had to demonstrate to me they were serious and ready to sue. I knew they weren’t getting inside a federal courthouse without the registration, so I hammered them on this missing document. “If you don’t have a copyright registration for the image, then you cannot maintain a lawsuit! Stop threatening litigation you know you cannot file!”
We played this game through a series of emails. The troll would knock its club on my door, threatening litigation unless we “amicably” paid them $1,700, I would ask to see their registration, they said they didn’t have to show it, and I called their bluff. Rinse and repeat.
I decided I was done playing with the troll after we repeated the process a few times. I knew they weren’t going to sue, and the emails were becoming tiresome and repetitive. I told the troll she was not a lawyer, yet she was arguing the nuances of copyright law while demanding money on behalf of a third party. Negotiating a legal dispute on behalf of a third party, demanding money in exchange for a release, is the unauthorized practice of law. Practicing law without a license is illegal. This isn’t even a grey area. I would no longer engage with a non-lawyer who is breaking the law. If they had a lawyer, who was willing to share a copyright registration with me, then we could have a conversation. Otherwise, I said I was no longer wasting my time and would cease engaging with this person.
I never heard from the troll again, my client did not get sued, and the shakedown ended. The troll moved on to another victim.
Troll Proof Your Website
Please review your website, including your blog, and ensure you don’t publish any content that isn’t owned by you or isn’t licensed to you. You don’t want to invite a copyright troll inside, and you certainly don’t want to attract a troll who isn’t bluffing about filing suit. If you do receive a demand from a copyright troll, or anyone demanding damages for copyright infringement, immediately contact a lawyer and do not engage on your own. Do not try this at home!