Updated: Apr 11, 2021
An important development in copyright litigation over the past few years is the dramatic increase in so-called “troll” cases. For example, one notorious attorney, Richard Liebowitz, has filed over 2,000 copyright infringement cases in federal district court since 2016. Based on my research, his filings have increased annually, from roughly 450 cases filed in 2017, to nearly 800 in 2019. The typical modus operandi for troll attorneys is to scour the Internet for reproductions of their client’s photographs, file lawsuits, and seek quick monetary settlements. These investigations are not limited to material currently posted online, and often cover materials that were previously removed.
How to Minimize the Risk of Copyright Troll Litigation
The best way to avoid getting sued is to avoid using content that has not been properly cleared.
Anything that involves using someone else’s content, whether photographs, images, screenshots, songs, videos, or other content, should be cleared. Everyone preparing content, including employees and outside contractors, should be trained on proper copyright clearance. This applies especially to social media posts, which are frequently posted quickly and without formal clearance. Use licensed materials and make sure that the license permits commercial use, and is not limited to personal, non-commercial use.
What to Do If You Are Sued for Copyright Infringement
Copyright trolls are known to “file first and ask questions later.” Rather than send a takedown notice pursuant to the Digital Copyright Protection Act (DMCA), or have their counsel send a cease and desist letter, copyright trolls often file and serve the Complaint, and then contact you to negotiate a monetary settlement. They will demand a number that is high enough to compensate the lawyer and client but lower than your likely defense costs. This is the essence of troll litigation.
If you are sued, you should immediately contact experienced copyright counsel. Counsel can assist with properly backing up your website to avoid any claims of “spoliation” of evidence before removing any accused content still online. You should also look into whether you have insurance that might cover the claim and defense costs.
Experienced copyright counsel can advise you on the strength of the plaintiff’s case, including whether the plaintiff is entitled to statutory damages and attorney’s fees. Counsel can also evaluate your potential defenses, including fair use, and advise you on litigation strategy.
For example, in some cases, an offer of judgment may be appropriate. This is a formal offer to settle a case on specific terms. If the plaintiff declines the offer and wins the case, but does not obtain a more favorable judgment than set forth in the offer, the plaintiff may be responsible for paying the defendant’s costs. Offers of judgment can be particularly effective in copyright infringement cases where “costs” can include attorney’s fees. You may also want to consider whether to ask the Court to require that the plaintiff post a bond to secure your potential litigation expenses.