8:31am PT by Eriq Gardner
Judge Refuses to Let Notorious Media Foe Redact "Copyright Troll" from Ruling
When it comes to filing mass litigation against media outlets, there's no one quite like Richard Liebowitz, who mostly represents photographers and has brought one copyright lawsuit after another. In fact, in the past two years alone, he's filed more than 700 lawsuits, and in the interest of full disclosure, The Hollywood Reporter has been one of the defendants. Then again, there's hardly a media outlet out there that has escaped his wrath. He's supposedly the one lawyer that "every media company fears." Plus, he's sued others, including IMDB over a photo of an actor playing Spider Man, and the Trump Organization after Donald Trump posted a photo of one of his own rallies on Instagram.
Apparently, though, he's sensitive about being called a "copyright troll." On Friday, a New York judge denied a strange request he made to redact the phrase "copyright troll" from a ruling earlier this year.
In this particular case, Liebowitz represented a photographer who sued an Idaho company for displaying a copyrighted photo on its website. The case was brought in New York, and U.S. District Court Judge Denise Cote subsequently slammed Liebowitz for not filing an affidavit reflecting service of the complaint and not having good reason to assert jurisdiction in New York. The lawsuit was quickly withdrawn, but then the defendant moved for attorney's fees and costs.
Cote used her discretion and declined to award fees. She cautioned Liebowitz against filing any other action in New York Southern District with a frivolous basis for jurisdiction. But that wasn't why the attorney was upset. He hated being described as a known copyright troll. And so he pursued a redaction.
"Even if it were appropriate to consider this request for a 'redaction' under Rule 60, Mr. Liebowitz has failed to explain what the refiling of the February 22 Opinion with a redaction would accomplish," responds the judge. "He has also failed to demonstrate that any modification to or redaction of the February 22 Opinion is warranted. His litigation strategy in this district fits squarely within the definition of a copyright troll."
Cote brings up the definition of a copyright troll as an entity "more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties."
The judge points to the way that more than 500 of the 700 cases that Liebowitz has filed since 2016 have been voluntarily dismissed, settled or resolved before getting to the merits-based stage. She nods to the numerous times that Liebowitz has been ordered to show cause why he shouldn't be required to post security for costs as a condition for proceeding further. She references how a number of his cases have also been dismissed as frivolous.
The judge adds, "Nevertheless, Mr. Liebowitz argues that his conduct does not comport with the definition of term 'copyright troll' because copyright trolls engage in a narrower type of behavior: specifically, multi-defendant John Doe litigation brought by the copyright holders of pornographic material. This argument is unavailing."
After providing further guidance on the art of copyright trolling, Cote writes, "As evidenced by the astonishing volume of filings coupled with an astonishing rate of voluntary dismissals and quick settlements in Mr. Liebowitz’s cases in this district, it is undisputable that Mr. Liebowitz is a copyright troll... In this case, the February 22 Opinion used an apt term to describe Mr. Liebowitz’s copyright litigation practice. He has not shown that doing so has burdened him with any undue and extreme hardship. Press coverage that accurately summarizes the status and outcomes of Mr. Liebowitz’s cases in this District does not present an undue and extreme hardship. Nor does Mr. Liebowitz explain what the reissuance of the February 22 Opinion with a redaction would accomplish."
Liebowitz sent us a comment.
" The District Court has usurped its Article III powers by propagating a false stereotype about an Officer of the Court," he says. "Our firm represents hundreds of original content creators who are entitled by the Constitution and the Copyright Act to enforce their rights in federal court against the infringers who expropriate their work without authorization. Unlike patent trolls, who do not invent anything, our clients actually create the photographs which we seek to litigate. Further, the definition of 'copyright troll' that the District Court has invoked has only been used to describe plaintiffs; but has never before been used to describe a lawyer. We are currently considering our legal options to have this pejorative stereotype redacted from the Court's record."