Beware the Copyleft Trolls
The scam works a little like this:
A photographer posts their work online under an outdated Creative Commons license, such as version 2.0, that does not give licensees the right to fix license problems within 30 days of notice, as do the current CC 4.0 licenses.
The photographers lurk until someone unwittingly posts the photograph online without proper attribution.
Then, they sue. And they sue. And they sue.
This is the topic of my most recent legal research paper, “Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry.” I’ll be presenting it in the Law & Policy Division of AEJMC at the virtual annual conference in August.
I became interested in this topic because it happened to me — or at least, to people I try to help, the students in the non-profit online news publication here at my university. A student posted a stock image from a German photographer named Marco Verch that was under a CC-BY (version 2.0) license. They used it as a thumbnail to link to a news story without the attribution. Months later, they got a demand letter requesting $750 to retroactively license the photo, ending with the line, “failure to resolve this matter of unlicensed use within 21 days will result in escalation to one of our partner attorneys for legal proceedings.”
I checked and, indeed, Verch had filed dozens of lawsuits in U.S. federal courts in recent years, including 41 cases in 2019 and 2020 alone. He employed Pixsy, a company that aids photographers in extracting cash from users who posted their photos online. Pixsy, in the demand letter, noted that taking the photo down or correcting the attribution wasn’t enough: “Removal of the image from your website does not resolve the period of unlicensed use, and it remains that our client be compensated for the previous use of their work.”
In short, facing a lawsuit and months of litigation, with a seemingly uphill battle over fair use and thousands of dollars of costs, we just negotiated down the demanded fee and settled. It was an expensive copyright lesson learned in our student newsroom.
Verch’s scam is a profitable one. He posts stock photography he savvily generates to meet market demand, such as images of “face coverings, test tubes and people wearing masks” that he put on his website at the start of the COVID-19 outbreak in 2020. Then, he waits for someone to slip up on the CC-BY-2.0 attribution. And he pounces.
This is, of course, perfectly legal under modern U.S. copyright law. He’s won thousands of dollars in default judgments against companies using his photos, including $6,500 damages with $2,975 in attorney fees in one lawsuit in 2020 in the Northern District of Texas (Verch v. White Rock Security Group). And Verch is an amateur compared to Larry Philpot, a country music photographer who has filed more than 150 copyright infringement lawsuits across the country over the past decade for his CC-licensed works, extracting thousands of dollars of settlements and damage awards and getting him called a “copyright troll” more than once by federal judges.
What can be done about these photographers, whom I describe as “copyleft trolls” who abuse the entire point of the copyleft movement — intended to serve as an alternative to copyright law in the digital age by encouraging sharing through a “some rights reserved system” — by turning Creative Commons licensing into a high-volume litigation tool? (Cory Doctorow gives a good summary of the CC and copyleft ethos in this interview.)
I looked at how courts are handling these cases, in which a few brave litigants have pushed back against Philpot in particular. Judges don’t like Philpot, and like judges in the Righthaven copyright troll cases several years ago, they are finding creative ways to apply the fair use doctrine to protect unwitting users facing lawsuits that could break them financially.
For example, the Eastern District of Virginia found fair use by a conservative Christian website that posted two of Philpot’s photos — one of Kenny Chesney and one of Kid Rock — finding a “transformative” purpose. Rather than the posts being about their musical performances, the secondary use was for “informing citizens about pro-life celebrities and conservative celebrities running for political office,” in part because they changed “the way in which viewers experience the Photographs.” Similarly, the Northern District of California said it was possible that a website could establish fair use for posting one of Philpot’s photos of Willie Nelson that it had posted on Facebook over an inspirational quote (“Rednecks, hippies, misfits — we’re all the same. Gay or straight? So what? It doesn’t matter to me. We have to be concerned about other people, regardless. I don’t like seeing anyone treated unfairly. It sticks in my craw. I hold on to the values of my childhood.”), saying it was plausibly used for transformative political purposes.
Courts are also suggesting that Philpot doesn’t suffer economic harm because his photos have no value outside of litigation; he once testified that he had made “tens of thousands of dollars” from his Willie Nelson photo, but admitted that it was entirely from “settlements he had extracted” for failing to attribute under the CC-BY license. As Western District of Texas Judge Andrew Austin noted in a 2019 case, Philpot “is more in the business of litigation (or threatening litigation) than selling his product or licensing his photograph to third parties” who “seems to want to use the courts as a blunt object with which to coerce nuisance value settlements from unsuspecting parties.”
In the paper, I look at three issues in particular: (1) expansive fair use arguments courts are entertaining to make copyright litigation harder for copyleft trolls like Philpot; (2) the limited damages courts are awarding in these cases; and (3) the general distaste they express for this kind of litigation. In short, courts are finding “transformative purposes” by secondary users (instead of “transformative uses”) under the first factor of the fair use analysis, and they are finding little to no economic harm under the fourth factor, expressing skepticism that lack of attribution is the equivalent of financial loss, thus requiring Philpot and his ilk to make a more robust showing on the record of actual economic harm outside of nuisance lawsuits. Courts are also pushing back at automatic awards of attorney fees when Philpot has won his infringement lawsuits, finding enough merit in defendants’ fair use claims that they do not want to deter such arguments in the future.
The paper concludes with a look at how the new Copyright Claims Board might, unfortunately, enable copyleft troll lawsuits like these by favoring high-volume litigants and repeat players. Courts already award less than $30,000 in damages in these kinds of cases, and the CCB may just be a new place for services like Pixsy to steer their clients for a quick payday.
A draft of the paper is available on SSRN here. Spoiler alert: It has a footnote citing The Hobbit at the end.