Copyright Troll Richard Liebowitz Helps Protect Free Speech & Fair Use By Losing Yet Another Case
from the it-almost-makes-you-wonder dept
Richard Liebowitz is infamous as the notoriously inept copyright troll lawyer. He’s so bad at his job that he’s been sanctioned repeatedly, and recently was suspended from practicing law in the Southern District of NY (his home court). The details of him lying under oath over and over again are simply staggering.
However, you have to give Richard Liebowitz credit for one thing: he’s so bad at copyright trolling, that he’s set some useful precedents. We wrote about one such case a year and a half ago, where Liebowitz’s greed in turning down a settlement offer ended up costing his client a ton.
Now, lawyer Dan Booth (who has gone up against Liebowitz in a variety of cases) points us to another loss by Liebowitz that is actually a win for everyone (and if you’re wondering, this ruling (in Arizona) came out before he was suspended in NY. But the ruling is important in highlighting how fair use can protect bloggers who repost articles from elsewhere.
The case was brought by Daniel Fellner, a photographer and journalist, against “Travel 4 All Seasons LLC” which is actually just a hobby website run by Alfred Hague, who admits he’s never made any money from the site. While nearly all of the hundreds of Liebowitz trolling lawsuits are filed over photographs, this one was over the fact that Hague reposted part of an article that Fellner had written about…. Pickleball on cruise ships (I don’t know what this is, and I don’t think I want to know).
Some people like to insist that an article can’t possibly be fair use. But that’s wrong. A decade ago, in the midst of another highly publicized copyright troll, Righthaven, a court also found that reposting a full article can be fair use (incredibly, in a case where the defendant hadn’t initially even raised fair use as a defense!). In this case, while Liebowtiz claimed that Hague reposted Fellner’s entire article, the actual evidence suggested that wasn’t even true.
And, again, in this case, the judge found that Hague’s reposting of Fellner’s pickleball article was absolutely fair use. First, of course, the court does the obligatory highlighting of Liebowitz’s highly sanctioned record (“Mr. Liebowitz has filed hundreds of similar actions in federal courts throughout the country and has repeatedly been cited for misconduct in this District and in many other federal courts throughout the United States.”), highlights his poor lawyering in this case (“During the course of discovery, it appears that Plaintiff requested hardly any discovery, and he did not depose Defendant or its principal, Alfred Hague”), his obvious cut-and-paste from other filings laziness (“Ironically, the vast majority of Plaintiff?s Response appears to have been copied and pasted from other briefs by Mr. Liebowitz, as the Response almost exclusively discusses the theft of photographs, not written text, and most of the law cited is from out of Circuit.”), and a final “that’s not how you evidence” smackdown:
As an initial matter, Defendant argues that Plaintiff has failed to proffer any admissible evidence to dispute the facts established in the Motion. Plaintiff provided a Declaration of Mr. Liebowitz, unverified interrogatory responses, and copies of the Article. (Doc. 35). Defendant argues that of the evidence provided, only a single statement can be supported with personal knowledge by Mr. Liebowitz, that he is ?lead counsel for Plaintiff Daniel Fellner.? (Doc. 35-1). The Court agrees. Plaintiff submitted no authenticated documents, declarations, or admissible evidence of any kind to establish that there are material fact disputes. Under Rule 56(e), if a party fails to properly support an assertion of fact or fails to properly address another party?s assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion. As Plaintiff did not provide any admissible evidence to dispute any facts established by Defendant, the Court determines that there are no material facts in dispute.
Anyway, from there, we get a four factors fair use analysis, and it doesn’t go well for Fellner or Liebowitz. Though it does go well for hobbyist/amateur bloggers who repost full articles. Let’s go factor by factor. First up: commercial use?
Plaintiff asserts, without supporting evidence, that Defendant profited off of the use of the Article. (Doc. 34 at 12). If Defendant had published the Pickleball Article for a profit-making purpose, such use would be presumptively unfair under this factor. See Harper & Row Publishers, 471 U.S. at 562. The contrary presumption is appropriate here, however. Defendant has established that the Article was not posted for any commercial purpose, and indeed did not make any profit. (Doc. 33-1 at 6). Alfred Hague, sole owner of the website, testified that the website is a blog for travel enthusiasts like himself to read. (Id.) The information on the website was fully accessible to the public and did not require a membership fee. (Id.) Moreover, Defendant has never made a profit from the website and does not have a bank account. (Doc. 33-1 at 6). The Court also considers that Defendant identified Plaintiff as the author of the Article and provided a citation to the original work, in order that any visitor to the website could read the Article in full. (Id. at 7). Defendant has since removed the Article, so it will never earn a profit from it. (Id.) The Court finds this factor weighs in favor of finding fair use.
Factor two, on the nature of the work. This is quite interesting, because the judge argues that since much of the article is just a straight up recitation of facts about pickleball, there is little in here that is creative or even subject to copyright protection at all, and thus it favors fair use.
Plaintiff argues that his Article was not a factual work, but a creative work that only he could have written. (Doc. 34). Moreover, Plaintiff argues that because Defendant did not transform the Article or add commentary to it that this factor favors a finding of copyright infringement. While the work included some of Plaintiff?s opinions, the majority of the work was a summation of the history of pickleball and its current popularity on cruise ships. (Doc. 33-1). For instance, one paragraph explained: ?Pickleball is a racket sport that combines elements of tennis, table tennis and badminton. Paddles are made of wood or composite materials; the ball resembles a wiffleball. The sport can be played with two or four players, although doubles is far more common.? (Doc. 33-1 at 3). Another paragraph states: ?Pickleball was invented in the 1960s in Washington state, but only recently has seen a huge growth in popularity; it now routinely attracts more players than tennis in age 55 and older housing developments. The USA Pickleball Association, which is headquartered in Surprise, calls it ?the fastest growing sport in North America.?? (Id.) The Article is much closer to a news story than a motion picture. See Sony Corp., 464 U.S. at 455 n. 40. Moreover, only one of the seven paragraphs published on Defendant?s website contained personal observations from Plaintiff. (Doc. 33-1 at 3). The Court finds that the majority of the Article is factual in nature and not an original piece or a novel. Moreover, while Defendant did not add anything of substance to the Article to substantially transform it, that is not required for a finding of fair use. See Campbell, 510 U.S. at 579 (?[T]ransformative use is not absolutely necessary for a finding of fair use.?). The Court finds this factor weighs in favor of finding fair use.
The third factor, on the amount and substantiality used, you might think would cut against fair use, given that Fellner claimed the full article was reposted. But, as noted above, that wasn’t actually true.
Plaintiff?s allegation that Defendant published the entire Article are clearly false. The original Article, published in AZ Central, contained sixteen separated paragraphs. (Doc. 35-3). The evidence is undisputed that Defendant only published seven paragraphs of the Article on the website. (Doc. 33-1 at 3). In terms of the substantiality of the Article published by Defendant, it did contain the main factual portions of the Article, but did not include other more creative portions, such as Plaintiff?s interviews with the president of the national pickleball association, cruise ship activity directors, or cruise ship passengers. (compare Doc. 35-3 and Doc. 33-1 at 3). Therefore, the Court finds this factor slightly favors a finding of fair use.
And finally, what’s often considered the most important factor: the impact on the market. Here, the court rightly notes that this isn’t harming the market at all. In fact, you can almost hear the judge laughing about this argument:
Plaintiff argues that the market for his work was diminished because of Defendant?s unauthorized publishing of the article. (Doc. 34). Plaintiff has provided no evidence to support this assertion. Plaintiff attempts to label Defendant as a ?competing news organization? with the organizations that paid to publish Plaintiff?s article, AZ Central and later, USA Today. USA Today has a daily readership of 2.6 million and has thousands of employees, whereas Mr. Hague is the sole operator of Defendant?s website. Plaintiff has not provided any admissible evidence to suggest that Defendant is a competing news organization of USA Today, such that the Article?s reproduction by Defendant would reduce its economic viability with other large news organizations. It is undisputed that Defendant never made a profit from the Article. (Doc. 33-1 at 6). Moreover, Plaintiff has not established that the unauthorized reproduction reduced Plaintiff?s economic opportunities in the market. See Fisher, 794 F.2d at 438 (holding that ?infringement occurs when a[n infringing work] supplants the original in markets the original is aimed at, or in which the original is, or has reasonable potential to become, commercially valuable?). The Court finds this factor weighs in favor of finding fair use.
Put that all together and all four factors lean towards fair use… meaning this is fair use.
At its core, ?[f]air use presupposes ?good faith? and ?fair dealing.? Harper & Row Publishers, 471 U.S. at 562. The undisputed facts establish that Defendant did not reproduce the Article to attempt to gain a financial benefit to Plaintiff?s detriment or for any nefarious reason. Defendant simply thought that the topic of pickleball on cruise ships would be interesting to the relatively few readers who visited his website. There is no evidence to suggest that Defendant?s use of the material was anything other than fair, and all four factors weigh in favor of finding fair use. Plaintiff has provided no admissible evidence to the contrary and the Motion for Summary Judgment will be granted.
Thanks, again, to Richard Liebowitz for establishing more good precedent in losing so many of your ridiculous cases.