Beware The CopyLEFT Trolls

from the technicalities-exist dept

For years we’ve covered the problems of copyright trolls — abusive schemes in which aggressive lawyers and schemers leverage copyright to shake down hundreds or thousands of people over what may be accidental or incidental infringement. In some cases, copyright trolls have gone even further, deliberately seeding their own works in order to find people to demand money from.

But, over the past few years there’s been something of a rise in a different kind of troll — the copyLEFT troll. Law professor Chip Stewart started calling out the issue of copyleft trolls a few months ago and has published an academic paper about the issue as well. At the heart of it, copyleft trolls rely on widespread misunderstandings of Creative Commons in order to shake people down in the same way that copyright trolls do, though in some ways it’s even more nefarious.

I was reminded of Stewart’s warnings about this — and my own interest in writing something about it — recently when there was a semi-viral story involving the popular Twitterer @foone having their Twitter account suspended over what appeared to be a similar kind of copyleft claim. Foone’s explanatory thread (after their account was reinstated), noted that they had taken a CC-by-Attribution photo, but had not appended the attribution, leading to a DMCA claim. In the end that didn’t seem as bad as some of the trolling situations Stewart describes.

At the heart of all this, though, is the fundamental nature of how Creative Commons works — and how some people still are confused about it. Creative Commons was always a sort of clever hack of the copyright system, creating new licenses that were a lot more open, but which still relied on copyright as the backbone. The variety of licenses within the Creative Commons space, however, have at times lead to confusion — especially regarding its non-commercial licenses. Some people have assumed (incorrectly) that Creative Commons licenses are all “non-commercial” and others have disputed what “non-commercial” actually means. To Creative Commons’ eternal credit, the organization has spent a lot of time over the last few years trying to better educate the public, lawmakers, courts, and more about the nature of these licenses and how they work.

However, in the end, they are still licenses, and those licenses are still backed by copyright — which means that if you don’t abide by the specifics of the Creative Commons license, you could very much be liable for copyright infringement. Enter the copyleft trolls. They search for those using CC-licensed works, but not following the exact terms of the license, and then resort to the typical copyright troll shakedown game. From Stewart:

The scam works a little like this:

A photographer posts photographs on Flickr or Wikipedia using the ?Creative Commons? tag, a signal to internet users that these can typically be reused online without permission as long as they include proper attribution.

The photographer searches the web for uses of their photos, or hires a company such as Copypants or Pixsy to do the search for them, and they ferret out any uses that omit or otherwise mess up the attribution. This is an easy mistake for a less savvy internet user, particularly when the attribution requires full hyperlinks to the original and a hyperlink to the license itself, burdening any ability to use it as a thumbnail. Hits are investigated for potential noncompliance, and demand letters are sent to each user that doesn?t follow the license requirements perfectly.

Conveniently, the photographer claims an older version of the Creative Commons license (2.0, for example), which terminates automatically upon any error by the licensee. The most recent version of the CC license, updated in 2013, allows correction and reinstatement of the license through proper attribution within 30 days of the discovery of the error, but older ones do not. With the CC license terminated and easy reinstatement off the table, users of the photographs are put in a difficult spot ? pay the licensing demand of $750 or $1,500 or $3,500, or else.

If the license demand isn?t paid, a copyright infringement lawsuit is quickly filed in federal court. And these lawsuits are filed in bulk. One German photographer, Marco Verch, has filed 41 such lawsuits in a variety of U.S. District Courts in 2019 and 2020 alone. Verch?s lawsuits usually stem from stock photography he savvily generates to meet market demand; he posted several such as ?face coverings, test tubes and people wearing masks? on his website at the start of the COVID19 outbreak in 2020. Using an older version of the Creative Commons license that ?includes sophisticated attribution requirements that victims claim have led them into a trap,? he sues after the license automatically terminates. A photographer based in Indiana, Larry Philpot, has been labeled a ?copyright troll? by a court after pursuing more than 150 infringement lawsuits in the past decade. In 2020, a federal district judge expressed dismay when Philpot testified that he had made ?tens of thousands of dollars? licensing a photograph he had taken of Willie Nelson, when the reality was that he was ?describing settlements extracted after (he) confronted the infringer for failing to provide attribution per the ?Creative Commons? license,? and that Philpot ?is more in the business of litigation (or threatening litigation) than selling his product or licensing his photograph to third parties.?

There are many reasons why this is scammy, but the worst of it is that if people are doing searches deliberately for Creative Commons’ licensed works, they’re actually trying to be good internet citizens and abide by copyright laws, rather than doing what lots of other people do — and just copying a work willy nilly from an image search. In short, copyleft trolls are using technicalities to prey on people who are actually trying to be good but who might not be sophisticated enough in copyright law to understand the nuances, and to me that’s truly nefarious.

As Stewart notes in his paper, this is clearly against the very spirit of Creative Commons:

The point of copyleft was never to replace copyright, nor was it to remove the possibility of programmers and artists from preventing infringement or from profiting from their work. But the copyleft movement also certainly did not intend to encourage or facilitate high-volume litigation by copyright owners who found harmless or innocent infringing uses scattered around the Web. As Creative Commons itself noted after a German court found a photograph under a CC 3.0 Attribution-ShareAlike license to be enforceable, ordering the political party that reposted the photo online without attribution to take it down, one of the goals of Creative Commons is to limit litigation of this sort.

Creative Commons has updated its licenses to include things like a period of time in which such technicalities can be fixed — which is a useful addition. However, some courts are also increasingly not looking kindly on these copyleft trolls either. As Stewart highlights, for those who can afford to fight these lawsuits (which is rare in copyright cases), at least some courts are saying the use is non-infringing as fair use, though it seems very context specific:

Nevertheless, some courts have been sympathetic to the transformative use argument in cases brought by Philpot for posting photos in a way he alleged violated the terms of Creative Commons licenses. In 2018, the Eastern District of Virginia found fair use for publication of Philpot?s CC 3.0 licensed photographs of Kenny Chesney and Kid Rock in Philpot v. Media Resource Center. The court held that use of these photos on the website of a non-profit company engaging in political advocacy for conservative and Judeo-Christian causes was ?transformative? because, rather than being about their musical performances, the secondary use was for ?news reporting and commentary on issues of public concern.? Namely, the transformative purpose was identified as ?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.? The Chesney photo was used in an online article entitled ?8 AList Celebrities That Are Pro-Life,? and the Kid Rock photo in an article ?Kid Rock Announces 2018 U.S. Senate Bid.?

The result was not appealed, and some critics panned the court?s fair use finding. But other courts have extended similar consideration to the transformative use argument by people Philpot sued. These typically have come in response to arguments on motions to dismiss or motions for summary judgment, in which judges are considering the plausibility of arguments the parties made early in the case. Courts have been unwilling to dismiss fair use arguments by defendants due to a lack of evidence on the record at the early stages, thus not handing Philpot an easy win, though also not giving defendants an easy out. One case in particular revealed a court seemingly at odds with itself while ruling on dueling motions for summary judgment coming from both parties.

In Philpot v. WOS, Inc., the Western District of Texas was considering the fair use argument raised by a website publishing news and commentary about country music called ?Wide Open Country? that used two of Philpot?s photographs, one of Jakob Nelson and another of Kenny Chesney, without proper attribution as required by the Creative Commons license. The website moved for summary judgment, arguing that the use was transformative because its purpose was for ?news commentary? about, in the Chesney photo, a story about a man beaten to death after a Chesney concert, and in the Nelson photo, ?commentary unrelated to the image?s subject,? as opposed to the original purpose of depicting these artists performing in concert. The court said a reasonable jury could find that these were actually both ?reproduced exactly for the same purpose? and thus were ?not transformative.? But the court was no more receptive to Philpot?s own motion for summary judgment on the fair use defense. The court said a reasonable jury may also ?conclude that the parties used the works with different purposes? after all, because the website ?fully copied Philpot?s photos to draw attention to articles that had nothing to do with the photos themselves.? While the court noted that the use may be, at most, ?minimally transformative,? it said a reasonable jury could ultimately give that significant weight in the fair use analysis.

Applying Kelly v. Arriba Soft Corp., in which the U.S. Court of Appeals for the Ninth Circuit found transformative use of an image for use in a search engine, the Northern District of California found a similar opening for transformative fair use of one of Philpot?s photos. Alternet, a news website, posted Philpot?s image of Willie Nelson on Facebook with the 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.? Alternet argued that adding the quote was an act of political commentary and altered the purpose of Philpot?s original photo, which the court said was at least ?possible,? though not enough to support Alternet?s motion to dismiss in the face of Philpot?s argument that the photo was used ?merely for the purpose of identifying who the quote came from.?

Either way, we’re seeing the same underlying issue here: copyright allows for sketchy efforts to shake people down for money — even when they use CC-licensed images, if they get something wrong on a technicality. That’s not a knock on Creative Commons, which remains a really useful tool, but on the underlying copyright law that required Creative Commons to exist in the first place… and has enabled greedy people to abuse the law in the manner described above.

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Comments on “Beware The CopyLEFT Trolls”

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20 Comments
Samuel Abram (profile) says:

Re: definition of “copyleft”

Your definition of “copyleft” is wrong. It basically means “Creative Commons attribution-sharealike” for non-software works of authorship and the Limited General Public Licence for Software. Creative Commons Attribution-Noncommercial licenses are not copyleft as they are incompatible with BY-SA licenses and the GPL, and cannot be used by them.

Anonymous Coward says:

Re: Re: Re: definition of “copyleft”

Also, LGPL is short for Lesser General Public License. I think it was originally "Library" GPL but got renamed when the authors of the licenses decided to discourage its use even for library code, absent reasons. I’ve never seen "Limited" before.

Let this not distract from the point that only CC-SA licenses of the CC family are copyleft. The trolls at hand should be recognized as garden-variety copyright trolls.

This comment has been deemed insightful by the community.
Thad (profile) says:

Re: Re: definition of “copyleft”

There seems to be some disagreement between the free software community and the CC community on whether a nonfree license can still be considered copyleft. The FSF, which popularized the term, defines copyleft in a way that precludes its use for nonfree software. Any license that doesn’t satisfy the four freedoms cannot, by definition, be a copyleft license. And noncommercial clauses do not satisfy the four freedoms.

However, the CC’s view on copyleft diverges. When you say "Creative Commons Attribution-Noncommercial licenses are not copyleft as they are incompatible with BY-SA licenses," it’s clear you didn’t bother to check before making that assertion, because CC BY-NC-SA is listed right there on the Licenses page.

Whether or not BY-NC-SA still qualifies as copyleft is, I suppose, subject to debate. But regardless of whether you consider BY-NC-SA a copyleft license or not, BY and/or NC without SA are certainly not copyleft terms, which is the point I was making.

This comment has been deemed insightful by the community.
Kat (profile) says:

CC resources

I will note that CC is aware of the issue though our power to address it is limited!

We published some Enforcement Principles recently that we hope will both be adopted by media-sharing platforms and used as an interpretation guide: https://creativecommons.org/license-enforcement/enforcement-principles/

And in general are working on more resources for both creators and reusers to increase understanding and help solve disputes: https://creativecommons.org/license-enforcement/

Anon E. Mous (profile) says:

Lets see this reminds me of Liebowitz and good old Steven Gibson of Righthaven fame and there are other out there engages in the same schtick. The system is so corrupt and abused it isn’t even funny and the other problem is the courts could slap the trolls down hard but refuse on many occasions to do so especially when it comes to cut and run litigation when the trolls think they are in trouble.

How long did Gibson and Righthaven abuse the landscape and many many times courts didn’t admonish them, Liebowitz is the same, he filed how many lawsuits and go busted how many times but yet rarely got slapped on the hand, until he pissed off a few judges and then the cards started to fall, but that was on in so many cases, look how many he filed

You only need to look further at the Prenda Law and Malibu Media litigation to see how trolls can flout the law and keep going and going and going until the house of cards start to fall.

The problem is the courts hold the trolls to a different standard then the defendant it seems and get way more leniency even when they flout court orders and timelines etc. The fact that courts most of the time allow trolls to cut and run with next to no financial penalties is why the trolls keep going , the rewards are high and the risk is low, they know they have the system gamed to their end

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Well that’s certainly impressive for all the wrong reasons, I wouldn’t have thought that someone would see regular copyright extortionists and respond with ‘challenge accepted’ but for as sleazy as regular copyright extortionists are shaking down people going out of their way to try to comply with the law really cranks that sleaze to 11.

So congrats new batch of copyright extortionists, you somehow found a way to be even more vile than the previous batch of parasites, truly an accomplishment worthy of praise.

Anonymous Coward says:

That's not copyleft. Copyleft trolling is a different matter.

While the basic arguments of Daxton Stewart’s paper are fine, the author demonstrates fundamental misunderstandings of copyleft and of Creative Commons licenses.

Let’s say Jay Doe wants to use a work licensed under a free (as in freedom, not as in price) license. Jay is free

  1. to use the work (including to perform or to interpret it)
  2. to study the work (for example, to reverse engineer it)
  3. to share the unmodified work (with or without charging money)
  4. to modify the work and to share the derivative work (with or without charging money)

for any purpose (whether public or private). If the work is a piece of software, then Jay must be able to view the source code and to run modified versions in order for the license to be considered free. A license which prohibits derivative works is not free. Example: CC BY-ND (Attribution-NoDerivatives). The same goes for a license which prohibits commercial uses. Example: CC BY-NC (Attribution-NonCommercial).
A copyleft license is a free license which guarantees that anyone who uses the work to make a new work has to guarantee those freedoms to users of the new work. If Jay wishes to use a work under a copyleft license to make a new work, then (unless Jay chooses not to distribute the new work) Jay has to release the new work under the same copyleft license or a compatible one.
If the license of the original work is a free license but isn’t a copyleft license, then Jay doesn’t have to release the new work under a free license. If Jay uses a picture licensed under the Creative Commons Attribution 4.0 International license in a derivative work (let’s say, an upside down version of the picture) then Jay can distribute the new work as long as the new work comes with proper attribution.

“Copyleft” was originally used as a term for open-source software, in which the creator of the software permits others to use the code to remix and remake the program into new things, on the condition that the new creation remains open-source and free to remix as well. [Emphasis added.]

On page 2 of the paper, the author writes this in citation 10 but seems to have missed the last part. (Please excuse me for using "free" and "open source" interchangeably. There are subtle differences, but I can’t be bothered to explain the history of them.)

Conveniently, the photographer claims an older version of the Creative Commons license (2.0, for example), which terminates automatically upon any error by the licensee.

There is no "the Creative Commons" license. The Creative Commons licenses have a wide range of permissions. Among them, only CC BY-SA (Attribution-ShareAlike), CC BY (Attribution), and CC0 (“No Rights Reserved”) are free licenses. Among those, only CC BY-SA is a copyleft license, unless the work in question is software, in which case none of the CC licenses would be copyleft or even free (because none of them requires disclosure of source code to users of the work).

An even more extreme example of retaliation occurred in a case involving photographer Nicholas Youngson, who posted images on his website with a CC-BY-SA license saying they were “free to use” but that licenses would be “automatically revoked if attribution requirements are not maintained.

The author looks at cases involving CC BY and CC BY-SA. In all of those cases the problem is the BY (attribution) part, not the SA (sharealike) part. A better name for what the author is warning about would be "attribution troll". Copyleft has nothing to do with it. In addition, attribution trolling applies to ANY license which requires attribution, including any CC BY-NC (Attribution-NonCommercial) license and the license implied by the common "all rights reserved" notice. The only reason free licenses are the focus of this paper is because free licenses such as CC BY 3.0 (which doesn’t have a grace period for correcting infringement) can give a false sense of security to users of the work who forgot to provide attribution. While I’m glad the author chose to communicate about that problem, the root of the problem lies with the copyright system in general, which applies "all rights reserved" copyright automatically and offers no grace period by default. Mistaking "free license" for "copyleft license" unfairly damages the reputation of copyleft. While there is such thing as copyleft trolling, this isn’t it.
An article on actual copyleft trolling:
https://sfconservancy.org/blog/2020/jan/06/copyleft-equality/

That Anonymous Coward (profile) says:

Oh fsck me…

Liebowitz gets to attempt to reform his image by representing these poor starving artists against the evil evil internet stealing billions from them.

He couldn’t just move onto ADA trolling lawsuits, he had to reinvent the scam meanwhile twisting his mustache that no one is smarter than him and they’ll never catch his this time.

Something something better mousetrap… but this is a better fscking scam that once again requires the boulder pushed up the mountain to prove it is a scam & extortion with the blessing of the courts.

Moorecha says:

Turns out, your favorite lawyer Richard Liebowitz is the lawyer for many of these plaintiffs.

In the the US, Verch works with a controversial lawyer, Richard Liebowitz, dubbed a “copyright troll” by a US judge for filing more than 1,120 copyright suit.

See this article: https://www.computerweekly.com/news/252488167/Automated-image-recognition-How-using-free-photos-on-the-internet-can-lead-to-lawsuits-and-fines

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