2nd Circuit Upholds Non-Monetary Sanctions Against Copyright Troll Richard Liebowitz

from the lying-liebowitz dept

Here's a quick update on infamous copyright troll Richard Liebowitz. As you may recall, after tons of stories about Liebowitz's horrendously bad activities in and out of court, federal district court Judge Jesse Furman finally threw the book at Liebowitz in an incredible ruling that literally catalogued dozens upon dozens of examples of Liebowitz lying to his and other courts. Furman issued both monetary and non-monetary sanctions. Among the non-monetary sanctions was a requirement that Liebowitz file a copy of this particular benchslap in basically every court where he is representing a client.

Liebowitz whined about how unfair it all was, and appealed the ruling. On Friday, the 2nd Circuit Court of appeals upheld the non-monetary sanctions, saying it will release its opinion on the monetary sanctions shortly. The ruling is pretty short (unlike Furman's explanation of all of Liebowitz's wrongdoing), but the general conclusion is: all the evidence says that Furman was exactly right, so his sanctions order was fine.

In this summary order, we focus on the court’s non8 monetary sanctions. “We review a district court’s imposition of sanctions for abuse of discretion”; however, because the district court is the “‘accuser, fact finder and sentencing judge’ all in one” when imposing sanctions, “our review is ‘more exacting than under the ordinary abuse-of-discretion standard.’” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir. 2009) (citation omitted). A district court abuses its discretion if its sanctions are based on “an erroneous view of the law or on a clearly erroneous assessment of the evidence,” and where its sanctions “cannot be located within the range of permissible decisions.” Id. (citations omitted).

Appellants’ arguments that the district court abused its discretion in imposing the non-monetary sanctions are unavailing. First, the court’s findings that Liebowitz lied and acted in bad faith when he represented to the court that the mediator gave Usherson permission to attend the mediation by phone and when he alleged in the complaint that the photograph was registered were not clearly erroneous. The evidence in the record––for example, the mediator’s testimony and the email exchange between the mediator and Bandshell’s counsel the night before the mediation––supports both conclusions. United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (“When . . . credibility determinations are at issue, we give particularly strong deference to a district court finding.”). Liebowitz’s conduct was also not “colorable” as required to contest the court’s bad-faith finding. See Wolters Kluwer Fin. Servs., Inc., 564 F.3d at 114. There exists no “legal or factual basis” to excuse Liebowitz of his duty to reasonably investigate the claims in his complaint. Id.

Second, Appellants’ arguments that the non-monetary sanctions are overbroad because of their nationwide scope fail to persuade. Appellants rely on our decision in Enmon v. Prospect Cap. Corp., 675 F.3d 138 (2d Cir. 2012), where the law firm made several misrepresentations and the district court only required the firm to file a copy of its sanctions order with future pro hac vice applications in the Southern District of New York. See id. at 148. However, unlike the law firm’s misconduct in Enmon, Liebowitz’s misconduct in this case––including violating multiple court orders, repeatedly lying to the court, and filing a complaint with a false allegation––justify the nationwide scope of the court’s sanctions. Moreover, Liebowitz’s pattern of misconduct before many judges of the Southern District of New York and across the country, described at length in the district court’s opinion, squarely defeats Appellants’ suggestions to the contrary. See, e.g., In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (affirming “restrictions placed upon [attorney’s] bringing of new actions in all federal district courts” (emphasis added)). See generally Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 3483661 (S.D.N.Y. June 26, 2020).

Finally, the district court did not abuse its discretion by ordering Liebowitz and his firm to include a copy of the deposit files with each copyright infringement complaint they file for a year. Requiring Appellants to include a copy of the deposit files does not impermissibly shift the burden of proof. Although the party challenging the validity of a copyright registration bears the burden of proof, that burden attaches only for presumptively valid copyrights; plaintiffs bear the burden of establishing that presumption. See Urbont v. Sony Music Ent., 831 F.3d 80, 88–89 (2d Cir. 2016); see also Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985). Courts cannot rely on the face of the complaint to establish this presumption in the cases Appellants bring, given that Liebowitz’s associate “admitted that it is the regular practice of [their firm] to file copyright infringement cases without verifying that the works in question are properly registered.” Special App. 19–20; see also Joint App. 483.

There's also a fun footnote dismissing one of Liebowitz's classically silly arguments:

Appellants’ argument that the sanction would impose a substantial burden because deposit files are expensive to obtain is unpersuasive. As the district court noted, Liebowitz often settles cases “‘in the low thousands or tens of thousands of dollars’ . . . a far cry from the $200 to $1,200 cost of obtaining a deposit copy.”

Liebowitz made some other arguments as well, but the Court notes: "We have considered Appellants’ remaining arguments and find them to be without merit." Nice try, Richard.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 2nd circuit, copyright, copyright troll, jesse furman, richard liebowitz, sanctions


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    That One Guy (profile), 28 Jun 2021 @ 1:56pm

    Couldn't have happend to a more deserving man

    When you are such a known liar that a circuit court agrees with a lower court that it's in the public interest for your history of gross dishonesty to be known to any prospective clients and judges that's probably not a good sign, and should really serve as a good indicator that the person in question is long overdue for being disbarred and prohibited from ever serving as a lawyer again.

    reply to this | link to this | view in chronology ]

    • identicon
      MightyMetricBatman, 28 Jun 2021 @ 4:44pm

      Re: Couldn't have happend to a more deserving man

      I believe there have been several cases reported on where Liebowitz failed to follow said sanction, right?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 28 Jun 2021 @ 5:59pm

        Re: Re: Couldn't have happend to a more deserving man

        Hmm, can't say either way offhand but it would certainly be in character for him to treat sanction as more 'suggestions' than legally binding rulings so it wouldn't surprise me if he had done so.

        reply to this | link to this | view in chronology ]

        • identicon
          Pixelation, 28 Jun 2021 @ 7:14pm

          Re: Re: Re: Couldn't have happend to a more deserving man

          That raises the question, will he keep digging?

          reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 30 Jun 2021 @ 5:31pm

          Re: Re: Re: Couldn't have happend to a more deserving man

          in character for him to treat sanction as more 'suggestions' than legally binding rulings

          Well, he explained the failure to file in some cases as inadvertence or mistake, rather than a determination that the order to file in all his firms' cases did not apply. He was unsure of the status in some, he said, claiming that they might have been closed and therefore not subject to the order.

          He also claimed that his computers were not able to accurately identify all the cases on which the attys in the firm were working.

          reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 29 Jun 2021 @ 3:18am

      Re: Couldn't have happend to a more deserving man

      is long overdue for being disbarred and prohibited from ever
      serving as a lawyer again.

      Which is the real problem here. Why the hell would they let run this clown rampant for so long? They only have themselves to blame.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 29 Jun 2021 @ 4:23am

      Re: Couldn't have happend to a more deserving man

      True enough. It takes a lot to provoke a judge into losing his shit to the point where he lays down the law like this; "Among the non-monetary sanctions was a requirement that Liebowitz file a copy of this particular benchslap in basically every court where he is representing a client. "

      It's sheer legal poetry. I'm not surprised Liebowitz is getting whiny - he's literally been told he has to start every future court appearance with the statement "Oh, before we begin, may the court note that I'm a proven compulsive liar and fraud"...

      reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 28 Jun 2021 @ 2:50pm

    More of this, please!

    Like TOG said, it shouldn't take anywhere near this amount of egregious behavior to get sanctions. The sanctions should be much harsher, they should come much quicker, and with considerably less provocation. This guy should have been disbarred long ago.

    Ditto (x 10 + prison time) for prosecutorial misconduct.

    reply to this | link to this | view in chronology ]

  • icon
    K`Tetch (profile), 28 Jun 2021 @ 3:55pm

    It's a good job you can't copyright "being benchslapped for being shitty at attempting to copyright troll" else, Hansmeier and Steele would be also hounding Liebowitz for money.

    And lets face it, we'd ALL love to read the legal "handbag fight" between those two groups of incompetents if that were to happen.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 28 Jun 2021 @ 7:00pm

      Re:

      Leibowitz, Hansmeier & Steele sounds like the worst lawfirm EVAR!!!

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 29 Jun 2021 @ 4:26am

        Re: Re:

        Well, we all know at least one person who'd show up around here and explain that without the stalwart efforts of that hypothetical lawfirm, civilization would no doubt perish as pirates magically vanish the pillars of society by making copies of them...

        reply to this | link to this | view in chronology ]

      • identicon
        Bobvious, 29 Jun 2021 @ 5:15am

        Re: Re:

        Leibowitz, Enron, Righthaven, Hansmeier & Steele

        Now THAT would be a jackpot.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jun 2021 @ 6:55pm

    While it was written in a slightly different context, By The Power of Three, We Banish Thee! applies here too.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 29 Jun 2021 @ 6:47am

    Righthaven: We're the best copyright trolls ever.

    Prenda: You're not even in the big leagues yet.

    Liebowitz: Hold my beer.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Sponsored Promotion
Public Money, Public Code - Sign The Open Letter at publiccode.eu
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.