- Insanely high statutory damages for even minor copyright violations
- Unaccountability for filing frivolous lawsuits
This story is about the latter.
On Tuesday the most litigious copyright troll Keith Lipscomb gave an interview to the Chicago Lawyer magazine. Even though Lipscomb’s and truth are not good friends, this time he outshined his usual self: I never saw this volume of hogwash delivered in a single scoop. I don’t want to go over each and every misstatement now, maybe another day. To illustrate the subject of today’s post, I only want to direct your attention to one assertion:
“The whole focus of this is proving that the people we are alleging did the infringement actually did,” he said. “We let 35 percent of these people go right off the bat and don’t serve anybody because we’re not sure.”
And if they get it wrong, [Lipscomb] said, there are safeguards in the law: The copyright act allows wrongly named defendants to receive their attorney fees.
Well… While Mr. Lipscomb is theoretically correct, I would love to see a single Malibu Media case, in which an innocent was targeted, and, after incurring sizeable legal expenses, was compensated in any form¹. To the best of my knowledge, Mr. Lipscomb didn’t pay a dime to any prevailing defendant, while wrestling millions from alleged pirates, guilty or not.
The cases with “wrongly named defendants” either ended up in a walkaway settlement (INSD 12-cv-01117, MDD 13-cv-03438, VAED 14-cv-01544 — to name a few), or the courts declined to award prevailing-defendant fees.
In Malibu Media v. Roberto Roldan (FLMD 13-cv-03007), the troll knowingly targeted a student who didn’t live at the address where the alleged infringement took place. After it became obvious that Roberto was innocent beyond any doubt, Lipscomb managed to substitute the defendant, naming his father instead and leaving a wrongly accused young man with huge legal bills and damaged reputation.
In Malibu Media v. Shekoski (MIED 13-cv-12217), after it became clear that absolutely no proof of defendant’s guilt ever existed (even accessing protected areas of defendant’s hard drive — in a clear violation of judge’s order — didn’t help), the troll cut and run to avoid compensating the wronged party.
Yet the most egregious example was Malibu Media v. Pelizzo (FLSD 12-cv-22768). Not only was this case frivolous and unreasonable from the very beginning, but even after the dismissal Lipscomb threatened to ruin the innocent man financially — after the defendant’s attorney Francisco Ferreiro asked for a modest fee reimbursement:
Respectfully, you should counsel [your client] that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.
This outrageous conduct, which in an ideal world should have caused an immediate disbarment, resulted in some fees: Magistrate Andrea Simonton recommended to slap Lipscomb on the wrist by sanctioning him for $6,815.50 Pursuant to 28 U.S.C. § 1927. Yet no prevailing-fees (17 U.S.C. § 505) were awarded because the judge found that
Plaintiff ’s motivation in filing and maintaining this suit was proper and the lawsuit was not frivolous or objectively unreasonable [up to a point].
So now Pelizzo and his attorney have upped the game. On 10/2/2015 Francisco Ferreiro filed a Petition for A Writ of Certiorari with the Supreme Court of the United States. This is the first SCOTUS petition in a Bittorent infringement case², and the heart of the argument is the fee shifting provision:
In Fogerty v. Fantasy, 510 U.S. 517 (1994), this Court agreed that judges could rely on several non-exhaustive factors to guide their equitable discretion in awarding prevailing party fees under the Copyright Act, 17 U.S.C. §505, including “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”
The appellant, arguing the landmark Fogerty ruling was interpreted differently by different US circuits (and incorrectly by the Eleventh Circuit), wants the highest court to bring clarity.
I’m deliberately not trying to go into the detail of the legal argument presented in this petition. It is highly technical, and analyzing it is out of my league. I hope that law geeks will stop by and explain weaknesses and strengths of the petition.
I don’t entertain an illusion that this writ has a high probability of certification, but I do commend Pelizzo and Ferreiro for trying to do the right thing — to make copyright litigation fairer, thus tightening the loophole of unaccountability that copyright trolls have been abusing so impudently, ruining thousands of lives in the process.
Alas, on 12/15/2015 the U.S. Supreme Court denied certiorari review: it was not totally unexpected. Kudos to Francisco Ferreiro for trying.
— Francisco Ferreiro (@FJFerreiro) October 5, 2015
Dineen Wasylik, an IP attorney from Tampa, wrote a good overview of this event.
It’s not over yet! Today Pelizzo filed an emergency motion to vacate order denying petition for cenrtiorari.
The rationale for this rather unusual step is that The US Supreme Court just granted certiorari in Kirtsaeng v. John Wiley & Sons, Inc. to answer nearly exactly the same questions as the denied Pelizzo petition asked:
Petitioner, Leo Pelizzo, respectfully moves this Court for an order vacating its denial of certiorari in Pelizzo v. Malibu Media, LLC, No. 15-429, to the Eleventh Circuit Court of Appeals.’ As set forth more fully below, this relief is warranted in light of the Court’s decision to grant certiorari in Kirtsaeng v. John Wiley & Sons, Inc., No. 15-375, to determine “What constitutes the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act.”
¹ The only time a Bittorent defendant was awarded prevailing-party fees was in the Elf-Man v. Lamberson (WAED 13-cv-00395). While that case was driven by the same German champertors as those who drive Malibu Media’s lawsuits, Mr. Lipscomb didn’t handle this case.
(Update: § 505 fees were also awarded in 3 Prenda/AF Holdings CAND cases. Same 9th Circuit as in Elf-Man. However, AF Holdings was proven to be a fake plaintiff, so it is unthinkable that any judge would find its cases reasonable by any standard.)
² The closest was the petition (was not granted) in Sony v. Tenenbaum, which stemmed from a non-commercial online copyright infringement case. That petition raised very different (constitutional) questions.