Authored by:
Justin R. Muehlmeyer
Patent Attorney
All Posts by Justin
The following is a scenario that occurs all too often. A small business owner is just getting started with a new business. Like many small business owners, keeping costs down is important. At the same time, they know that a website presence is important, so they try to save money wherever possible. The would-be business owner begins to put a website together themselves. In the process, they search for “free city skyline images”, and come across a photo that would look great as a background for the website. There are no watermarks, and no price tags like there would be on a stock photo. They download the photo and post it as a background on the new company website. As it turns out, that photo was actually a trap.
Almost immediately upon posting the photo on her website, the business owner receives a letter from an attorney representing the owner of the photograph, demanding payment for the infringement to the tune of many thousands of dollars. Although the business owner immediately removes the offending photo, the attorney persists, and threatens to sue for copyright infringement. The unlucky business owner has crossed paths with a copyright troll who leverages infringements as an entrepreneurial enterprise, demanding payment from inadvertent infringers who are unfortunate enough to stumble into their online bait. That is how copyright trolls make a living.
In dealing with copyright trolls regularly, here are five things to be aware of that could significantly reduce the ultimate financial bite or get you out of it entirely:
Make sure the troll got the right person and the right infringement.
Copyright trolls target a lot of people, and it is common that they demand payment from the wrong person or allege infringement of the wrong work. If you never committed the alleged act, hold the troll to proving it.
Determine whether the work alleged to have been infringed is actually owned by the troll.
Don’t get scammed by someone that does not even own the work. Hold them to demonstrating they are the owner. If it is registered to them, they are presumed the owner by law. They need a registration covering the specific work to sue you.
Don’t let a troll’s threats about damages scare you into an unreasonable settlement.
Copyright infringement is a strict liability offense – you may be an infringer even if it was accidental or deliberate. So if you did commit the infringement, the question is how much in damages the copyright owner would be entitled to, and more practically, how much they would be willing to settle for without having to take the next step against you. This is a business for the troll, and they are trying to get the most out of you for the least expense. The troll has two options at law for damages: seeking actual damages or statutory damages. The troll will likely demand statutory damages because the actual damages are probably so low as to not be worth going to court or even negotiating a settlement without court. A court could award anywhere from $750 to $30,000 in statutory damages, or even up to $150,000 if the court considers it willful. The troll may try to scare you with threats about the high end of that range, but don’t let that scare you into an unreasonable settlement. Your risk depends on the facts of your case, and probably the troll is ignoring the facts. Courts are not required to award the high damages a troll might allege. Furthermore, under certain conditions, the infringer may be what is called an “innocent infringer”, allowing the court to minimize statutory damage awards to as little as $200.
Don’t let a troll’s threats about attorneys’ fees scare you into an unreasonable settlement.
Keep in mind that copyright law permits a court to grant the prevailing party their attorneys’ fees. If a court finds that you infringed and awards any amount of damages, courts will also tend to award the attorneys’ fees, which in many cases far exceeds the damage awards. But again, do not let that scare you into an unreasonable settlement. Such an award requires a decision by a court and the vast majority of copyright troll cases do not go that far. Even if the matter did go to court to a decision, some courts have declined to award attorneys’ fees to copyright trolls, particularly where a troll has a history of nuisance cases.
Settle quick and fast.
Copyright trolls don’t want drawn-out legal actions, especially in cases where a court would not look favorably on their conduct or where the damages are low. But in general, the longer you fight, the higher the amount the troll will demand to settle to justify their legal expense. It is unlikely that an infringer will walk away scot-free, but the troll’s initial demand was probably unreasonable. The goal is to settle for a reasonable amount.
The risk of inadvertently crossing paths with an internet troll is something that every business owner must be aware of and watch out for. Seemingly innocent acts such as downloading a photo from the internet and using it on a website or in online advertising could land business owners in legal hot water. It’s a form of entrapment.
Peacock Law firm attorneys are respected for excellence in intellectual property-related legal services. We are ready to serve business owners in dealing with their legal issues – including minimizing the settlements demanded by copyright trolls.