The law, which was almost never applied to copyright plaintiffs, was that if the defendant made a reasonable offer in negotiations, and the final judgement was less than that, then the plaintiff was responsible for all court costs of the defendant.
This judge is sick of this lawyer using her court as an extension racket, and so has demanded that a $50,000.00 bond be posted for such an eventuality.
In the last couple of years, lawyer Richard Liebowitz has really made a name for himself in copyright trolling circles. He’s quite aggressive, and even got a huge profile written about him at Slate, in which it notes that, unlike many trolls who focus purely on shakedown settlement letters, Liebowitz runs straight to court to leverage the power of an expensive court case to push for insane settlements. “Sue first and negotiate later.” The Hollywood Reporter has done its own profile on Liebowitz as well.
It appears that many of his cases have ended up before federal judge Denise Cote, who clearly sees through his scam. Last year, we noted her scolding him for his practices, including not following court rules. Cote even referred to him as a “copyright troll” — something that offended him so much he requested that it be redacted. That request not only failed, but Cote reiterated:
“His litigation strategy in this district fits squarely within the definition of a copyright troll.”
Liebowitz is back before Judge Cote yet again in one of his many cases, and it’s not going well. As pointed out by the copyright troll fighters at Booth Sweet, Liebowitz is busy setting precedents that are bad for copyright plaintiffs. In this particular case, the issue has to do with Rule 68 of the Federal Rules of Civil Procedure. Under Rule 68, when sued, a defendant may make a settlement offer that includes some specific terms.
In this particular case, Liebowitz, representing photographer Gregory Mango, sued Democracy Now!. Democracy Now! looked up how much Mango was licensing his photos for (a maximum of $220) and made a Rule 68 offer to settle for 5 times that amount. Liebowitz quickly turned the offer down, as he was seeking much more. But here’s the fun part of Rule 68. It’s part (d):
Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
Translated: If Mango/Liebowitz’s final judgment is less favorable than the ~$1,000 Democracy Now! offered under Rule 68, then Mango is on the hook for all of Democracy Now’s legal fees incurred after that offer was made. That is likely to be many thousands of dollars. As Booth Sweet notes, many courts have said that Rule 68 doesn’t apply to copyright cases, but in Cote’s latest ruling she says it does, and tells Liebowitz to post a bond for $50,000.
In other words, even if Mango “wins” the case, but gets less than $1,000, he may be on the hook for tens of thousands of dollars in legal fees.
As we’ve seen with similar trollish operation, Mathew Higbee, it’s unclear whether these trolling operations are fully informing their clients that this kind of litigation could leave the clients on the hook for paying the other side’s legal fees. Both Liebowitz and Higbee promote their services on their respective pages as nearly risk free. Liebowitz’s says: “We work on a contingency fee basis, meaning we don’t get paid unless and until you get paid.” Higbee’s reads: “We are results oriented, so most of the cases we handle even have a money back guarantee or are done on contingency.”
That’s probably why so many photographers are willing to jump on board — as it seems like a “free” way to get extra cash while doing nothing. But not realizing that you may be opening yourself up to quite a bit of liability for filing bogus copyright lawsuits seems like a problem. Actually, it seems like a risk that a good lawyer would explain to his or her clients before signing them up. One wonders whether or not Liebowitz actually warns his clients of such a risk.
I am pretty sure that the lawyers don’t warn their clients about this, but I’m pretty sure that a lot of judges will require them to notify their clients in the future.