Analysis

During Pandemic, Prolific Copyright Lawyer Keeps Suing

By Bill Donahue
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Law360 (March 27, 2020, 7:01 PM EDT) -- Amid a health crisis that has strained courts and crippled the economy, a litigator who has been dubbed a "copyright troll" isn't slowing down, filing more than a third of the copyright lawsuits in the entire country during the coronavirus pandemic.

As of Thursday, the federal court system has seen 130 new copyright infringement lawsuits since March 11, the day the World Health Organization declared the outbreak of COVID-19 a global pandemic.

51 of those lawsuits — or 39 percent of them — were filed by the law firm of Richard Liebowitz, a New York attorney who has filed more than 2,000 such cases over the past four years, drawing a long trail of sanctions and rebukes from the federal judges hearing them.

In New York, the epicenter of the coronavirus outbreak, the numbers are even more glaring. Of 42 copyright lawsuits filed in the four New York federal districts during the pandemic, 31 of them were lodged by Liebowitz.

From Sunday, when more severe restrictions went into effect in New York, to Thursday, Liebowitz filed nine copyright lawsuits in Manhattan and Brooklyn federal courts. Over that same stretch, only one other intellectual property lawsuit — patent, copyright or trademark — was filed in the entire state.

As is typical, the lawsuits were filed on behalf of photographers against those who have allegedly used images without permission on the internet. Some went against little-known companies; others against media giants like BuzzFeed. In one, a Liebowitz client sued LeBron James for posting a photo of himself to Facebook.

For Liebowitz, the flood of cases is merely a proportional response to a huge amount of online infringement that has deeply harmed photographers — and one that isn't stopping for COVID-19.

"We will continue to carry out our important mission to help photographers in a time of need," Liebowitz said in a statement.

The continued pace of new cases from Liebowitz have come as courts around the country struggle to operate amid the lockdown. Trials and hearings have been delayed, courthouse staffs have been reduced, and essential functions like criminal proceedings have been prioritized.

In that context, some federal judges overseeing other attorneys have expressed frustration at commercial litigants using those limited resources.

In one case, a Florida federal judge harshly criticized two teams of attorneys for squabbling over a deposition while "the entire world is in the midst of a pandemic." In another case, a federal judge chastised a company for seeking a restraining order over counterfeit drawings of unicorns. Such requests are made every day in federal court, but the judge called it "insensitive to others in the current environment."

"A hearing – even a telephonic one – would take time and consume valuable court resources," the judge wrote last week. "The world is facing a real emergency. Plaintiff is not."

In New York, even before COVID-19 struck their courthouses, a number of federal judges already appeared to be at wits' end with Liebowitz's caseload and tactics.

One criticized his "lawyer business model" and "slap dash approach to pursuing the enormous volume of cases." Another called him a "copyright troll" — meaning he brings cases en masse to quickly win small settlements rather than actually protect copyrights.

In one extraordinary affair, a judge in the Southern District held him in contempt and then threatened to have him jailed over months of lies about the death of his grandfather.

Among those who mass-file copyright lawsuits, Liebowitz is not alone in continuing to sue amid the pandemic. Strike 3 Holdings, a pornography studio that files thousands of lawsuits a year against internet downloaders and has received similar rebukes from judges, has filed 11 lawsuits since March 11.

And unlike some of the others hit with the "troll" label, Liebowitz's firm has actually litigated and won cases. Just this month, he won a ruling that local television station owned by Cox Media Group violated copyright law by using a bystander's photo of a 2017 terrorist attack.

The way Liebowitz sees it, the outbreak of COVID-19 is no time to scale back operations. He noted that courts have switched to telephonic conferences as a precautionary measure, but vowed to continue bringing cases for photographers.

"Liebowitz Law Firm remains committed to enforcing the rights of photographers and artists during these extraordinary times," Liebowitz said. "Our mission to ensure that individual artists are properly compensated for use of their work is as critical now as ever, particularly as many opportunities for photographers to earn a living have been foreclosed by social distancing guidelines."

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