Wednesday, August 1, 2012

Will The Real Troll Please Stand Up?

The expression "copyright troll" is applied to content creators that enforce their copyright by sending infringers cease-and-desist letters that include a demand for financial compensation for damages along with threat of further legal conflict.

One's eyes never need to stray far from the words "copyright troll" to find the inevitable "innocent infringer."

There is, of course, a chasm between the gravity of rape and the gravity of copyright infringement, but the engrained blame-the-victim culture bears comparison.

A case in point is the ExtortionLetter.info forum which now has a whole section entirely dedicated to the vilification of writer Linda Ellis who makes liberal use of copyright law to maintain exclusivity in the distribution of her poem about tombstones called "The Dash." The section was created after charity auctioneer April Brown, having received a cease-and-desist letter from Ellis, flinched violently when poked, and made considerable noise on the internet. Derision of Ellis is typically accompanied with sentimental protestations of the innocence of infringers, and glorification of those that complaint loudly when caught.

An offshoot website adds little to the discussion other than a garrulous collection of graphic depictions of Ellis stuck in a toilet or with green skin, creating confusion about who the trolls are in the dispute: Ellis, or her detractors?


In the copyright infringer's utopia,
author Linda Ellis is a green witch.


What are content creators supposed to do in cases of infringement, according to the copyright-troll police? According to a poster on the ExtortionLetter forum,
If it appears that they did not re-sell the image or make profit off the use of the poem, then I suggest a small monetary payment - $200 is my suggestion[...]. If they don't take it down, then she is justified in asking for $7500 as it becomes a willful infringement. If they take it down but ignore the request for $200, a follow up letter seeking more damages -perhaps $500 now can be sent [...]. These amounts still make an enforcement program profitable but not extortionate.
This idealized course of action is utterly absurd.

Suppose a content creator were to send, as suggested, a cease-and-desist letter in his own name asking for $200. How many people would respond to such a request, coming from an individual rather than a law firm? None.

How many people would insist on keeping the image, and therefore considered willful infringers? One would suspect, very, very few.

That would make copyright laws entirely useless. If this was common practice, no one would ever worry about infringing copyright since there would be virtually no penalty incurred when caught. Once people become aware of the potential costs of falling into a random copyright speed trap, they police themselves with their own fear. Take that fear away, and we're left with unbridled copyright infringement and content creators everywhere spending considerable amounts of time chasing their content and sending polite letters.

In the copyright infringer's utopia, they are all innocent, and their actions are devoid of consequence. Content creators are expected to give their content for free, or spend half their time shaking their index fingers in disapproval. Not only this, but everyone can infringe with total impunity upon anyone's intellectual property if it's not for profit!


It's not clear who is trolling who.


This begs the question of why content creators don't ask for "reasonable" sums say, under a thousand dollars. Truth is, once they reach the exasperation point of sending cease-and-desist letters, they have already paid their attorney a sum that varies between $1000-1500. If they only want to strike fear in the hearts of infringers, and just break even, they need to ask for at least that amount. Typically, law firms will charge $150 per hour to negotiate with the infringing party. The content creator doesn't know ahead of time how much time will be spent in negotiations, therefore, the amount requested from the infringer will reflect this, and cover the risk, of at least a very conservative 5 hours of lawyer's time, propelling the demand in the $1750-2250 range. Now we need some negotiation headroom, doubling the amount to $3500-4500. Add the risk of further litigation, and the costs involved. Even if a court rules in the favor of the artist, some infringers simply don't have the ability to pay.

This is for an artist merely wanting to break even in the conflict; he'd be wise to ask for a little more, if only to avoid a deficit. Given all the risks, the economics of cease-and-desist letters require that the amounts asked be at least in the vicinity of $10,000 - most of which will go towards leather seats in the attorney's new BMW, and very little in the artist's pocket, if anything.

Next post: choosing appropriate recipients for cease-and-desist letters to send the strongest possible message to pinners that YES, they can be sued, and it's not cheap.

10 comments:

April Brown said...

So, you believe when someone buries a child and shares that stupid Dash poem in a funeral program or on a bereavement webpage dedicated to that child, they should then pay Linda Ellis $7500? This is a poem that is not for sale anywhere. The poem can be purchased on "stuff" for as little as $8.00. What makes that poem worth nearly 1000 times more because it was shared? How did that mother in mourning profit? And your reference to my getting "Poked" is uninformed. Linda Ellis attacked me via emailing and calling my clients, my husbands' employer, and donors to my charity. She sent me over 120 emails. She used her family, aliases to attack all my on-line accounts. She filed false copyright notices on all my internet content. THIS coming from an inspirational author. If you are going to write about this subject you might consider the real victims of these vicious trolls like Linda Ellis.

A Glass Artist said...

Hi April, thank you for your comment. Let me clear up something: the details of your battle with Linda Ellis or the merits of her particular brand of copyright enforcement are not relevant to graphical content creators whose work is being infringed upon by armies of well-intentioned, but ultimately ignorant, "pinners."

I am disappointed that you didn't address any of the actual points I am making on the topic of this blog, which is Pinterest.

The first take-home message of my article, if you read it, is that artists wishing to rightly enforce their copyright can expect some noisy vilification (as evidenced by your context-blind hysteria over my post about Pinterest) and should have their attorneys include an airtight confidentiality clause.

The second take-home message is that the amount of damages demanded may seem unrealistic to the infringer, but they are dictated more by the economics of having to hire an attorney than the actual worth of the damages. Further, most of the money would end up in the lawyer's pocket and the artist would have to settle for pocket change; so artists are caught between a rock and a hard place. They can let themselves be victimized by the crowdsourced image content scrapers infringing their intellectual property, or they can be victimized for daring to defend it with the (costly) legal means at their disposal. It's not a happy situation.

I welcome any comment you might have about Pinterest, but please keep the nitty-gritty of your fight with Linda Ellis to the many other venues that are available to you.




April Brown said...

"A case in point is the ExtortionLetter.info forum which now has a whole section entirely dedicated to the vilification of writer Linda Ellis who makes liberal use of copyright law to maintain exclusivity in the distribution of her poem about tombstones called "The Dash." The section was created after charity auctioneer April Brown, having received a cease-and-desist letter from Ellis, flinched violently when poked, and made considerable noise on the internet. Derision of Ellis is typically accompanied with sentimental protestations of the innocence of infringers, and glorification of those that complaint loudly when caught."

It is my opinion that you minimized my situation during the setup of your post. I shared the methods Linda Ellis, the copyright troll, uses to intimidate and harass people and since you mentioned me, I responded to that point only purposely leaving out the details. The fact is all artists of all mediums have similar positions on copyright infringement.

I may not be a sympathetic figure, but I have met dozens of victims that have been crushed emotionally and financially by copyright trolls. We do not get simple Cease and Desist letters as you stated. I received a $7500 Demand Letter. Additionally, I am not in a fight with Linda Ellis and never have been. I have spent 9 months fending off her attacks. I want people to stop sharing The Dash. I started a campaign called BEWARE DON'T SHARE to keep people from posting copyrighted content--all copyrighted content.

I do believe that all copyrighted content is at issue. The content on the internet was catalogued and shared by billions of people over the years. We were taught to share. Sharing is thought to be much like keeping score for artists. Some sharers even think they are part of something bigger than their single act of sharing. The average person has no idea they are doing anything wrong when the copy and paste content and share that content on Pinterest, facebook, etc. They certainly do not expect to be labeled a thief, liar, criminal, threatened and bullied, humiliated and shamed into paying huge sums of money for that innocent sharing.

The honest approach to protecting content is through an aggressive public service campaign initiated by the copyright office and copyright holders. People can and will stop sharing content when they understand they are doing something wrong. Right now, people believe when they share they care.

Further, copyright holders need to establish a price for their content and post that price. The author of the content I shared freely shared and still freely shares that content. There is no rhyme or reason to who she allows to share it and who she decides to charge for the content. There is no posted price or method for purchasing the content. Even if she were to post a price on her website today, she will remove it tomorrow making it impossible to keep up with the "rules" from one creator to another.

I am doing everything I can to warn people to stop sharing. Period. With that said, I will continue to support victims of my copyright troll.

A Glass Artist said...

I will only address the parts of your letter that are pertinent to Pinterest. Thank you again for your input in the discussion.

"We do not get simple Cease and Desist letters as you stated. I received a $7500 Demand Letter."

C&D are generally accompanied by a demand for financial damages. If you read my article, I explained why the economics of sending someone a C&D letter are such that if an artist hopes to pocket $200 in damages, he has to ask for $7500 and that all but the $200 will go to his attorney. And I don't care how much Linda Ellis pays her copyright agent. Attorneys will charge $1000-1500 just to send the letter, and a larger bill for negotiations down the line. Can you find an attorney that will charge $200 for the whole procedure? If that existed, most artists would GLADLY send C&D letters asking for a mere $300. But the reality is that attorneys are crazy expensive.

"The average person has no idea they are doing anything wrong when the copy and paste content and share that content on Pinterest, facebook, etc."

And how can, say, 10,000 content providers educate 10 million pinners? If the worse that will happen to pinners is that they'll notice Pinterest has taken something down after a DMCA (if they even bother looking at their own image hoards, otherwise they might never even notice), they get all the fun, artists get all the pain. That's why I'm beginning to think that the only way to educate the masses is a few exemplary lawsuits. Then, some these people will do like you are doing; they will work tirelessly to warn the others, the downside being that they'll probably vilify the copyright holder in doing so.

Further, copyright holders need to establish a price for their content and post that price.

I can't speak for every content provider, but every page on my main websites have a copyright statement in fairly big letters. The price for my content is ZERO because I do not consent for anyone to post my content on any other websites. And as my copyright statement states, other than reposting my work, my visitors can pretty much do anything they want with my designs, including selling crafts made from them. I have chosen to defend only one aspect of my copyright, which is the display and distribution of my work on the internet.

"There is no rhyme or reason to who she allows to share it and who she decides to charge for the content."


Unfortunately, that's what confuses people. I choose to defend one aspect, Linda Ellis chooses to defend another, some photographer will choose yet another angle. Copyright holders tend to defend only the parts that compete with how they exploit their own intellectual property.

Do consider the case of one pinner who tried to pin some of my images, and pinned a cleverly substituted copyright warning instead - which means that she tried to over-ride the no-pin meta-tag warning to begin with. What did she do, after twice being thwarted? She uploaded it to her computer, and pinned it anyway. There are people that just don't care, because they know nothing will ever happen to them. I'm sure if I sent her a costly C&D letter she'd think herself an innocent infringer as well, and I'd be the bad guy; that's just human nature.



April Brown said...

I have read your posts and the article carefully. Like most readers, I takeaway the parts that jump out of me and may misunderstand the intention of your writings.

Unethical people exist in every aspect of life. My ideas and content are used by auctioneers without my permission in this market and worldwide. I too have copyright notices on all pages. I can prove I am the creator but instead choose to create more useful and meaningful content rather than ruin my reputation in my industry by creating enemies.

Educating people about internet issues through lawsuits that are only publicized on the internet is why this issue has gone on for 10 years. As an example of people's ignorance, I prepared a 20 minute presentation that I share with business organizations, networking groups, and anyone frankly who wants to listen. I tell my story and include my warning BEWARE DON'T SHARE. When I ask by a show of hands who has heard about copryight infringement and copyright trolling nary a person raises a hand. When I ask them if they know where all the content on their website originated from, again people have no idea if their web designer paid for those images, videos or words.

People are clueless. Further, people have been duped and often entrapped by content creators, lawyers and websites that continue to generate fear, hostility and money for attorneys and little for the creator. In my case, I was sent the content via one of those "spiritual share" emails. I shared it as it came to me, with the authors name and an embedded link to her website. Women are encouraged to share everything and we do. If Linda Ellis had sent me a nice letter with a reasonable request for payment I would have compensated her for that simple sharing.

I think it is important to note that my troll is not using attorneys to send letters. She is the master of her intimidation campaign and her family and friends work for her on commission. I don't believe most content providers use attorneys to send C&D letters. It cost nothing to file false DMCA notices or deploy tactics bordering on criminal too harass people. Linda Ellis has been successfully collecting from people simply by sending a string of intimidating emails and late night phone calls.

I do believe content creators can protect themselves by speaking out in the national televised media. The energy needs to be put into a publicity campaign and not into bitter legal battles. Those legal battles are rarely won by content creator and the damage to the content creator may be career ending.

Since I've become involved with this issue, I have discovered many poets and photographers who want their content shared freely. If there is no notice embedded in the content and the content is passed from person to person how can we know the intent of the creator? The answer is to share nothing and start charging a fee to the creator if they want the content shared.

I do believe a solution can be found that meets the needs of both sides minus the insults, character assassinations, and the waste of our time and money.

A Glass Artist said...

"I don't believe most content providers use attorneys to send C&D letters."

I'm quite sure if I just typed a letter myself and mailed it to my infringers, the letter would be promptly tossed in tne nearest recycling bin and forgotten.

"I do believe content creators can protect themselves by speaking out in the national televised media."

Alas, that hasn't helped the music industry. It won't help the image industry, either.

I'm resigned to legal recourse being the only "solution" - because a few creators crying foul against 10 million women pinning away, and the millions of dollars in venture capital money backing them up, aren't going to be heard.

It's all very unfortunate, really. The corporate greed, the ignorance and lack of respect, the denigration of people fighting to carve out a living from their artistic endeavors, the "sharing" (aka distributing) of what doesn't belong to you to get the attention of strangers (followers)on the internet.

The internet was shaping up to be a nice cottage industry of experts providing content, instructions, photographs, recipes, etc. Until corporate pirates came in, and decided to steal it all by capitalizing on people's ignorance, and short-sightedness.

Have Respect said...

A Glass Artist - Thank you...and if you'd like the TRUE facts, please visit www.lindaellis.net. April Brown is a Lead Advocate and "Ambassador" for ELI, a group whose founder, Matthew Chan (titled "cult" leader) was recently found GUILTY of stalking author Linda Ellis in a courtroom in GA.

Matthew Chan said...

Since my name has been brought into this by "Have Respect" where he/she claims that I was found "guilty" of stalking Ms. Ellis.

First, it was not a criminal case, it was considered a "domestic" case although I have never met or contacted Ms. Ellis. And a permanent protective order was issued. That is not a "criminal sentence" of any kind.

Second, anyone can Google my appeal case,"Chan v. Ellis", now with the Georgia Supreme Court. One can get a glimpse of what some of the Georgia Supreme Court Justices might be thinking regarding this overbroad and overreaching protective order devised by a divorce lawyer (representing Ms. Ellis) and a local court judge who works with that same lawyer's. Do a Google search on "Chan v. Ellis Georgia Supreme Court Oral Argument" and I think people will be enlightened to the comments made by the Georgia Supreme Court Justices regarding this so-called "stalking" case. It is actually a First Amendment and Section 230 CDA case which was entirely disregarded at the local court level. Big difference.

I won't run away from what "Have Respect" is claiming. It is patently inaccurate and I publicly challenge it. I am doing my best to get the word out on my case to see how things can go terribly wrong and backfire when local courts and an overzealous who want to get emotionally involved with so-called victims.

Back to the original article, it is true that there are many dirt-bags that will disregard copyright notices. But it has been my limited experience that the few notices I have sent out on my behalf with no claim of financial damages has been met by cooperation and compliance.

There is also the issue of misleading people about the threat of lawsuits and possible damages collected when, in fact, some know they are not going to go that road and court cases frequently award minimal statutory damages. It is all about taking advantage of legal ignorance and making disproportionate claims.

Not everything is what it seems.

Matthew Chan said...

I forgot one comment. Let's assume for a minute I openly "admitted" to be a "cult leader" as "Have Respect" asserts. How many people actually believe this if I TRIED to convince people of this?

Someone seriously needs to reassess the assertion that I might be a "cult leader". Does it actually diminish the credibility of me or the person claiming it? Food for thought.

April Brown said...

In the Fall of 2014, Matthew Chan prevailed on his appeal against Linda Ellis before 7 Supreme Court Justices. The hearing also revealed that Linda Ellis altered evidence against Matthew Chan to get the earlier conviction. Visit www.defiantely.net and read a 6 part series chronically the Georgia Supreme Court Case. A book has been written by April Brown, "Poetic Justice, The True Story Behind The Dash and One Victim's Mission to End Copyright Bullying and Extortion. www.getpoeticjustice.com.