copyright troll – Techdirt (original) (raw)

MUSO Just Can’t Stop Sending DMCA Notices On Behalf Of Indicted Fraudsters

from the please-stop! dept

Let’s be clear about this upfront: MUSO is a European copyright enforcement group with all the negative trappings that come along with that industry. That being said, MUSO has also distinguished itself from other piracy tracking groups by making some forward-thinking statements that don’t track with the copyright industries, such as coming out against the use of DRM or when it essentially told copyright holders to fix their business models to start bringing pirates in as customers.

But MUSO is, as we said, still a copyright enforcement group at the end of the day. It sends out millions of DMCA notices every year. Much of that is done on behalf of customers you wouldn’t bat an eye at. But as TorrentFreak points out, at least one of MUSO’s customers is causing raised eyebrows.

While going over the list of clients, one name stood out like a sore thumb. Apparently, Muso is also working with a company named MediaMuv Inc. While this name may not ring a bell with the average person on the street, it sits at the center of one of the most controversial copyright swindling schemes in history.

Last December, the US Department of Justice launched a criminal proceeding against two men suspected of running a massive YouTube Content ID scam. By falsely claiming to own the rights to more than 50,000 songs, the pair generated more than $20 million in revenue.

This would be a perfect place to remind everyone that the copyright enforcement mechanisms at major sites like YouTube are horrifically flawed in ways that opens them up to fraud and abuse. We actually wrote about the MediaMuv case back in April, some four months ago. One of the scammers has pleaded guilty and is awaiting sentencing, which could potentially be incarceration over several years. MediaMuv has been shuttered.

And, yet…

Publicly available takedown notices show that MUSO continues to send takedown notices on behalf of MediaMuv, with the most recent one sent just a few days ago. Both Google and 4Shared took these notices seriously. Several URLs and files were promptly removed, even though the takedown notices were not sent by the legitimate rightsholder.

Apparently, MediaMuv was trying to limit piracy, which could have hurt their illicit Content-ID profits. And indeed, these notices do indeed target Latin American music, which is in line with the activities described in the criminal indictment.

Now, is it funny that these scammers also used MUSO to “limit piracy”? Hell yeah, dawg, that’s hilarious. But what’s not funny is that months after this scheme was found out, still MUSO is out there getting internet content taken down and/or delisted on behalf of those same schemers.

If your job is the enforcement of copyright on behalf of clients, it sure would be nice if MUSO bothered to be sure it was working for actual rightsholders. Or at least not admitted copyright scam criminals.

Filed Under: copyright, copyright troll, dmca
Companies: mediamuv, muso

from the hodor-hodor dept

At this point, every reader here should be aware that YouTube has a copyright/DMCA problem it has yet to solve. Going through the myriad of posts we’ve done about DMCA and ContentID takedowns on YouTube, the theme is abundantly clear: YouTube’s automated systems are wide open for mistakes, fraud, and abuse. If you don’t think that’s the case, you aren’t paying attention. This is especially illuminated when either very obviously non-infringing clips get taken down via DMCA notice, or when super famous clips that have been around forever are suddenly hit with a DMCA notice and get taken down.

Take the following video clip of a CounterStrike game, for instance. This clip has floated around the internet for nearly 15 years, featuring a guy doing a Snoop Dogg impression and then getting stuck in a door and ultimately killed in-game, to the delight of the person who captured the video.

Well, after existing peacefully for those fifteen years, the clip was suddenly the subject of a DMCA takedown, as explained by PC Gamer.

After nearly 24 million views, however, the video has been hijacked by someone who’s claiming the audio copyright on it. Bob Tik, apparently, says that the game audio of Door Stuck is their own original music.

Politely, in his statement(opens in new tab) KinetiK001 says that the claimant is a copyright troll. For my opinion, at least, this is in fact just someone engaging in widespread copyright fraud: Another YouTuber named 3kliksphilip has identified(opens in new tab) that this is a serial offense for that account.

It seems pretty clear that this has nothing to do with the music or lyrics present in the video. Everyone who has looked at this believes this is just a troll causing trouble for whatever twisted reasons they have.

But that’s the entire point. If the copyright enforcement mechanisms for YouTube are so wide open for this kind of fuckery, then that’s a problem. And it’s been a problem. And YouTube hasn’t seemed particularly interested in solving that problem. Instead, the platform has built such a reputation for being terrible on this sort of thing, the end result is the appearance that YouTube is relying on apathy among the public to get away with it.

It’s really nothing new at this point, just another example of how disingenuous people and automated systems have turned YouTube into a horror show of copyright claims and stolen income from monetized videos.

Maybe YouTube is simply so big that it doesn’t care about any of this, but I find that hard to believe. PC Gamer isn’t some minor publication, after all. When it’s gotten bad enough that the gaming industry goes in on this “horror show” this hard, it’s probably time for the folks over at YouTube to start paying attention.

Filed Under: copyright, copyright troll, counterstrike, dmca
Companies: youtube

from the sorry-richard dept

We have a loooooooooong list of stories about copyright troll Richard Liebowitz and his never-ending antics in court. As we noted earlier this summer, he’s been getting suspended from practicing law in courts all around the country (while also piling up more and more sanctions). And while he’d already been suspended in various NY federal courts, he’s now been entirely suspended from practicing law in the state of New York. The NY state courts were following up on the federal court in the Southern District of New York suspending Liebowitz, and sought to impose a reciprocal suspension.

The ruling from earlier this week lays out the details of just a very small fraction of Liebowitz’s long history of lying to courts and other misbehavior. It then responds to Liebowitz’s attempt to wriggle out of this suspension by arguing that he was simply advocating for his clients as best he could, and also that his initial suspension was temporary and “he has not had a full and fair opportunity to litigate the matter in that forum.”

The judges reviewing his case are… unimpressed:

We find no merit in the respondent’s due process contentions. As opposed to the “cursory nature” of the sanctions hearing in Matter of Dunn (24 NY3d at 704), here the respondent was provided a full and fair opportunity to litigate the disciplinary matter before the Southern District imposed an interim suspension. The record confirms that, prior to imposing interim discipline on him, the Southern District gave the respondent notice of the proceeding, by order to show cause. He was given the Statement of Charges and an opportunity to respond. He availed himself of that opportunity, and submitted a 27-page declaration. With the annexed exhibits, his submission was almost 900 pages long. He will have the chance to defend the charges against him at a full evidentiary hearing in the Southern District before that court imposes final discipline. The respondent has cited no authority for the proposition that the procedure followed in that forum prior to imposing interim discipline did not comport with due process.

Similarly unpersuasive is the respondent’s argument that the Southern District’s interim determination cannot form the basis for this Court to impose reciprocal discipline at this time. The applicable rule, 22 NYCRR 1240.13, does not require that a foreign order of discipline be final in order for this Court to impose reciprocal discipline. The rule requires proof that the attorney has been “disciplined” by a foreign jurisdiction (id. ? 1240.13[a]), and provides that after the attorney has had a chance to be heard, upon review of that jurisdiction’s “order” and the record of proceedings there, if relevant, this Court may discipline the attorney for the misconduct committed in the foreign jurisdiction (id. ? 1240.13[c]). Notably absent from the text of the rule is any requirement that the foreign jurisdiction’s discipline, or the order reflecting it, be final.

Where, as here, the foreign jurisdiction has afforded an attorney an opportunity to be heard and determines that, in light of the nature and seriousness of the charges, the strength of the record supporting those charges, and the risk and danger of recurrence, an interim suspension is necessary to protect the public interest, this Court may, upon review of the order and record of the proceedings, reciprocally impose an interim suspension (see Matter of Perskie, 158 AD3d 19; Matter of Hummel, 99 AD3d 133; Matter of Gray, 110 AD2d 672, affd 67 NY2d 440).

As for the idea that he was doing his best to represent his clients’ interests… yeah, that wasn’t going to fly either:

The respondent’s misconduct in litigation has at times endangered his clients’ prospects of recovery, and put his adversaries to needless expense. He has shown disrespect for the courts, as is demonstrated by his admitted conduct before Judge Seibel in the Berger case. His actions in that case included multiple misrepresentations, defiance of her orders, and explicit questioning of her authority as she attempted to probe the truth of his asserted reason for failure to appear at a conference.

The court also doesn’t buy Liebowitz’s more recent attempts at contrition (I’ll note that he’s tried to do this many times before when yelled at by courts):

In addition, despite his recent attempts at introspection and contrition, the respondent nonetheless minimizes frequent behavior that made a mockery of orderly litigation processes by attributing it to “sloppiness” and “administrative failures.” The existing record from the Southern District supports its conclusion that, given respondent’s history of repeated disregard for court orders, recurrence of his misconduct is likely. We find that the respondent has engaged in conduct immediately threatening the public interest and his immediate suspension from the practice of law is warranted.

Of course, we’ve heard that other lawyers have picked up Liebowitz’s practice where he left off, so the copyright trolling continues…

Filed Under: copyright, copyright troll, new york, richard liebowitz

from the you're-a-troll dept

Copyright troll Richard Liebowitz (who once demanded he not be called a copyright troll), who has been suspended from practicing law in NY, continues to rack up embarrassing losses in court. I hadn’t realized that after the Southern District of NY suspended Liebowitz, a bunch of other courts followed suit, asking him why he shouldn’t be suspended elsewhere. In North Dakota, rather than fighting it, Liebowitz meekly consented to the suspension. In the Southern District of Illinois, Liebowitz didn’t even respond to the court’s order to show cause, and was thus suspended as well. In the Eastern District of NY he was suspended as well The 10th Circuit Appeals Court suspended Liebowitz as well. That’s based on just a quick look — it may have happened in other courts too.

But that really may be the least of Liebowitz’s problems. Late last month, the federal district court in Tyler, Texas had to benchslap Liebowitz yet again (right after he was suspended from practicing law in Eastern Texas. The case, once again, demonstrates how Liebowitz may be one of the worst lawyers ever to appear in court. It involved a case in which Liebowitz represented a guy named Robert Berg, who sued M&F Western Products claiming copyright infringement over what he claimed was copied pendants and belt buckles.

Among the many, many problems with the entire lawsuit, was the fact that M&F’s designs predated those of Berg’s. It really is quite something when you sue someone for infringement for a design they released before you did. And, rather than admitting he fucked up, Liebowitz decided to double down. From the benchslap ruling:

M&F Western also sought sanctions against Berg?s counsel, Richard Liebowitz. M&F Western argued that it had ?repeatedly told Mr. Liebowitz that his client?s claims [we]re without basis in fact or law because his client?s Buckle Design was created and published seven years after M&F Western?s.? Docket No. 42 at 1. And ?[r]ather than removing the Buckle Claim when he filed the Amended Complaint, Mr. Liebowitz . . . add[ed] entirely new facts that nonetheless do not address the fundamental failure of the claim.?

The court notes that, while protecting copyright is important, it certainly looked like Berg and Liebowitz had “improper motivation” in bringing this lawsuit:

But on the other hand, Berg?s conduct strongly implies improper motivation. Berg identified twenty-seven other western-wear companies ?lined up for litigation? and was actively sending demand letters that used this case to feign leverage. Docket No. 26, Exs. G & H. Specifically, Berg was claiming that other parties should settle his claims against them because M&F Western was facing $1,500,000 in damages for ten infringing designs in this case. See, e.g., Docket No. 26, Ex. G at 41. This posturing colors all of Berg?s actions here and strongly suggests that he was more motivated to maximize the number of infringement claims for leverage in extracting settlements?both from M&F Western and other western-wear companies?than he was motivated to protect his intellectual property. Compare, e.g., Docket No. 72 at 4 and Docket No. 74, Ex. A at 7, with Docket No. 23, Ex. A (changing the supposedly infringed-upon cross pendant mid-briefing without explanation); Docket No. 72 at 4? 6, with Docket No. 41, Ex. 2 (changing the theory of copyrightability mid-briefing after being notified of potential insufficiency); Docket No. 23 at ? 17, with Docket No. 1 at ?? 10?11 (changing the theory of access after being notified of factual impossibility). Berg?s motive in this case seems improper, especially when considering that his copyright claims were frivolous and objectively unreasonable.

Given that, the court says that it’s easy to say that Berg and Liebowitz should have to pay M&F’s legal fees. Liebowitz and Berg claimed that the fees demanded — $483,808.20 — were too high. Except, even then, he didn’t explain why or how.

Berg does not argue that any of the attorneys? billing rates are unreasonable. Nor does he identify any ?duplicative, excessive, [or] inadequately documented hours from the records provided? by M&F Western. Watkins, 7 F.3d at 457. Berg elsewhere suggests that, once M&F Western filed its dispositive motions, it should have stopped working on the case altogether because ?it knew [those motions] would be dispositive of the case.? Docket No. 105 at 2. But as the Court?s Scheduling Order makes clear, ?[a] party is not excused from the requirements of this scheduling order by virtue of the fact that dispositive motions are pending.? Docket No. 20 at 9. And even that argument addresses only a portion of the fees. Docket No. 105 at 2. Without more, the Court is left guessing about what is objectionable in M&F Western?s billing records.

The court then declines to add more sanctions on top of that, even though M&F requested it. As the judge notes, Liebowitz has already been suspended in the district, and is now on the hook for nearly half a million in this case. It doesn’t see much reason to add more on top of that, even though it seems like it could. But the court still makes it clear that Liebowitz’s behavior was just absolutely ridiculous.

Liebowitz knew M&F Western?s buckles predated Berg?s designs, and yet he signed his name to pleadings, motions, and other papers claiming that the buckles illegally copied Berg. As M&F Western has conclusively demonstrated, its counsel sent Liebowitz authenticated photos of a catalog with the allegedly infringing buckles dated 1995?seven years before Berg created his designs. Docket No. 37 at 7?8. Liebowitz?s only justification for pursuing these claims in the face of such fatal evidence was his unsupported speculation that the 1995 catalog ?easily could have been fabricated.? Docket No. 30 at 8. And realizing this was a losing argument, Liebowitz alternatively claimed that M&F Western did not own the earlier buckles, ignoring the asset purchase agreement that plainly transferred the relevant intellectual property rights. Docket No. 37 at 8?9. Further, this is not a first offense for Liebowitz, who has been described by another court as a ?clear and present danger to the fair and efficient administration of justice.?

So while it doesn’t add any more on top of the attorney’s fees, it does conclude with a warning should he ever be able to practice law again:

Accordingly, the Court hereby publicly REPRIMANDS Richard Liebowitz for his misconduct in this case and ADMONISHES him that, should his ability to practice be restored, future breaches of Rule 11 duties will result in the imposition of more severe sanctions

And… that’s not all. You may recall, last month, we wrote about how the 2nd Circuit had upheld all the non-monetary sanctions against Liebowitz, promising that it would rule shortly on the monetary sanctions. While it took a month, last week the 2nd Circuit upheld all the monetary sanctions as well — which should surprise no one.

Let’s just say that this is not how any lawyer should want a ruling to start out:

Richard P. Liebowitz (?Liebowitz?) has been a member of the bar for a short time. In that time, he has compiled an ignominious record of reprimands and sanctions from judges across the country. This appeal concerns one such sanctions order.

The court then goes through a bunch of the details of Liebowitz’s misconduct in the cases at issue, most of which we’ve covered in previous articles. Then it looks at Liebowitz’s excuses, none of which can stand up to the cold, hard, truth. Over and over and over again the court points out Liebowitz’s terrible, terrible arguments, in light of the fact that he clearly lied to the court. Here’s just one example:

At the start, the district court had ample reason to conclude, as it did, that Liebowitz?s testimony that he received permission was ?on its own terms . . . unworthy of belief? because, inter alia, it lacked corroboration and required the court to accept ?patently incredible? claims such as that Liebowitz was prepared to fly himself and Usherson from Los Angeles and Georgia, respectively, to New York on the morning of the mediation, and on a moment?s notice. Sp. App?x at 31. By his own admission, Liebowitz made no notation of the oral permission he allegedly obtained. Moreover, his testimony that he had spoken about the case on numerous occasions with Freeman, and had informed him about receiving permission from the Mediator for Liebowitz?s and Usherson?s absence, was inconsistent with Freeman?s in-court statements at the initial pretrial conference. In addition, as the district court found, Liebowitz?s claim to have received that permission on October 30 is not reflected in any of the contemporaneous email correspondence, which suggests no awareness on the Mediator?s part ?that either Mr. Usherson or Mr. Liebowitz would not be attending in person the next day? much less that [the Mediator] had given them both permission not to attend that very night . . . .?….

Liebowitz?s claim is most obviously contradicted by the Mediator himself, ?who testified unequivocally at the hearing that Mr. Liebowitz never mentioned the possibility that Mr. Usherson would not attend the mediation in person.? Sp. App?x at 30. The district court specifically credited the Mediator?s testimony and discredited Liebowitz?s based on an assessment of the demeanor of each witness, and the record as a whole. Appellants argue that the district court placed too much weight on the emails between Newberg and the Mediator and that the Mediator, contrary to the district court?s view, was not without any stake in the matter, but had an interest in demonstrating compliance with the Mediation Program?s rules. But ?[w]hen, as here, credibility determinations are at issue, we give particularly strong deference to a district court finding.? United States v. Wallace, 937 F.3d 130, 141 (2d Cir. 2019) (quoting United States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012)), cert. denied, 140 S. Ct. 2551, and reh?g denied, 140 S. Ct. 2799 (2020). After reviewing the record and evaluating the demeanor of the witnesses at the evidentiary hearing, Judge Furman determined that the Mediator?s testimony was credible and Liebowitz?s was not. We discern no error, much less clear error, in this determination.

Things are not going well:

In sum, the factual findings supporting the district court?s decision to sanction Appellants were amply supported and in no way clearly erroneous. Again, Liebowitz admittedly violated multiple court orders and raises no challenge to this conclusion by the district court. As to the challenges that he does make, the court adequately supported its findings: (1) that Liebowitz lied about receiving permission from the Mediator for Usherson?s failure to attend the mediation; and (2) that he acted in bad faith in pursuing Usherson?s claim based on the 046 Registration.

While the 2nd Circuit is a bit unsure about one possible justification for the $20,000 sanctions issued against Liebowitz, it says it has “no such hesitation” about an alternative justification.

We have no such hesitation, however, with regard to the district court?s alternative holding under Federal Rule of Civil Procedure 16(f). 28 Rule 16 prohibits, inter alia, bad faith participation in pretrial conferences and permits the district court to issue ?any just orders? in response to such conduct. Fed. R. Civ. Pr. 16(f). District courts acting pursuant to their authority under Rule 16(f) are free to ?design the sanction to fit the violation,? 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ? 1531 (3d ed.), and their focus ?need not be limited to compensation of opposing counsel,? Media Duplication Servs., Ltd. v. HDG Software, 928 F.2d 1228, 1242 (1st Cir. 1991). Indeed, ?[t]rial judges have considerable discretion in the selection and imposition of sanctions? so as to ?deter neglect? of pretrial obligations. Id. (quoting Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990)). And ?[d]eterrence is a widely recognized basis for determining the amount of a monetary sanction? under Rule 16(f). See Jones v. Winnepesaukee Realty, 990 F.2d 1, 6 (1st Cir. 1993).

And while there may be situations where courts go too far, this isn’t one of them:

We have little trouble concluding Liebowitz?s conduct at and with respect to the November pretrial conference was in bad faith, thus violating Rule 16. Bandshell raised the issue of the registration at that pretrial conference, giving Liebowitz an opportunity to respond. Liebowitz, as the district court found, instead ?stonewall[ed] . . . any investigation into the registration issue,? falsely assuring the court that the registration identified in the complaint was ?the correct registration.?29 Sp. App?x at 10, 51. This was not good faith participation in the pretrial conference or with respect to it.

We also conclude that when assessed in light of Rule 16(f), the record is more than sufficient, even without additional explanation from the district court, to conclude that the sanctions amount chosen by the district court did not require the protections of criminal procedure. As already indicated, the district court explained that ?sanctions of $20,000 [were] no greater than necessary to provide adequate deterrence? to Liebowitz and to LLF. Sp. App?x at 51. And Liebowitz has shown that his conduct is resistant to ordinary efforts to sanction him.

And thus, the monetary sanctions are upheld, as are the non-monetary sanctions, and Liebowitz has been suspended in courts across the country.

Of course, we’re already hearing about a lawyer who supposedly has picked up some of Liebowitz’s cases, and is now filing new infringement cases as well. I’m hoping that this lawyer heeds how Liebowitz’s situation has concluded, and chooses a smarter path, rather than reckless copyright trolling… but I’m not hopeful.

Filed Under: 2nd circuit, copyright, copyright troll, richard liebowitz, sanctions

from the lying-liebowitz dept

Here’s a quick update on infamous copyright troll Richard Liebowitz. As you may recall, after tons of stories about Liebowitz’s horrendously bad activities in and out of court, federal district court Judge Jesse Furman finally threw the book at Liebowitz in an incredible ruling that literally catalogued dozens upon dozens of examples of Liebowitz lying to his and other courts. Furman issued both monetary and non-monetary sanctions. Among the non-monetary sanctions was a requirement that Liebowitz file a copy of this particular benchslap in basically every court where he is representing a client.

Liebowitz whined about how unfair it all was, and appealed the ruling. On Friday, the 2nd Circuit Court of appeals upheld the non-monetary sanctions, saying it will release its opinion on the monetary sanctions shortly. The ruling is pretty short (unlike Furman’s explanation of all of Liebowitz’s wrongdoing), but the general conclusion is: all the evidence says that Furman was exactly right, so his sanctions order was fine.

In this summary order, we focus on the court?s non8 monetary sanctions. ?We review a district court?s imposition of sanctions for abuse of discretion?; however, because the district court is the ??accuser, fact finder and sentencing judge? all in one? when imposing sanctions, ?our review is ?more exacting than under the ordinary abuse-of-discretion standard.?? Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir. 2009) (citation omitted). A district court abuses its discretion if its sanctions are based on ?an erroneous view of the law or on a clearly erroneous assessment of the evidence,? and where its sanctions ?cannot be located within the range of permissible decisions.? Id. (citations omitted).

Appellants? arguments that the district court abused its discretion in imposing the non-monetary sanctions are unavailing. First, the court?s findings that Liebowitz lied and acted in bad faith when he represented to the court that the mediator gave Usherson permission to attend the mediation by phone and when he alleged in the complaint that the photograph was registered were not clearly erroneous. The evidence in the record??for example, the mediator?s testimony and the email exchange between the mediator and Bandshell?s counsel the night before the mediation??supports both conclusions. United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (?When . . . credibility determinations are at issue, we give particularly strong deference to a district court finding.?). Liebowitz?s conduct was also not ?colorable? as required to contest the court?s bad-faith finding. See Wolters Kluwer Fin. Servs., Inc., 564 F.3d at 114. There exists no ?legal or factual basis? to excuse Liebowitz of his duty to reasonably investigate the claims in his complaint. Id.

Second, Appellants? arguments that the non-monetary sanctions are overbroad because of their nationwide scope fail to persuade. Appellants rely on our decision in Enmon v. Prospect Cap. Corp., 675 F.3d 138 (2d Cir. 2012), where the law firm made several misrepresentations and the district court only required the firm to file a copy of its sanctions order with future pro hac vice applications in the Southern District of New York. See id. at 148. However, unlike the law firm?s misconduct in Enmon, Liebowitz?s misconduct in this case??including violating multiple court orders, repeatedly lying to the court, and filing a complaint with a false allegation??justify the nationwide scope of the court?s sanctions. Moreover, Liebowitz?s pattern of misconduct before many judges of the Southern District of New York and across the country, described at length in the district court?s opinion, squarely defeats Appellants? suggestions to the contrary. See, e.g., In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (affirming ?restrictions placed upon [attorney?s] bringing of new actions in all federal district courts? (emphasis added)). See generally Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 3483661 (S.D.N.Y. June 26, 2020).

Finally, the district court did not abuse its discretion by ordering Liebowitz and his firm to include a copy of the deposit files with each copyright infringement complaint they file for a year. Requiring Appellants to include a copy of the deposit files does not impermissibly shift the burden of proof. Although the party challenging the validity of a copyright registration bears the burden of proof, that burden attaches only for presumptively valid copyrights; plaintiffs bear the burden of establishing that presumption. See Urbont v. Sony Music Ent., 831 F.3d 80, 88?89 (2d Cir. 2016); see also Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985). Courts cannot rely on the face of the complaint to establish this presumption in the cases Appellants bring, given that Liebowitz?s associate ?admitted that it is the regular practice of [their firm] to file copyright infringement cases without verifying that the works in question are properly registered.? Special App. 19?20; see also Joint App. 483.

There’s also a fun footnote dismissing one of Liebowitz’s classically silly arguments:

Appellants? argument that the sanction would impose a substantial burden because deposit files are expensive to obtain is unpersuasive. As the district court noted, Liebowitz often settles cases ??in the low thousands or tens of thousands of dollars? . . . a far cry from the 200to200 to 200to1,200 cost of obtaining a deposit copy.?

Liebowitz made some other arguments as well, but the Court notes: “We have considered Appellants? remaining arguments and find them to be without merit.” Nice try, Richard.

Filed Under: 2nd circuit, copyright, copyright troll, jesse furman, richard liebowitz, sanctions

from the so-so-so-many-problems dept

A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.

That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine’s attorneys called into question that “exclusive licensing agreement,” Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself — which raised a bunch of questions.

Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal’s copyright in publishing this photo in this article, published on June 12, 2015.

There are a whole bunch of problems with the lawsuit, and we’ll probably cover only a few of them. However, I did notice that it wasn’t Liebowitz who was representing her — which makes sense since last we’d heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called “Copyright Justice” even though his law firm’s website mostly focuses on real estate law…) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.

The Firm Liebowitz Law Firm, PLLC (“LLF”), and Mr. Richard Liebowitz have been retained by Nkechi Diallo a/k/a Rachel Dolezal, the Plaintiff in the above-captioned matter, to file a claim for copyright infringement. The retainer agreement provides that LLF is authorized to contract and associate with co-counsel. Pursuant to that retainer agreement, LLF has associated with my Firm, The Roshco Law Firm, PLLC and myself, Daniel S. Roscho, and has asked me to pursue this action under its retainer

Even if it’s not Liebowitz, the fact that this is done in partnership with Liebowitz is almost certainly going to raise some eyebrows in SDNY, where Liebowitz has a reputation. Why any other lawyer would want to tie his own reputation to Liebowitz’s is beyond me.

Anyway, Roshco notes that he is filing this declaration because Judge Jesse Furman somewhat famously has some requirements regarding any case involving Liebowitz. For copyright cases, that includes proof of actual registration of the copyright (that has been an issue in some of the Liebowitz cases) as well a copy of the deposit file that was used to register the copyright (another issue in prior Liebowitz cases). Roshco notes that he doesn’t yet have the official deposit copy, but is working on getting it. He still filed the case now because of his concern about the statute of limitations.

It is my good-faith belief that waiting for an official deposit copy of the work at issue before filing the complaint in the instant action may cause Plaintiffs claim to become barred by the statute of limitations and I will promptly file the official deposit copy of the work at issue upon receipt. Therefore, in compliance with the Order, on May 7, 2021 I applied for an official deposit copy of the work at issue from the USCO, which was registered as part of copyright registration no. VA 2-094-553 I am awaiting delivery of the official deposit copy from the USCO.

And, uh, yeah, the statute of limitations thing might be an issue, but I don’t think filing now, before Roscho has obtained the deposit copy is going to help much. The statute of limitations on a copyright infringement case is three years. As the complaint itself admits, the publication by ET Online happened… in 2015. I may not be a math genius, but even I can subtract 2015 from 2021 and recognize there’s an issue there. Dolezal tries to get around this by claiming that she only discovered the article on May 24, 2018 (it’s unclear why she then waited three years to sue), which would put her within the statute of limitations if CBS can’t show that she actually knew or should have known about the publication earlier.

But… that’s still not going to help very much. Under the Sohm decision last year in the 2nd Circuit (which covers the court this case was in), she can only get monetary damages for the 3 years preceding the lawsuit. That is, even if there was infringement, she could only get the “damages” from 2018 through 2021… for an article published in 2015. It’s hard to see much in the way of provable damages there.

And… despite the fact that copyright law has (insane) statutory damages, those aren’t available here. If you register the image after the alleged infringement, you can only get actual damages. Dolezal is also asking for punitive damages which are almost never awarded in copyright cases (many courts think that you can’t even get punitive damages for infringement, and even though SDNY has suggested punitive damages might be available in some cases, there is nothing at all exceptional about this case that would lead to punitive damages. Or attorneys’ fees, which is also asked for.

We haven’t even gotten to the question of who actually holds the copyright to this image. The registration says that Dolezal is the “author” of the image. Looking at the actual image suggests that is extremely unlikely. It looks very much like it was taken by someone else, who would have the most likely copyright claim on the image. Perhaps there is some way that this is actually a selfie, but I don’t see it. Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question. Remember, it’s the person who takes the photo who is almost always granted the copyright, not the person in the photo, or the person who owns the camera. There are a few possible exceptions, but it doesn’t seem like any would apply here.

And, finally, there’s fair use. The image was used in conjunction with a news article and was relevant to the reporting. It’s difficult to see how the use of the image was not fair use.

So even if this is not technically a Richard Liebowitz case, it has all the hallmarks of a typical Richard Liebowitz case, and I cannot imagine that it will end well for Dolezal, Roscho… or Liebowitz.

Filed Under: actual damages, copyright, copyright troll, daniel roschco, fair use, nkechi amare diallo, punitive damages, rachel dolezal, registration, richard liebowitz, statute of limitations
Companies: cbs

from the if-you-have-to-sneak-around... dept

If you have to sneak your transformational copyright bill into a “must pass” government spending bill, it seems fairly evident that you know the bill is bad. Earlier we talked about how the White House is trying to slip a Section 230 repeal into the NDAA (military appropriations) bill, and now we’ve heard multiple people confirm that there’s an effort underway to slip the CASE Act into the “must pass” government appropriations bill (the bill that keeps the government running).

What does keeping the government running have to with completely overhauling the copyright system to enable massive copyright trolling? Absolutely nothing, but it’s Christmas season, and thus it’s the time for some Christmas tree bills in which Senators try to slip in little favors to their funders by adding them to must-pass bills.

We’ve detailed the many problems with the CASE Act, including how it would ratchet up copyright trolling in a time when we should actually be looking for ways to prevent copyright trolling. But the much larger issue is the fact that the bill is almost certainly unconstitutional. It involves the executive branch trying to route around the courts to set up a judicial body to handle disputes about private rights. That’s not allowed.

At the very least, however, there are legitimate concerns about the overreach of the CASE Act, and, as such, those supporting it should at least be willing to discuss those issues honestly and debate them fairly. Slipping them into a must-pass government spending bill certainly suggests that they know that they cannot defend the bill legitimately, and need to cheat to make it law.

Filed Under: appropriations, case act, christmas tree bill, copyright, copyright troll, must pass, spending

from the revealed-in-a-new-benchslap dept

I had meant to write an update on the never ending clusterfuck that is copyright troll Richard Liebowitz last month, as things appeared to be going badly in the two cases where the judges had clearly grown completely tired of the games he was playing with the court: Usherson v. Bandshell and Chevrestt v. Barstool. In both cases, judges had gotten very, very angry at Liebowitz for continuing to lie, play games, mislead and so on. In the Chevrestt case, the judge actually let him off kind of easy last month, saying that for the next two years, any time that he is ordered to show cause for why he shouldn’t be sanctioned again (basically, any time he gets in trouble with a judge), he has to share the details of what happened in the Chevrestt case (in which he does not come out of it looking good).

But the bigger story is in the Usherson case, where this week, Judge Jesse Furman mentions in passing that the Southern District of New York’s Grievance Committee had issued an order suspending Liebowitz “from the practice of law before this Court.” This is temporary, pending “final adjudication of the charges against [him]” so it’s likely to get worse. Also, it only applies to SDNY, but that’s where he’s filed so many of his cases, and the stink over his practically non-stop sketchy behavior in court will follow him everywhere else. It’s not clear exactly which of the many problems that Liebowitz has brought upon himself resulted in the Grievance Committee acting, but the list is very long.

In fact, it’s rather convenient that it’s Judge Furman who is revealing the suspended license, given that he was the one who catalogued the dozens upon dozens of times that Liebowitz had been caught lying to courts or has been sanctioned for lying to courts.

As you may recall, Judge Furman laid out those details in an order telling Liebowitz to file a copy of that order with every case that he was involved with. Liebowitz, in true Liebowitz fashion, waited until the last minute to whine that this was unfair and a violation of his rights. The judge was not impressed and neither was the appeals court.

Liebowitz then had one day to send a copy of Judge Furman’s order to every one of his clients and to every court in which his cases were being heard. At the time, we pointed to at least one case where the order had not been filed, but we had heard from a few lawyers in other cases that no such filing had been made either. And those lawyers weren’t just telling me: they told Judge Furman as well. At the beginning of October, Judge Furman asked Liebowitz to file a declaration addressing why he hadn’t filed the order in some cases (and why he had filed it late in others). Liebowitz then filed quite an amazing declaration on October 15th, explaining how and why he had failed to file the order in 113 different cases. In typical Liebowitz fashion, he had excuses for all of them. He blamed PACER (which we agree is a terrible service), but he also admits that he never thought to use his case management system — the one he’d been forced to install a year earlier as part of sanctions in another case (the one where he blamed the death of his grandfather for failing to appear in court, and then lied about the actual date of his grandfather’s death). That case also involved the judge referring Liebowitz to the Grievance Committee.

Other excuses Liebowitz gave for not filing the order in cases was that he thought some cases were completely over and just missed that they had motions pending. Some cases he closed out between the time the original order was made and his attempted compliance with them. And then there were some cases which he argued he was more peripherally than directly involved in them.

Either way, Judge Furman, finds this literally unbelievable.

Had Mr. Liebowitz failed to file the Opinion and Order in a handful of cases, the failure to comply might have been understandable and excusable. But the failure to file it in 113 cases is astonishing and suggests contumaciousness, an egregiously disorganized case management system, or both. It is all the more astonishing in light of Mr. Liebowitz?s record, set forth in painstaking detail in the Court?s Opinion and Order, and his repeated representations to Judges ? in this District and beyond ? that he had taken steps to improve his case management practices.

Contumaciousness is a good word. Look it up.

Basically, Judge Furman notes that Liebowitz has not shown any real evidence that he’s changed. At all. And thus, it’s clear that the judge believes that Liebowitz deserves further sanctions. However, as he notes, the sanctions should be designed to lead to correction of the bad behavior — and thanks to the Grievance Committee’s suspension of Liebowitz’s license, there’s not a current threat of this behavior continuing.

That said, the ultimate purpose of sanctions is deterrence… and, as Mr. Liebowitz?s extraordinary record of both sanctions and noncompliance with court orders demonstrates, it is far from clear that there is any additional sanction that would serve to deter him. Moreover, on November 30, 2020, this Court?s Grievance Committee ? noting Mr. Liebowitz?s ?repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country? ? entered an Amended Order immediately suspending Mr. Liebowitz ?from the practice of law before this Court pending final adjudication of the charges against [him].? In re Liebowitz, No. M-2-238, at 1-2 (S.D.N.Y. Nov. 30, 2020). Thus, for the time being, there will be nothing to deter when it comes to Mr. Liebowitz.

Accordingly, and in light of the Grievance Committee?s Order of November 25, 2020, the Court, exercising its discretion, determines that additional sanctions are not appropriate at this time.

However, just in case, Judge Furman clarifies that when he said that Liebowitz had to file the order in all of his cases, he did mean all of them, and amends the original order to make that abundantly clear and to make sure that Liebowitz cannot wriggle free from complying.

All in all, there seems to be a decent chance that Richard Liebowitz will no longer be practicing law.

Filed Under: copyright, copyright troll, grievance committee, jesse furman, richard liebowitz, sdny

from the no,-really dept

I think if I stopped writing about other stuff, I could still fill Techdirt with the same number of posts just covering the problems facing copyright trolling lawyer Richard Liebowitz. Today we have a story of Liebowitz being in trouble, yet again. This is in the Chevrestt v. Barstool Sports case. We mentioned this one back in May, where a judge sanctioned Liebowitz and benchslapped him pretty significantly for failing to follow “simple” orders from the court. The judge in that case noted that in the case last year where Liebowitz lied about the death of his grandfather, that he had promised to attend some courses on how to better manage his legal practice. The judge asked for some details about whether or not he actually carried that out:

As noted above, this Order is neither the only time the Undersigned has sanctioned Mr. Liebowitz nor is the Undersigned the only judge in this district who has sanctioned him. In Berger v. Imagina Consulting, Inc., 18-CV-8956 , in responding to a contempt citation that was precipitated by Mr. Liebowitz having lied to Judge Siebel, Mr. Liebowitz?s attorney argued that Mr. Liebowitz should not be held in contempt and recommended a number of steps Mr. Liebowitz should take to improve the professionalism of his practice. Among counsel?s recommendations was professional psychological help and a CLE course on small law firm management. See 18-CV-8956, Dkt. 61 at 4. While both may be helpful, psychological help is best obtained because the patient wants help. Whether Mr. Liebowitz wants to improve or not (and the Court questions whether he does), this Court concurs with Mr. Liebowitz?s attorney in Berger that management training is in order. Accordingly, Mr. Liebowitz is ordered to participate in CLE training regarding management of a small law firm. Mr. Liebowitz must attend such training on or before September 1, 2020. The course must cover the basics of setting up and running a law practice, including how to maintain systems so that Court obligations are tracked and obeyed. Mr. Liebowitz is directed to provide the Court with information about the course he wishes to attend for the Court?s approval. He will, at the end of the course, be required to present proof of attendance and to provide a sworn statement to the Court on what he learned from the course and what concrete steps he has instituted in his practice to improve compliance with the Federal Rules of Civil Procedure and Court orders.

That was back in May. You may note that we are now in September. Liebowitz had many months to write up the required book report for Judge Valerie Caproni. But what he actually turned in would embarrass your average 3rd grader who forgot to do the book report he had a month to write up and then tried to write something on the bus to school. First, he did apparently take some CLE (Continuing Legal Education) classes — though not all the ones the judge required. He lists out six classes he claims he attended. The judge did require him to not just present proof of attending the courses, but also the “sworn statement” about “what he learned” and “what concrete steps he has instituted in his practice to improve compliance with the Federal Rules of Civil Procedures and Court orders.”

That second part is… lacking. First he notes:

One program entitled Panel of Lawyers Who are Doing it: Practice Management Technology to Grow Your Solo/Small Law Practice Ethically was not recorded and thus I was unable to watch this program on-line. However, instead of watching only two of the following in number 5 in your Honor?s Order, I watched all three programs. What I learned in Admitting our mistakes: Owning up to Lawyer Missteps, is relevant here because I didn?t realize that this program was only available as a live event and was not going to be recorded like the other programs identified above. I apologize to the Court for this mistake.

Then he just copy/pasted the outlines of each of the courses into the filing. This is, literally, the least he could do. And it’s not the kind of effort that tells anyone from your 3rd grade teacher to the federal judge who has significant power of your future livelihood that you actually did the work you were required to do. Then, he adds two more paragraphs at the end that… do not actually answer what the judge ordered, and again sounds like he scribbled it down just in time to meet the deadline. It’s the legal equivalent of “this book is a book that I read, that is called [x] and has so and so many pages.”

Based upon what I learned in the above CLE?s, I am continuing to learn new things in my practice management software to run things more efficiently and smoothly. I also am making sure to own up to my mistakes that do happen. I am also improving my time management skills by implementing some of the essential guidelines learned such as managing a plan at the beginning of the day. I am changing the way I use technology such as calendaring to make sure tasks get done on time and items get docketed correctly. I have also learned to delegate tasks that can be delegated to make the work flow more efficient.

I thank the Court for recommending these CLE programs and look forward to continuing to implement what I learned into my practice.

I cringe just reading that.

Guess who else was not impressed. Judge Caproni responded the very next day saying “um, no, try again.” Also, points docked for typos.

Mr. Liebowitz was directed to submit a report detailing “how he is changing the practices in his firm based on what he learned” in these courses. Dkt. 28. Mr. Liebowitz’s above-statement that he is “changing the way I use technology such as calendaring to make sure tasks get done on time and items get docketed correctly” is insufficient. No later than September 8, 2020, Mr. Liebowitz is directed to file a letter detailing the specific and concrete changes he is making to his practice. Additionally, no later than September 8, 2020, Mr. Liebowitz is directed to explain why he unilaterally substituted another course in direct violation of a previous Court order and without the Court’s permission. Mr. Liebowitz is also directed to proofread carefully his submissions before submitting them. His letter dated August 31, 2020, is riddled with typos that presumably would have been caught had Mr. Liebowitz proofread the letter prior to submission.

Oof. Now, to a normal person, you might recognize that this judge is not happy and maybe, just maybe, try a little harder for the next time. But, come on, this is Richard Liebowitz we’re talking about. He basically submitted the same work over again with slight modifications:

The reason why I took all three of the courses in Number 5 is because one program in Number 4 entitled Panel of Lawyers Who are Doing it: Practice Management Technology to Grow Your Solo/Small Law Practice Ethically was not recorded on video but was only available as a live event. Thus, I was unable to watch this program on-line. I did not realize that this program was only available as a live event and was not video recorded as was the case with the other programs identified above. I apologize to the Court for this mistake.

Based upon what I learned in the CLE?s, the specific and concrete changes I have made ? and will continue to make ? include delegating tasks to employees to make the Firm more efficient in managing cases. This includes tasks such as client intake, discovery, motions, calendaring, etc. I am doing this by implementing a plan at the beginning of each week. Also, by making a weekly plan this will improve my time management. In addition, I am actively training and supervising new staff and current staff on new calendaring/scheduling/client protocols in the office while maintaining a well-balanced and flexible work schedule for employees. The continued education on our practice management software is ongoing. In addition, I plan on taking more CLE courses dedicated to management for small law firms so that I can be continually educated by professionals in the field.

That’s it. That’s literally it. I mean, even I can hardly believe that this is all Liebowitz would do. I mean, holy shit, dude. Do you really think this would suffice?

Judge Caproni is… not happy. She wants young Richard in court in person tomorrow to explain himself. In detail.

WHEREAS on September 8, 2020 Mr. Liebowitz submitted a letter that fails to address adequately these two issues (Dkt. 31);

IT IS HEREBY ORDERED THAT: Mr. Liebowitz must appear in-person on September 15, 2020 at 2:00 p.m. in Courtroom 518 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York, 10007. Mr. Liebowitz should be prepared to explain in detail what concrete steps he has taken, based on the CLE courses he took, to improve his practice or otherwise ensure that the non-compliance that gave rise to the sanctions in the first instance will not be repeated. He should also be prepared to explain why, when he learned that due to his own inattention to detail one of the courses he was ordered to take was unavailable, he did not ask the Court to modify its prior order rather than unilaterally deciding he could take a different course.

I get the feeling tomorrow is going to be another bad day for Liebowitz.

Filed Under: chevrestt, cle, copyright troll, richard liebowitz, sanctions
Companies: barstool sports

from the ouch dept

Would you believe it? Copyright troll Richard Liebowitz is in trouble yet again. And yes, we just had a different article about him yesterday, but it’s tough to keep up with all of young Liebowitz’s court troubles. The latest is that a judge has sanctioned Liebowitz and recommended he be removed from the roll of the court in the Northern District of NY.

But here’s the amazing thing: this is all happening in a case where they’re trying to get damages in a default judgment case. As we noted just last week, it’s quite rare for a court to do anything other than rubber stamp a default judgment request (what usually happens when the defendant doesn’t show up in court and ignores a lawsuit). Yet, last week we saw a judge deny a default judgment in a different copyright trolling case, involving Malibu Media. And here, Richard Liebowitz has managed to not only lose a case in which the court clerk had already entered a default, but to get sanctioned and possibly kicked off the rolls of the court. That’s… astounding.

The judge, Lawrence Kahn, is clearly having none of Liebowitz’s usual bullshit. The ruling cites many of Liebowitz’s other bad cases. Ostensibly, at this point the issue is that Liebowitz took the default and wanted to have the court order statutory damages against the defendant (Buckingham Brothers LLC), but instead the court just slams Liebowitz for a wide variety of issues. First, the court points out that despite the default, the original legal pleading was insufficient for statutory damages (and for attorney’s fees) in part because, in typical Liebowitz fashion, he tried to hide stuff from the court. In particular, Liebowitz didn’t allege the date of infringement or the date of the copyright registration. This is important, because you can’t get statutory damages if the infringement is before the registration. This is an issue that Liebowitz has been known to fudge in the past. And here, the failure to plead those key points dooms the request for statutory damages and attorneys fees here:

Although Plaintiff would properly state a claim for copyright infringement if it sought some other remedy, Plaintiff fails to adequately state a claim for statutory damages and attorney?s fees. Plaintiff alleges that it registered the Photograph with the U.S. Copyright Office but fails to include the effective date of the copyright registration as required by § 412(1)…..

In a footnote, the court points out Liebowitz also failed to note the date of infringement, though notes the evidence at least indicates when it may have occurred:

Plaintiff does not include the date of infringement in the Complaint, but an attached document reasonably indicates two separate dates when Defendant infringed the Photograph.

Either way, the lack of information about the registration is just bad lawyering and dooms the statutory damages claim.

But the judge is just getting warmed up. It then says that Liebowitz deserves sanctions for three separate “frivolous assertions.” First up, the billing hours that Liebowitz claimed were at stake in this case (as part of his request for attorney’s fees). The judge notes that Liebowitz has a history of reusing filings, and that raises significant questions about how much time he’s really putting into these cases:

The Court finds that the time LLF recorded for attorney hours is fraudulent and materially false. Plaintiff?s Motion and Liebowitz?s Declaration are almost entirely copy-pasted from counsel?s previous work.

He then names multiples cases with nearly identical filings.

In the present case, Liebowitz alleged that it took seven hours to research, draft, and file documentation that had already been written, in an apparent attempt to gouge Defendant for time and expenses his firm never spent.

Ouch.

Another judge in this District recently identified a similar pattern in Liebowitz?s filings. Judge Hurd noted that Liebowitz ?recycles much of his filings?even his fee requests?from earlier cases,? and suggested that ?[t]his evident redundancy casts significant doubt as to how much time he actually spent preparing his motions.?

And, though you wouldn’t think it could get worse, it does. It appears that not only is Liebowitz copy-pasting the filings, he also did that for his time logs. That’s really bad. That’s fraud.

In this case, even some of Liebowitz?s time logs are identical to his past filings….

And worse. It turns out Liebowitz has already been called out on the excessive nature of the time claims, and yet he still used the identical time claims in this case:

Additionally, Liebowitz asserts that it took one hour to ?Process service of summons and complaint? and ?Request Clerks Entry of Default.? … He has repeated this assertion in this case after at least two other judges found this precise calculation to be excessive.

The court is well aware of Liebowitz’s reputation, obviously, and highlights that all of this seems preposterously stupid by Liebowitz, but… par for the course:

Given the large workload that Liebowitz has placed on his firm, it is not surprising that the majority of the firm?s filings are identical. In May 2020, Liebowitz admitted that he ?ha[s] two lawyers handling over 400 cases at one time.?… On the week of May 4?8, 2020, ?Liebowitz filed nineteen new copyright cases in federal courts around the United States. At the rate of 19 cases a week, he is on track to file more than 900 new cases this year alone.?….LLF has filed over 1,200 cases since 2017 in the Southern District of New York, more than any other lawyer…. This mass-filing approach has resulted in many procedural and substantive errors, and at times, frivolous claims….

It is thus clear by a review of his filings that Liebowitz?s request for attorney?s fees is both frivolous and indicative of bad faith.

Next up: Liebowitz’s claimed hourly rates.

The Court also finds that Liebowitz has used misleading citations in an attempt to recover an unjustifiable high hourly rate of attorney?s fees. ?According to the ?forum rule,? courts should employ ?the hourly rates . . . in the district in which the reviewing court sits in calculating the presumptively reasonable fee.??

The court details a bunch of similar cases where the reasonable hourly rate in that district, was generally around 300perhour.Yetinthiscase,Liebowitzclaimed300 per hour. Yet in this case, Liebowitz claimed 300perhour.Yetinthiscase,Liebowitzclaimed425. That might not seem that far off the mark, except for a couple of things. First, Liebowitz falsely claimed it was “well below” what “other courts in this district have found as reasonable” and… then citing examples from the Southern District of NY. This case is in the Northern district. Something another court in NDNY had already smacked him around for doing. Oops.

In spite of the above case law, in Liebowitz?s Declaration, he states that his hourly rate of 425is?wellbelowwhatothercourtsinthisdistricthavefoundasreasonableforpartners.?…HethencitestoseveralcasesfromtheSouthernDistrictofNewYorkinsupportofthisrate,assertingthatpartnersusuallyrecover425 is ?well below what other courts in this district have found as reasonable for partners.?… He then cites to several cases from the Southern District of New York in support of this rate, asserting that partners usually recover 425is?wellbelowwhatothercourtsinthisdistricthavefoundasreasonableforpartners.?…HethencitestoseveralcasesfromtheSouthernDistrictofNewYorkinsupportofthisrate,assertingthatpartnersusuallyrecover400 to 800anhour….Liebowitzis∗∗clearlyawarethatthisrateisincorrectinthisDistrict,ashehasrecentlybeencorrectedforassertingarateof800 an hour…. Liebowitz is clearly aware that this rate is incorrect in this District, as he has recently been corrected for asserting a rate of 800anhour….Liebowitzis∗∗clearlyawarethatthisrateisincorrectinthisDistrict,ashehasrecentlybeencorrectedforassertingarateof425 based on S.D.N.Y. precedent…. (correcting Liebowitz for failing to cite to any N.D.N.Y. rates and concluding that he is entitled to a reasonable hourly rate of $120-150 based on the District?s reasonable rate for an attorney with his experience). Liebowitz has thus exhibited bad faith in making this argument only a few months after being advised that it lacks any legal basis.

Moreover, multiple judges have adjusted Liebowitz?s rate below even the prevailing rate for partners in N.D.N.Y. based on his preceding reputation and his limited experience, putting him on notice that his claim to be entitled to an abnormally high partner rate in this case is legally baseless for an additional reason….

As the judge notes, lawyers overstating rates happens all the time and ordinarily isn’t a sanctionable offense. But Liebowitz is just so bad at this and has been smacked around so many times on this… the fact that he continues to make these claims makes it sanctionable:

Ordinarily, an overstated request for an attorney rate would not be enough to warrant sanctions. However, considering that Liebowitz has in prior cases repeatedly made similar misrepresentations and been corrected and warned to cease doing so, the Court concludes that this conduct was committed in bad faith in order to recover what Leibowitz knew to be an unjustifiably high attorney rate.

The next problem: Liebowitz inflated the value of the copyright in question:

Liebowitz has also asserted an unreasonable value for Adlife?s copyright. Liebowitz cites to several cases that award $30,000 in statutory damages in default judgments…. However, as the court noted in Sadowski, ?those cases all involve complex and substantial copyrighted works? and ?a more substantial infringement than only a single photograph.?…

Liebowitz also cites to eleven of his own cases in which $30,000 in statutory damages were provided for the infringement of a single photograph…. 23. But as another court has noted in reviewing a similar filing from Liebowitz in the default judgment context, he has not provided a factual record sufficient to support the amount of statutory damages he seeks…. Although the courts in the cases he cites do not provide any reasoning in their ?so ordered? judgments (which reduces the persuasive force of those opinions), these cases appear to be distinguishable in a variety of ways. For instance, among other potentially relevant differences, every infringement was of a unique and relatively sophisticated photograph prominently featured on the infringer?s website. Additionally, several of these cases involved a secondary cause of action for the willful removal of identifying copyright information.

And, once again, what gets Liebowitz in trouble is… he’s already been told all of this:

Once again, Liebowitz is clearly aware of the law in this area, as he has recently been denied a request for $30,000 in statutory fees for the infringement of a single photograph….

Liebowitz has submitted other recent filings that seem to consciously disregard the Court?s correction from Stridiron. Earlier this year, Liebowitz was once again corrected for ?consistently and undeniably assert[ing] inflated values? for a plaintiff?s copyright that were ?wholly unsupported by the evidentiary record.?… Liebowitz and his client in that case claimed that a reasonable license fee for a photograph of President Trump was 4,000….However,thecourtestimatedareasonablelicensefeeof4,000…. However, the court estimated a reasonable license fee of 4,000….However,thecourtestimatedareasonablelicensefeeof100.00 and awarded his client the minimum statutory recovery of $750….

Also, (because it always gets worse), Liebowitz provided misleading statements in trying to claim that the $30,000 amount is correct — again appearing to confuse which district court in NY he’s in.

Not only does Liebowitz fail to provide any evidence that might support a 30,000awardfortheinfringementofsinglestockphotographofpork,andnotonlydoeshecitetodisanalogouscasesinattempttojustifythisamount,buthefurthermakesmisleadingstatementsincharacterizingthatinapplicablecaselaw.Whencitingtothiscaselaw,Liebowitzstates,?inthelastthreeyears,CourtsinthisDistricthaveroutinelyawarded30,000 award for the infringement of single stock photograph of pork, and not only does he cite to disanalogous cases in attempt to justify this amount, but he further makes misleading statements in characterizing that inapplicable case law. When citing to this case law, Liebowitz states, ?in the last three years, Courts in this District have routinely awarded 30,000awardfortheinfringementofsinglestockphotographofpork,andnotonlydoeshecitetodisanalogouscasesinattempttojustifythisamount,buthefurthermakesmisleadingstatementsincharacterizingthatinapplicablecaselaw.Whencitingtothiscaselaw,Liebowitzstates,?inthelastthreeyears,CourtsinthisDistricthaveroutinelyawarded30,000 in statutory damages for a single photograph without holding an inquest and without proof of damages.?…. This assertion suggests that the following case law was filed in the Northern District of New York. However, every case thereafter was filed in the Southern District of New York.

And, even though the Court recognizes this is likely because he’s copy-pasting his work, that’s no excuse:

Although this misstatement conceivably could result from hurried filing, Liebowitz?s citations also omit the location of the filing…. This omission leads the Court to infer that Liebowitz had the intention of misleading the Court….

Given Mr. Liebowitz?s history of similar arguments in other cases and of corrections by courts in those cases, these errors appear to be a strategic choice rather than an honest oversight. Therefore, the Court concludes that Liebowitz acted in bad faith by presenting frivolous arguments and misleading the court with respect to statutory damages.

From there, the Court mentions Liebowitz’s fairly long “history of misconduct.” And thus he issues a relatively small $1,000 sanction. And, yes, that may seem small, but given that this is a sanction in case where Liebowitz has already gotten a default judgment, that’s kind of stunning. And the court notes that the sanctions may be more about “ensuring public knowledge of Liebowitz’s misconduct,” and further notes that his client in this case, AdLife, doesn’t seem to mind using a terrible lawyer, and perhaps this will better inform them of their poor choice in lawyers:

The Court notes Adlife?s continued use of an attorney who has little respect or knowledge of local procedures, violates court orders, lies under oath, and is continuously sanctioned for frivolous lawsuits. Adlife is known for being litigious and has been represented by LLF in at least 41 proceedings since 2018…. Several of Adlife?s cases were voluntarily dismissed shortly after a court request for registration verification, text/minute order for failure to comply with local laws, or a show cause order for a lack of proper service…. This is of no surprise, as LLF is known to voluntarily dismiss suits that are subject to dismissal when it is clear they are in ?hot water.?…

And then the Court pulls out a bigger gun: recommending he be removed from the rolls of the court in NDNY, because of shenanigans he pulled earlier this summer in the Northern District of California… and his failure to notify other courts.

As a separate matter, pursuant to N.D.N.Y. Local Rule 83.1(h), the Court recommends the removal of Liebowitz from the roll of the court for failure to notify the Court of his recent disbarment in the Northern District of California. N.D.N.Y. Local Rule 83.1(h) states, ?[a]n attorney admitted pursuant to this section who is disciplined in any other jurisdiction shall advise this Court of such discipline within 15 days thereof. Failure to do so will result in removal from the roll of the Court.? L.R. 83.1(h). ?On October 7, 2019, an order of disbarment was entered against Mr. Liebowitz by the North District of California after it came to that court?s attention that Mr. Liebowitz had been filing numerous cases in the Northern District without being a member of the State of California bar and without seeking pro hac vice admission, as was required under the Northern District of California?s rules.? Mondragon, 2020 WL 2395641, at *5 (citing In the Matter of Richard P. Liebowitz, No. 19-MC-80228 (N.D. Cal. October 7, 2019)). Ten days later, the judge in In the Matter of Richard P. Liebowitz entered a supplemental order due to Liebowitz?s failure to notify all judges in the Northern District of California of his disbarment….

Liebowitz then filed a motion to ?Correct or Otherwise Vacate the Court?s [October 7, 2019] Order.? In the Matter of Richard P. Liebowitz, Dkt. No. 5 (October 21, 2019). In this motion, Liebowitz argued that he could not be disbarred in the Northern District because he was never admitted in the first place. See generally id. Liebowitz made this contention after having filed a number of cases in California as if he were a member in good standing, see Dkt. No. 17 at 1, and after previously stating in his motion to show cause, ?My membership with the bar of the United States District Court for the Northern District of California should not be terminated,? see Dkt. No. 2 ? 1. In an order issued on June 12, 2020, the court corrected its prior technically incorrect use of the term ?disbarment,? but barred Liebowitz from ever practicing in the district, even on a pro hac vice basis, and ordered Liebowitz to submit a copy of that order in every open case in the Northern District of California in which Liebowitz had been admitted pro hac vice and to attach a copy of the order to any future pro hac vice application. See generally In the Matter of Richard P. Liebowitz, Dkt. No. 17 (June 12, 2020).

On June 3, 2020, after receiving notice of Liebowitz?s disbarment in the Northern District of California, an Advisory Notice was issued by the Clerk of Court in the District of Colorado informing Liebowitz that he was no longer in good standing in that district. Under D. COLO. Atty. R. 3(c), ?[a]n attorney who is not in good standing shall not practice before the bar of this court of continue to be an attorney of record in any pending case.?….

Considering this recent action in the District of Colorado, the disbarment order in Northern District of California appears to constitute substantial discipline as it affected Liebowitz?s good standing to practice in the District of Colorado. Nevertheless, this District received no record from Liebowitz of his disbarment in the Northern District of California, nor, for that matter, of the discipline imposed in the June 12, 2020 order. Accordingly, the Court recommends to the Chief Judge of this District that Liebowitz be removed from the roll of the Court for failure to comply with L.R. 83.1(h).

And yet, Liebowitz, somehow, still appears to have clients. Wonders never cease.

Filed Under: attorney's fees, copyright, copyright troll, default judgment, misconduct, ndny, richard liebowitz
Companies: adlife