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Intentional or not, it was infringement

The writer, an attorney with 23 years of experience in the area of intellectual property law, is a Marlboro College graduate.

RE: “When a business encounters a copyright troll” [Business, Jun. 18]:

Ms. Farabaugh’s piece is ill-informed and therefore misguided.

First, two obvious red flags: (1) the author is not a lawyer and is writing on legal subjects (she is ignorant) and (2) the author is the defendant in a lawsuit where the subject matter is also the subject of the article (she is biased).

Here is the most important fact: The author used a copyright-protected work without the permission of the copyright owner. This is copyright infringement.

However, there is a difference between willful and unintentional infringement, but this issue is only relevant to the damages analysis, with willful infringement warranting a larger damages award.

The copyright law authorizes statutory damages of up to $150,000 per infringement because damages are so difficult to measure in infringement cases. How much is actually awarded is up to the court, and the award of full statutory damages is authorized only for willful infringements.

Attorneys’ fees are routinely awarded to successful plaintiffs, almost invariably in cases of willful infringement but sometimes also in cases of unintentional infringement, particularly where the defendant has driven up costs in what generally are “slam-dunk” cases.

There is also the issue of whether Ms. Farabaugh was justified in relying on the unnamed website’s claim that the image was available for free — that is, was in the public domain. Her reasonableness would turn on that unnamed website’s statement to that effect, how clear it was, what it claims the source of the image is, and so on.

It could be that she was justified in relying on the site’s claims. It may be that that website is the actual infringer, in which case the site should be joined as a defendant and the blame shifted to them (if they’re offering the image to drive traffic to their site to generate ad revenue or such).

However, Ms. Farabaugh had a duty of due diligence to make sure that site was credible and that the image she chose to use was, in fact, in the public domain.

I would further like to distinguish between “trolls” who sue under patent law and those who sue under copyright law. It could also be that the unnamed website is working with the photographer to lure people to infringe by making the false statement that it was in the public domain. This would be trolling. But asserting one’s rights is not trolling.

The difference with patent trolls is that the underlying technology is usually of dubious patentability, but it costs tons of money to challenge a patent. With a copyright, it’s easy to see whether it’s the same — so much so, that unlike every other area of the law, once “prima facie similarity” is established, the burden of proof shifts to the defendant to prove it was created independently by someone other than the plaintiff.

Finally, I would like to comment that Ms. Farabaugh’s reaction is quite common among defendants in lawsuits. Because she thought she was in the right at the time, she cannot accept that she is wrong now. Psychologists refer to this phenomena as denial.

Furthermore, because she thought she was right then and can’t admit she’s wrong now, she feels victimized and now blames her accuser of the very same conduct of which she is being accused. Psychologists refer to this phenomena as projection.

I see this all the time in litigation scenarios, which is a major reason I no longer litigate.

Based on the information in that article, Ms. Farabaugh has two options: (1) pay a reasonable fee for the use of the photo and have the case dismissed, or (2) join the unnamed website as a defendant and try to shift the blame to them. I think taking option number 1 is a “no-brainer.”

Markus Brakhan, Esq.
Jackson, Wy.

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Originally published in The Commons issue #260 (Wednesday, June 25, 2014). This story appeared on page C2.

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