from the technicalities-exist dept
For years we’ve covered the problems of copyright trolls — abusive schemes in which aggressive lawyers and schemers leverage copyright to shake down hundreds or thousands of people over what may be accidental or incidental infringement. In some cases, copyright trolls have gone even further, deliberately seeding their own works in order to find people to demand money from.
But, over the past few years there’s been something of a rise in a different kind of troll — the copyLEFT troll. Law professor Chip Stewart started calling out the issue of copyleft trolls a few months ago and has published an academic paper about the issue as well. At the heart of it, copyleft trolls rely on widespread misunderstandings of Creative Commons in order to shake people down in the same way that copyright trolls do, though in some ways it’s even more nefarious.
I was reminded of Stewart’s warnings about this — and my own interest in writing something about it — recently when there was a semi-viral story involving the popular Twitterer @foone having their Twitter account suspended over what appeared to be a similar kind of copyleft claim. Foone’s explanatory thread (after their account was reinstated), noted that they had taken a CC-by-Attribution photo, but had not appended the attribution, leading to a DMCA claim. In the end that didn’t seem as bad as some of the trolling situations Stewart describes.
At the heart of all this, though, is the fundamental nature of how Creative Commons works — and how some people still are confused about it. Creative Commons was always a sort of clever hack of the copyright system, creating new licenses that were a lot more open, but which still relied on copyright as the backbone. The variety of licenses within the Creative Commons space, however, have at times lead to confusion — especially regarding its non-commercial licenses. Some people have assumed (incorrectly) that Creative Commons licenses are all “non-commercial” and others have disputed what “non-commercial” actually means. To Creative Commons’ eternal credit, the organization has spent a lot of time over the last few years trying to better educate the public, lawmakers, courts, and more about the nature of these licenses and how they work.
However, in the end, they are still licenses, and those licenses are still backed by copyright — which means that if you don’t abide by the specifics of the Creative Commons license, you could very much be liable for copyright infringement. Enter the copyleft trolls. They search for those using CC-licensed works, but not following the exact terms of the license, and then resort to the typical copyright troll shakedown game. From Stewart:
The scam works a little like this:
A photographer posts photographs on Flickr or Wikipedia using the â€œCreative Commonsâ€
tag, a signal to internet users that these can typically be reused online without permission as long as
they include proper attribution.
The photographer searches the web for uses of their photos, or hires a company such as
Copypants or Pixsy to do the search for them, and they ferret out any uses that omit or otherwise
mess up the attribution. This is an easy mistake for a less savvy internet user, particularly when the
attribution requires full hyperlinks to the original and a hyperlink to the license itself, burdening any
ability to use it as a thumbnail. Hits are investigated for potential noncompliance, and demand letters
are sent to each user that doesnâ€™t follow the license requirements perfectly.
Conveniently, the photographer claims an older version of the Creative Commons license
(2.0, for example), which terminates automatically upon any error by the licensee. The most recent
version of the CC license, updated in 2013, allows correction and reinstatement of the license
through proper attribution within 30 days of the discovery of the error, but older ones do not. With
the CC license terminated and easy reinstatement off the table, users of the photographs are put in a
difficult spot â€“ pay the licensing demand of $750 or $1,500 or $3,500, or else.
If the license demand isnâ€™t paid, a copyright infringement lawsuit is quickly filed in federal
court. And these lawsuits are filed in bulk. One German photographer, Marco Verch, has filed 41
such lawsuits in a variety of U.S. District Courts in 2019 and 2020 alone. Verchâ€™s lawsuits usually
stem from stock photography he savvily generates to meet market demand; he posted several such
as â€œface coverings, test tubes and people wearing masksâ€ on his website at the start of the COVID19 outbreak in 2020. Using an older version of the Creative Commons license that â€œincludes
sophisticated attribution requirements that victims claim have led them into a trap,â€ he sues after the
license automatically terminates. A photographer based in Indiana, Larry Philpot, has been labeled a
â€œcopyright trollâ€ by a court after pursuing more than 150 infringement lawsuits in the past decade.
In 2020, a federal district judge expressed dismay when Philpot testified that he had made â€œtens of
thousands of dollarsâ€ licensing a photograph he had taken of Willie Nelson, when the reality was
that he was â€œdescribing settlements extracted after (he) confronted the infringer for failing to
provide attribution per the â€˜Creative Commonsâ€™ license,â€ and that Philpot â€œis more in the business
of litigation (or threatening litigation) than selling his product or licensing his photograph to third
There are many reasons why this is scammy, but the worst of it is that if people are doing searches deliberately for Creative Commons’ licensed works, they’re actually trying to be good internet citizens and abide by copyright laws, rather than doing what lots of other people do — and just copying a work willy nilly from an image search. In short, copyleft trolls are using technicalities to prey on people who are actually trying to be good but who might not be sophisticated enough in copyright law to understand the nuances, and to me that’s truly nefarious.
As Stewart notes in his paper, this is clearly against the very spirit of Creative Commons:
The point of copyleft was never to replace copyright, nor was it to remove the possibility of
programmers and artists from preventing infringement or from profiting from their work. But the
copyleft movement also certainly did not intend to encourage or facilitate high-volume litigation by
copyright owners who found harmless or innocent infringing uses scattered around the Web. As
Creative Commons itself noted after a German court found a photograph under a CC 3.0
Attribution-ShareAlike license to be enforceable, ordering the political party that reposted the photo
online without attribution to take it down, one of the goals of Creative Commons is to limit
litigation of this sort.
Creative Commons has updated its licenses to include things like a period of time in which such technicalities can be fixed — which is a useful addition. However, some courts are also increasingly not looking kindly on these copyleft trolls either. As Stewart highlights, for those who can afford to fight these lawsuits (which is rare in copyright cases), at least some courts are saying the use is non-infringing as fair use, though it seems very context specific:
Nevertheless, some courts have been sympathetic to the transformative use argument in
cases brought by Philpot for posting photos in a way he alleged violated the terms of Creative
Commons licenses. In 2018, the Eastern District of Virginia found fair use for publication of
Philpotâ€™s CC 3.0 licensed photographs of Kenny Chesney and Kid Rock in Philpot v. Media Resource
Center. The court held that use of these photos on the website of a non-profit company engaging in
political advocacy for conservative and Judeo-Christian causes was â€œtransformativeâ€ because, rather
than being about their musical performances, the secondary use was for â€œnews reporting and
commentary on issues of public concern.â€ Namely, the transformative purpose was identified as
â€œinforming citizens about pro-life celebrities and conservative celebrities running for political
office,â€ in part because they changed â€œthe way in which viewers experience the Photographs.â€ The
Chesney photo was used in an online article entitled â€œ8 AList Celebrities That Are Pro-Life,â€ and
the Kid Rock photo in an article â€œKid Rock Announces 2018 U.S. Senate Bid.â€
The result was not appealed, and some critics panned the courtâ€™s fair use finding. But other
courts have extended similar consideration to the transformative use argument by people Philpot
sued. These typically have come in response to arguments on motions to dismiss or motions for
summary judgment, in which judges are considering the plausibility of arguments the parties made
early in the case. Courts have been unwilling to dismiss fair use arguments by defendants due to a
lack of evidence on the record at the early stages, thus not handing Philpot an easy win, though also
not giving defendants an easy out. One case in particular revealed a court seemingly at odds with
itself while ruling on dueling motions for summary judgment coming from both parties.
In Philpot v. WOS, Inc., the Western District of Texas was considering the fair use argument
raised by a website publishing news and commentary about country music called â€œWide Open
Countryâ€ that used two of Philpotâ€™s photographs, one of Jakob Nelson and another of Kenny
Chesney, without proper attribution as required by the Creative Commons license. The website
moved for summary judgment, arguing that the use was transformative because its purpose was for
â€œnews commentaryâ€ about, in the Chesney photo, a story about a man beaten to death after a
Chesney concert, and in the Nelson photo, â€œcommentary unrelated to the imageâ€™s subject,â€ as
opposed to the original purpose of depicting these artists performing in concert. The court said a
reasonable jury could find that these were actually both â€œreproduced exactly for the same purposeâ€
and thus were â€œnot transformative.â€ But the court was no more receptive to Philpotâ€™s own motion
for summary judgment on the fair use defense. The court said a reasonable jury may also â€œconclude
that the parties used the works with different purposesâ€ after all, because the website â€œfully copied
Philpotâ€™s photos to draw attention to articles that had nothing to do with the photos themselves.â€
While the court noted that the use may be, at most, â€œminimally transformative,â€ it said a reasonable
jury could ultimately give that significant weight in the fair use analysis.
Applying Kelly v. Arriba Soft Corp., in which the U.S. Court of Appeals for the Ninth Circuit
found transformative use of an image for use in a search engine, the Northern District of California
found a similar opening for transformative fair use of one of Philpotâ€™s photos. Alternet, a news
website, posted Philpotâ€™s image of Willie Nelson on Facebook with the quote, â€œRednecks, hippies,
misfits â€“ weâ€™re all the same. Gay or straight? So what? It doesnâ€™t matter to me. We have to be
concerned about other people, regardless. I donâ€™t like seeing anyone treated unfairly. It sticks in my
craw. I hold on to the values of my childhood.â€ Alternet argued that adding the quote was an act
of political commentary and altered the purpose of Philpotâ€™s original photo, which the court said
was at least â€œpossible,â€ though not enough to support Alternetâ€™s motion to dismiss in the face of
Philpotâ€™s argument that the photo was used â€œmerely for the purpose of identifying who the quote
Either way, we’re seeing the same underlying issue here: copyright allows for sketchy efforts to shake people down for money — even when they use CC-licensed images, if they get something wrong on a technicality. That’s not a knock on Creative Commons, which remains a really useful tool, but on the underlying copyright law that required Creative Commons to exist in the first place… and has enabled greedy people to abuse the law in the manner described above.