A Lawyer’s Perspective on Why Copyright Infringement is So Hard to Fight

Terence Ward over at The Wild Hunt wrote a great piece, “You call it sharing but pagan authors call it stealing,” on copyright infringement in the pagan community and more specifically, pagans thinking it’s okay to upload the entire books of pagan authors and sharing it on Facebook.

A Facebook group called The Wiccan Circle has uploaded the digital files to hundreds maybe thousands of books by pagan authors and are disseminating those copyrighted books for free download. I wanted to get to the bottom of it on my own, so I put in a request to join the group. Unfortunately, I still haven’t been let in, hehe, so truth be told, at this point I don’t actually have any personal knowledge of the allegations. I’m relying entirely on Ward’s reporting of the facts.

For this particular post, I want to address why copyright infringement claims under the DMCA (Digital Millennium Copyright Act) are so difficult to follow through with, from a lawyer’s perspective. I’m a corporate transactions attorney who works in-house at a venture capital firm in the Silicon Valley, so I know my way around intellectual property law. I’ve tried major copyright infringement, trademark, and patent suits in both state and federal court, some of those cases making headlines in the news. I’ve worked in entertainment law and represented independent artists and writers against major production companies in Hollywood, major cosmetics companies, and more. That’s the background context I’m coming from in writing this post.

Let’s say Patty Pagan is a published author with Pagan Publishing House and she’s written the book Paganism 101. (I know. I get so creative with my hypotheticals.) Bobby Badass goes by the screen name LordB_666 and has uploaded the entirety of Ms. Pagan’s book online so that anyone can now download it for free.

Under the DMCA, sure, either Ms. Pagan or Pagan Publishing House can send a take-down notice to the webhost. However, a commenter in that Wild Hunt article I referenced was astute enough to point out that this is effectively like trying to kill Hydra. You can remove it from this site today, but what’s preventing Bobby Badass from coming up with a new screen name, going somewhere else, and uploading the book again elsewhere?

So then what, this becomes a game of cat and mouse and Ms. Pagan and Pagan Publishing House have to spend their waking hours chasing after Bobby Badass? That’s not a very productive use of their time or resources and Pagan Publishing House, for business and financial reasons, is just not going to do that. Their titles do not just include Ms. Pagan’s book, so unless there is some massive financial incentive for Pagan Publishing House to pay more attention to online copyright infringement, it won’t.

There’s also an unspoken attitude among lawyers about baby DMCA cases. By and large, and sure this is a blanket statement, but lawyers do not like baby DMCA cases. There’s no glory in it. (There are the titan DMCA cases poised to change the laws or become precedent, those we like; that’s not what I’m referring to. I’m talking about baby DMCA, which is whether we like the categorization or not, the Patty Pagan versus Bobby Badass infringement suit…)

Lawyers are like Ahab in Moby Dick, after the glory of their white whale. They want to expend their labors on cases that are going to make them out to be a hero. They want a case that’s going to make a statement. Also, lawyers know what wins over juries and therefore will scrutinize the plaintiffs carefully. Is this going to be a sympathetic plaintiff on the stand who is going to make the case for you? Will the jury be swayed emotionally to side with your client? Or are you about to represent an anti-hero, an unlikeable protagonist? No one likes an unlikeable protagonist.

I’ve taken on DMCA suits. DMCA cases are a shitload of labor, time, and energy for not a whole lot of glory or result. You’re expending a lot of your strength whacking around that club at a hydra. It can be a bit of a Pyrrhic victory and most lawyers do not want that on their track record. They’d rather take on cases that are going to make them shine. Baby DMCA cases don’t generally make lawyers shine.

Let’s say you hire a lawyer to take on your copyright infringement case. To start, that lawyer needs to figure out who the infringer is. When the infringer is some guy online going by some stupid-ass handle and has those scramblers that masks his IP address, this is a shitload of work for a lawyer and the litigation game hasn’t even begun. Don’t even get me started if said lawyer finds out your infringer is in eastern Europe, India, or China, or it’s a jurisdiction where more research (meaning more legal fees) needs to be expended on WIPO (the World Intellectual Property Organization Copyright Treaty).

To keep the hypothetical simple, let’s say Bobby Badass is located in Minnesota. Your lawyer is going to charge you $350 per hour for her time while she digs up who the hell Bobby Badass is and where he lives. Also, there’s no reason to go after Bobby Badass in court unless he’s got assets. What’s the point of going after someone for money when that person has no money? So an assets investigation search will also be in play. And more times than not, the likes of Bobby Badass have no assets. Wealthy people generally have better things to do than to scan in Patty Pagan’s Paganism 101 book and distribute pirated copies of it on the Internet.

So let’s say the lawyer has spent 15 hours trying to chase down this ghost of a Bobby Badass and figure out whether Badass has any assets worth going after. We find out Badass is broke as hell but we now know he’s located in Minnesota. You’re located in Texas. Your lawyer is in Manhattan, New York. The lawyer explains all of this to you, lists out your options, pros and cons, and in the meantime, sticks you with a $5,250 bill for legal fees ($350 x 15 hours) when in your mind, nothing has even happened yet.

You’re not the only one frustrated. Remember: lawyers are after their white whales. They want glory. So far this has not been a glorious case and although five grand seems like a lot to you, in the context of legal fees, it’s not much to an IP lawyer. IP lawyers can bill top dollar and five grand is not even a drop in the bucket they typically earn. You’re pissed at the lawyer; the lawyer is pissed at the situation and curses the day this case landed on his or her desk; Bobby Badass has now come up with a new screen name and has re-uploaded Paganism 101 elsewhere, and everybody is back to square one, except now, you’re out five grand.

Pagan Publishing House, whether you realize it or not, isn’t in that much better of a financial position to be litigating this kind of case. Publishing houses in general don’t have the clout they used to have–this is something we all know and have heard mentioned in the news. Small to medium size publishers like the ones that publish pagan books? Even less money, clout, and resources.

Before a publishing house puts in the resources to go after a copyright infringement claim, they need to weigh their financial pros and cons to see if it’s even worth it for them. More times than not, it makes more sense for them to just cut their losses, chalk up these pirating cases as the cost of doing business much the way storeowners prepare contingencies in their profit and loss statements for miscellaneous theft, and find other ways to make up the loss…like take the money from what they’d otherwise pay their authors, or cut corners with their authors in some way.

Ultimately no matter how you dice it, at the end of every IP case, it’s the author or artist who pays the price. The publishing house (or production company, or mega firm that has hired that author or artist) will find a way to offset the losses. How does the pipsqueak author “offset” her losses?

(So for those of you who pirate books from big publishing houses and think you’re some kind of martyr vigilante, sticking it to the Big Man, you’re not. The Big Man will just stick it to your favorite author. The only person you ever end up hurting with copyright infringement is your favorite author.)

Okay, the doom and gloom isn’t even over yet. Let’s say somehow you miraculously overcome every initial hurdle and now you’re in court against Bobby Badass. Let’s say you’ve got an airtight open and shut case of copyright infringement against Bobby Badass, which by the way, also rarely happens. Copyright infringement claims, in reality, are gray. That’s why they end up in court. Because both sides think they’re right. When it’s an “open and shut case,” usually the perpetrator bows out early and settles. If you’ve made it to trial, then that means this is one hot mess of a legal dispute.

Okay let’s assume this is not a hot mess case and Pagan Publishing House and their writer Patty Pagan win their copyright infringement suit against Bobby Badass. Now they’ve got to prove their damages. What was the cost to them attributed to Bobby’s infringement? This is yet another major legal battle to fight. Proving “actual damages and profits” is a bitch, and yes, in quotes because it’s legalese. There are legal definitions attributed to “actual damages” and “profits,” and GAAP, or Generally Accepted Accounting Principles, to contend with. (And, speaking from the experiences of a lawyer, proving these claims are made even bitchier when the artist or company has not been keeping clear, unambiguous accounting and business records…companies are typically okay; artists on the other hand, typically hand me a shoebox full of crumpled paper…)

The royalties that authors typically earn on book sales is meager, so the monetary claim for damages is likewise meager. Publishing houses aren’t banking it either. It’s really tough being a publishing house in today’s world, especially a pagan one, and your profit margin is often laughable. I don’t know why everyone presumes that publishing houses are rolling in dough. They’re not.

And remember, you’ve got to prove actual damages and profit loss directly attributable to the infringement. You can’t include general business losses, the economy, market conditions, or any other factor for that matter and if Bobby Badass has a smart, savvy lawyer on his side, that lawyer will give you hell about your accounting and claimed damages, waxing poetic about the woes of the publishing industry and how there’s a downturn in the economy so everybody’s suffering. All the while more attorney’s fees are racked up on both sides. If you are at this stage of litigation on an IP matter, then chances are each side has paid up to six figures in legal fees by now.

Back to the issue of damages, sure, there’s this thing called statutory damages under the US Code, which you can claim up to meaning maximum $150,000 (as of this writing), but only if the infringement was willful. Now you’ve got the hurdle of proving the infringement was willful. In the case of Bobby Badass, it’s probably not hard to prove willful infringement.

You can also claim payment of royalties, or licensing fees, double the market rate of what such licensing fees would be, for up to three years retroactively. But the damages you’re rewarded on that count won’t likely be more than your attorney’s fees. So even on the off chance you win that reward for damages, you still don’t pocket much money going home. You’re just lining the pockets of both your lawyer and your perpetrator’s lawyer.

Oh, psst… by the way. Most publishing contracts have an indemnification clause that, if you read it carefully, means if the publishing house has to sue on your behalf, then you, the author, have to offset for their costs, including their attorney’s fees. That means no matter how this lawsuit ends, Pagan Publishing House is going to stick the bill on Patty Pagan in one way or another, even if it means pulling it from Ms. Pagan’s royalties for the rest of her life. From this point on, no matter how that lawsuit ends, Ms. Pagan is probably not going to be seeing another royalty check for Paganism 101…ever again. Because every royalty check is going to be seized by the publishing house to offset their legal costs.

Now that we’re in the Internet Age, and let’s presume–almost accurately so these days–that Patty Pagan has a huge social media following and hundreds of thousands of avid fans around the world–what if Ms. Pagan takes to Twitter to call out Pagan Publishing House for sticking her with the legal fees under some obscure indemnification clause? It’s going to be all-around bad optics for Pagan Publishing House and they don’t want that either. Seriously. Nobody wins in these types of battles.

Meaning… we’re back to square one. After thinking through all of these scenarios, which Pagan Publishing House and its legal team will do, they will decide it’s not in their financial or business interest to go after DMCA cases. Patty Pagan most likely does not have the resources to go after Bobby Badass herself. Unless you’re Taylor Swift or J. K. Rowling, you might just have to cut your losses, meditate, find your zen, and move on with your life, too.

Intellectual property law, as of now, is still a unicorn area of the law where only a handful of legal professionals are truly experienced in it. I’ve gone to court in the Midwest where during the hearing, had to explain to the judge the difference between a copyright and a trademark before we could proceed with the copyright issues at hand. Lawyers I’ve encountered in…sorry for the snoot, but anywhere other than the major coastal cities…don’t know the difference between a patent and a copyright, let alone the various types of patents. Copyright itself remains a murky area and it’s not clear-cut what’s fair use and what’s not. Unless you know the exact courthouse, the exact judge presiding over the case, and cultural, political, and socioeconomic leanings of the jury pool, I guarantee to you that you have no clue how your fair use claim or copyright infringement suit is going to turn out. You can’t read what you think are the laws, the factors, the statute on the books and think you know the answer. The actual practice of IP law and the academic, theoretical side of it are two entirely different beasts to slay. And a good IP lawyer is one who has to know both. Those are few and far between, which is why IP law is a unicorn area of the law.

Meaning…IP lawyers can charge an arm and a leg for their legal fees. Talk about the fees that IP specialists in Silicon Valley, Los Angeles, or Manhattan are billing and even lawyers in other parts of the country are floored by their hourly rates. A top dog IP lawyer can bill on meager average $900 per hour and that’s not unheard of or unconscionable.

It’s easy to blame the lawyers in these situations for profiting off everyone’s misery. Why are the lawyers the only ones gaining anything out of the infringement situation? I just don’t know if that’s entirely true. Not all lawyers are scammers just like not all psychic tarot readers are frauds. Come on now. The lawyer is working tirelessly and zealously for every dollar billed. That lawyer is thinking about your case in the shower, while eating dinner, plotting out litigation strategies while she jogs, and rehearsing her opening statement for trial while she drives to and from the office. And those aren’t even the hours being billed. And as mentioned, IP law is a unicorn area of the law, so you are paying for…well… literally, occult or esoteric knowledge. Like a good occultist, a good lawyer is one with a certain je ne sais quoi and it’s that je ne sais quoi paired with experience and book smarts that wins your case. And you have to pay for that je ne sais quoi if you want it.

What’s the point in telling you this? Here’s the problem. With IP, you get what you pay for in legal services. Those who know their shit know their worth and aren’t going to entertain low-bar cases where they can’t bill top dollar and you have to empathize with why. If they’re that good, they’ve got a line of big companies ready and willing to pay that top dollar, so they want to focus their time on those big companies, not on the independent artist who is bickering with them over a $5,000 bill or haggling with them about how maybe they can help your firm design a new logo if you’ll dock off 10%. That’s why it’s so hard for those who are truly hurt by infringement and pirating (the independent artists) to find adequate legal representation. There simply isn’t equal access to justice in these cases.

Let me try to end on some good news. Here’s the good news. In most instances, a strongly worded cease and desist demand letter on premium quality, thick cardstock legal letterhead is enough to scare the likes of Bobby Badass into compliance. Although most IP lawyers still charge top dollar even for that service on your behalf, there’s a growing number of IP lawyers who have a soft spot in their hearts for artists and writers and if that artist or writer is willing to do the bulk of the groundwork, these lawyers will sign off on those C&D letters pro bono…meaning for free. Or for trade…like you gotta help that lawyer design a new logo or something. Lawyers are not all assholes out for the fame and fortune. Sure, we are after our white whale just like you are after accomplishment of your mystical Great Work. But tug at their heartstrings a bit–and they do have them–and you may find yourself with willing legal counsel to do some preliminary legal stuff for free or for trade that’s going to be enough to set Bobby Badass straight.

And finally, don’t underestimate the efficacy of some initial DIY. If you haven’t seen this old post before, check out “Copyright Cease and Desist Letters for Tarot Professionals” where you can download boilerplate template C&D demand letters and DMCA take down notices.

Peace, love, and toward a greater collective.

Super obvious disclaimer: Nothing herein can constitute legal advice on your case specific matter or establish an attorney-client relationship. Like, duh.

4 thoughts on “A Lawyer’s Perspective on Why Copyright Infringement is So Hard to Fight

  1. I am a big fan of your blog and have been so years. I follow each and every review religiously and love it. Whilst I totally understand and sympathise with this article I don’t understand why my country’s name india has to be brought up. I am particularly sore about this since over the past couple of days I only see negative news about india being said in western media. It is a huge country with proud billion citizens some of whom are trying hard to make a living

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  2. Hi Benewell, Love your blog. I am searching and do not find it user friendly. I went to contact you, and you state you do not receive personal messages anymore. So I am leaving my Blog request here:) I would love to see a Blog Archive Dropdown menu where I can choose year and month, and see a list of posts under each month. I found your blog a couple years ago, and have remained frustrated, because I love to read a Blog new to me chronologically, although, I often search by subject too. I find that most Blogs usually have some very basic information on subject in the first year or two. I also enjoy watching a person’s growth and change through the years etc. Thank you

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    1. lol, I would LOVE to comply with this and tried by clicking around in my WordPress admin page. I have no idea how to do this. *womp womp* Once I figure it out, it’ll be there. Until then.. chalk it up to a blogger who has no idea what she’s doing and to this day is still playing it by ear. ^_^*

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