Copyright Trolling Evolved: Okularity Accused Of DMCAing Social Media Accounts, Then Demanding MILLIONS To Reinstate

from the copyright-trolls-just-get-worse dept

A decade ago, one of the most ridiculous copyright trolling outfits was CEG TEK (which stood for "Copyright Enforcement Group... um... TEK"). It would shake down people like any other copyright troll, but it also had a "CTO", named Jon Nicolini, who CEG TEK would trot out as a questionable forensic expert in various trolling cases.

It appears that Nicolini has since set out on his own, creating a more modern form of a copyright trolling operation called "Okularity." We've talked recently about how some folks have, instead of using the courts, simply been using social media takedowns via bogus copyright claims as a form of extortion, and that's become quite popular. However, so far, it seems that this has mostly been done by stupid kids looking to make a quick buck.

Nicolini and Okularity appear to have professionalized the extortion racket.

And they may have picked on the wrong person. In a recently filed lawsuit by Enttech Media Group, the parent company of the famous (and excellent) Paper Magazine, lawyer Richard Tauler lays out in great detail the kind of scam shakedown that Nicolini runs via Okularity:

Defendants are engaged in a scheme to deprive Plaintiff and similar digital media companies of their assets by unlawfully manipulating the take-down notice provisions of the Digital Millennium Copyright Act (“DMCA”). Specifically, Defendants have created software for the express purpose of disabling valuable commercial accounts on social media platforms (in this case Instagram) so that they can then demand extortionate sums (in this case over a million dollars) from the account holders to have the accounts restored.

The scheme operates in the shadows of the Copyright Act and the DMCA. The DMCA provides a rapid procedure (referred to herein as a “DMCA Notice”) so that copyright owners can protect the widespread proliferation of their content digitally. A DMCA Notice requires a statement under penalty of perjury that the submitting party has a good faith belief that the content identified in the notice is infringing on a copyright and that the submitting party is either the copyright owner or an authorized agent of the copyright owner.

Most social media platforms, including Instagram, have policies whereby accounts are disabled once a certain amount of DMCA Notices have been submitted on a particular account. Once an account reaches this threshold, Instagram will not reinstate the account until the underlying copyright “dispute” is resolved. Because of the work associated with the identification and investigation of copyright claims, as well the DMCA’s penalties for misstatements, it is generally unlikely that owners of legitimate copyrights would abuse this system.

However, given the massive financial incentives provided to mercenary litigants by the Copyright Act, would-be claimants have leveraged advances in technology to create economies of scale in pursuing claims. Specifically, Okularity has developed software that crawls the internet for images that infringe on allegedly protected works. Through its proprietary software, Okularity automatically generates and submits DMCA Notices to any social media platform, including Instagram, containing an image in Okularity’s database. Okularity does this without any of the investigation, warning, or legal analysis required by the DMCA, let alone any demand letter to the alleged infringer.

Rather, Okularity lies in wait while DMCA Notices accumulate to the point where Instagram disables the account. Only then does Okularity begin to negotiate “settlement” for the alleged copyright claims. Okularity operates this way because Okularity knows that Instragam is the lifeblood of any digital media company, particularly one like Plaintiff Paper, which primarily is engaged in the business of reporting and commentary of popular culture news and, as such, targets a young demographic that uses Instagram as its primary source of media consumption. Okularity knows that if a business like Paper has its Instagram account disabled, it has a metaphorical gun to the head of the target company, since it also knows that Instagram will not reinstate the account without a resolution of the “dispute.” With this type of leverage, Okularity (and in turn the Clearinghouse Defendants) can demand sums that they would never be able to demand with a straight face otherwise, putting owners of even large businesses like Plaintiff in a life-or-death situation.

Pretty fucking sketchy, no? As the lawsuit notes, however, this appears to violate the terms of the DMCA regarding what you need to do in filing a notice -- making this an interesting test to see whether or not the courts might finally give Section 512(f) of the DMCA (the part that says you can't file bogus notices) some more teeth. As we've noted, courts have been reluctant to care much about 512(f), which has set up a very unbalanced system, in which tons of people and companies regularly abuse DMCA notices. Usually for censorship.

Here it appears to be for extortion.

The specifics of the Paper Mag / Okularity situation detail how this seems to be an entire business built around extortion, with a bunch of unauthorized practice of law built in as well.

Okularity, which is not a law firm, purportedly “represents” the “Clearinghouse Defendants” with respect to their Copyright “claims.” Okularity’s “CEO” Jon Nicolini, created the software Okularity deploys to file DMCA Notices, and negotiates “settlements” with victims of the scheme once they contact Okularity. Nicolini, who is not an attorney, implies that he is an attorney to victims by interpreting the application of the Copyright Act to images, engaging in damages analysis regarding “claims” of his “clients,” and by negotiating resolution of legal claims on their behalf.

Defendant Backgrid actively solicits members of the public, including persons with whom it has no relationship and about whom it has no knowledge, to upload to it photos which Backgrid will then ostensibly “license” (for payment) others to display and otherwise exploit. Backgrid then uses software to automatically generate copyright management information (“CMI”) so that it can track whenever an image is used. Since Backgrid conducts no due diligence of images uploaded to its website for exploitation, and the corollary opportunity for abuse, Backgrid itself has been sued by actual copyright holders for copyright infringement.

Defendant Splash is similarly a clearinghouse for photographs with a checkered past. In 2018, Splash was sued by soccer star David Beckham for its “predatory and distasteful” tactics, which included demanding payment from Mr. Beckham for posting a picture of himself (taken by a paparazzo) on his very own social media account. Beckham v. Splash, Case 2:18-cv-01001-JTM-JCW (E.D. La.). Counsel for David Beckham viewed the $40,000 demand as an attempt to “extort.”

Okularity’s new business model pre-empts such lawsuits by using DMCA Notices instead of demand letters. However, since the DMCA Notices are automatically generated and submitted without any attorney supervision, Okularity does not engage in any analysis prior to generating and filing DMCA take-down notices as it should.

Rather, Nicolini operates the scheme with the sole objective to disable social media accounts. Not only is no demand letter needed, the scheme makes it so that its victims come to Okularity, often in a state of desperation, once they realize their asset is being held hostage. This is precisely what occurred in the instant case.

It was only after Okularity filed forty-eight (48) DMCA take-down notices against Paper that Instagram disabled Paper’s account. The same day, July 8, Paper was provided with the contact information of Nicolini, who immediately began negotiating the “claims.”

Nicoloni suggested that Paper was facing $4.65 million in damages under the Copyright Act. Nicolini curiously added that it was not his “first rodeo.” A screenshot of the email is below:

Sixteen minutes later Nicolini responded, this time with apparent authority to communicate on behalf of his “clients” under Federal Rule of Evidence 408 to settle for $1.01 million:

However, Nicolini is not an attorney and is therefore unable to assert legal claims on behalf of his “clients,” and likewise cannot negotiate and enter into agreements on their behalf in the context of a copyright lawsuit.

Needless to say, this offer was unable to be accepted. In further effort to reach a resolution, the undersigned requested Mr. Nicolini provide the DMCA notices so that Plaintiff could assess the claims at issue. Nicoloni has refused to do in the absence of a “non-disclosure agreement.” When asked why a “non-disclosure agreement” would be needed, Nicolini had no answer

That's... pretty fucking sketchy in many different ways. The lawsuit argues that the defendants breached 512(f)... but then also throw in a RICO claim. And that always seems iffy. As we all know, the Popehat rule of "it's not RICO, dammit" tends to apply. And I'd still lean towards it not applying here, but I have to admit that this is closer to an actual civil RICO claim than you normally would see. You do have a group of individuals / companies, working together in a pattern to shake down businesses. I still don't expect that claim to last, but this sure does look like a traditional shakedown scheme, using DMCA takedowns for leverage over social media accounts.

Filed Under: 512f, automatic takedowns, copyright, copyright troll, dmca, dmca 512, exotrition, jon nicolini, rico, shakedowns, takedowns
Companies: ceg tek, okularity, paper magazine

Copyright Troll Richard Liebowitz Drops Case After Suing On Behalf Of The Wrong Party And Trying To Swap Plaintiffs

from the why-do-people-still-hire-this-guy? dept

Why oh why do people still hire copyright troll Richard Liebowitz? There are just so many stories of him messing up cases and getting scolded by judges, you'd think that people would think twice. But then, yet another story of Liebowitz messing up comes to light. The latest is a real doozy. It involves the somewhat controversial person, Rachel Dolezal (who now goes by Nkechi Amare Diallo -- a name that has spun up plenty of controversy itself) , who made a lot of news five or so years ago when it was exposed that, despite calling herself a black woman for years, she was actually white. Last summer, she made some news again, when she declared on Instagram and Twitter that she was bisexual. I'm not entirely sure I understand why this was newsworthy, but some publications ran with it -- including Paper Magazine (though, it appears the story has since been deleted).

Either way, in the fall, an operation called Polaris Images, represented by Liebowitz, sued Paper Mag's parent company, Enttech Media, because it had posted an image of Dolezal's Instagram post referenced above. According to the lawsuit, Dolezal had provided Polaris with an "exclusive licensing agreement" concerning various images of herself -- including the one in the Instagram post. Paper Magazine's lawyer, Robert Tauler, pointed out (among other things) that Polaris couldn't possibly be the exclusive licensee, because in posting the image to Instagram, Dolezal had granted a non-exclusive license to Instagram as well, and if you've granted a license to more than one party, you can't claim one is "exclusive" any more.

Tauler also pointed out that the copyright in the image wasn't registered until a month after the article in question, and pointed out that it's almost certainly fair use for a news organization to show a social media post in a news story about that social media post. Liebowitz, in typical Liebowitz fashion, responded that "the fair use defense is borderline frivolous." No, Richard, it's not.

But, you know what is frivolous? Trying to swap plaintiffs midstream. But that's what Liebowitz tried to do.

Apparently the issue of whether or not Polaris actually had the right to sue over this image made Liebowitz realize that the case was in trouble. So he filed an "amended" complaint, but part of the "amendment" was to completely drop the plaintiff Polaris from the complaint and just swap in Dolezal as the new plaintiff. That... is not how things are done. Paper Mag's lawyer sent quite a letter to the court highlighting the many, many, many problems of such a filing:

At the December 19, 2019 pre-motion conference regarding Plaintiff’s motion to dismiss Polaris’ original Complaint (the “Polaris Complaint”), the Court granted leave to Polaris to amend its Complaint. However, Polaris did not amend its Complaint. Instead, Polaris removed itself as plaintiff and added non-party Dolezal as the Plaintiff, alleging new facts that contradict the Polaris Complaint and the representations of counsel at the December 19, 2019 pre-motion conference, namely that Dolezal, not Polaris, has standing to sue....

[....]

As Plaintiff’s counsel made clear at the December 19th hearing, “Polaris and Ms. Dolezal entered into an exclusive licensing agreement on December 15th of 2017, and pursuant to that agreement any photographs that Ms. Dolezal provides to Polaris are subject to an exclusive license. So, what that means is that Polaris has the exclusive right to distribute or display those images to third parties.” (Transcript, p. 3 (Exhibit A)). Polaris’ counsel further articulated his knowledge of the law at the December 19th hearing, stating “if we [Polaris] have an exclusive license, we have standing to sue. That’s the statute.” (Transcript, Ex. A, p. 12). Despite the foregoing, the Amended Complaint not only abandons Polaris’ theory of the case, it abandons Polaris altogether.

As Tauler points out, you can't just swap in a brand new plaintiff like that either:

First, the Dolezal Complaint runs afoul of FRCP 15 which provides that only a party may amend a pleading. Thus, Dolezal did not have the right to amend the Polaris Complaint. Second, the Dolezal Complaint violates FRCP 21 requiring leave of Court. See Spencer v. Dixon, 290 F. Supp. 531, 535 (W.D. La. 1968)(“Attempt to add additional parties fails where Amended Complaint contains no request for any order to add additional parties because Rule 21 of the Federal Rules of Civil Procedure requires that additional parties may be added or dropped from an action only on motion of any party and order of the court.”). Third, a non-party may not participate in an action without filing a formal motion to intervene. See Spangler v. Pasadena City Bd. Of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977). See Recht v. Metro Goldwyn Mayer Studio, Inc., No. CV 0806612 RGKMANX, 2008 WL 11409588, at *2 (C.D. Cal. Nov. 17, 2008)(Striking amended complaint as an improper attempt by a non-party to intervene in the action where a non-party amended a pleading.). Finally, Polaris failed to dismiss its case prior to filing the Dolezal Complaint. Dolezal should have filed a new case when Polaris dismissed itself as the sole Plaintiff.

This doesn't even get into the question of how Liebowitz claiming to represent both Polaris and Dolezal could create some conflict of interest.

Perhaps recognizing that he was about to get into serious trouble yet again, Liebowitz did one of the things he's best at: turning tail and running. He sent a petulant angry letter saying that he'll dismiss the case "in order to avoid unnecessary motion practice" but still wanting to make sure he got in the last, nonsensical word. First, he claims that despite first claiming that Polaris had sole standing to sue, he later recognized he made a mistake, and therefore decided to swap in the new plaintiff:

Defendant argues that Dolezal does not have standing to sue because Plaintiff’s counsel previously represented that Polaris is the exclusive licensee to the Photograph at issue. We respectfully aver that subsequent to the first pre-motion conference, we re-analyzed Polaris’ exclusive agreement with Dolezal in light of prevailing caselaw and determined in good faith that it was Dolezal, rather than Polaris, who has standing to sue. The issue ultimately comes down to one of contractual interpretation and the timing of when Dolezal transmitted her Photograph to Polaris. It is a complex issue, and presents a question of first impression, so we have attempted to navigate the issue based on our good faith application of the law to the facts.

Richard, Richard, Richard. It is not a particularly complex issue. You fucked up. Again.

Either way, Tauler has now announced that he's going to seek attorneys fees for Paper Magazine, and notes that he expects to "challenge" Liebowitz's silly claim that this was all "just a misunderstanding."

Either way, this is yet another "misunderstanding" to throw on Liebowitz's ever growing pile of bad lawyering. Note that this all happened just weeks after Liebowitz had to bring a family friend with him to court to tell the judge that young Richard was too inexperienced to be handling cases like this and that he'd promised to get help from more experienced lawyers. By all appearances, it does not seem that Richard has followed through on that.

Filed Under: copyright, copyright troll, exclusive license, rachel dolezal, richard liebowitz, robert tauber, social media
Companies: enttech media, paper magazine, polaris images