There’s a line between a legitimate copyright infringement lawsuit and a bunch of mostly-ineffective claims masquerading as a legal filing. Photographer Dennis Flaherty has crossed that line.
A photographer is suing a beverage company which allegedly used without permission one of his photographs on social media. The case is interesting, as the photographer chose to sue not only the company and its employees and contractors, but also the social media users who republished the photograph on social media, by a retweet, or a pin.
North American Bottling — namely its Big Red Soda product — allegedly used Flaherty’s photograph of the Alamo in some social media marketing.
The original can be seen here. (Well, probably not the original, what with this one’s prominent watermark/compression artifacts.)
And here’s one of Big Red’s post:
Suing Big Red makes sense. Suing the people who retweeted or reposted Big Red’s tweet/post does not. For one thing, it’s just bad form. Suing for contributory infringement is the sort of thing best left to companies like record labels and other bottom feeders of the legal system. Individuals shouldn’t willingly associate with the worst purveyors of infringement lawsuits.
Beyond that, it rarely works, so you’re just expending extra billable hours chasing down people who performed no direct infringement. I would say roughly nobody ever would have looked at Big Red’s post and thought, “I bet the company didn’t license that photo.” People expect companies to have their IP shit together, and those clicking retweet/share aren’t really going to be examining the accompanying photograph’s chain of custody before doing so. Only the person whose IP is being infringed will do that. Just because that person has a deep personal/monetary connection to the work in question doesn’t mean the rest of the internet owes the creator due diligence. Or damages.
But somehow Flaherty believes (or hopes) these members of the public do owe creators that courtesy every time a brand tweets out a photo. His lawsuit first targets employees of Big Red…
Defendants are contributorily liable because they knew of or should have known of their possession of infringing material and failed to purge such material from their possession.
Defendants infringed contributorily by knowingly taking steps that were substantially certain to result in the infringement of the Photograph.
Defendants intentionally uploaded, pinned, shared, reproduced, copied, distributed etc. the Work to various third parties (“Shared Work”), or their computer servers, including the server(s) of Twitter Inc. (“Twitter”) and Facebook, Inc. (“Facebook”), or their end users.
…but it goes on to drag end users into this mess.
On information and belief, the Shared Work has been “re-tweeted”, “shared”, etc. by at least one third party resulting in direct infringement by that third party.
As a direct and proximate result of the Defendants contributory infringement, Plaintiff has suffered injuries and damages and is entitled to its actual damages and Defendants’ gross revenue or profits, direct or indirect, derived by Defendants that are attributable to Defendants’ direct infringement of the Photograph, pursuant to 17 U.S.C. § 504(b).
If there’s any doubt that Flaherty is dragging a Twitter user into his lawsuit, it’s spelled out precisely in the opening breakdown of the listed defendants:
On information and belief, one or more Defendants are the registrants, owners, operators, and/or end users of the websites, blogs, domains, and/or social media accounts related thereto
So, the “Does 1-5” named in the lawsuit not only include the Big Red employee(s) involved in posting the photo, but also those who retweeted it. The latter most certainly is not “direct” infringement. It’s not even “contributory.” The naming of Big Red employees is nothing more than an attempt to levy increased damages above and beyond what Flaherty could hold a single entity (Big Red itself) responsible for.
This is clearly bogus, but it does point towards something that might become more common if a much-discussed idea ever becomes a reality. Marie-Andress Weiss of the 1709 blog speculates on the possibility of more end users being held liable for unknowingly retweeting/sharing infringing material.
But this case got me thinking about copyright small claims courts. If such courts are ever established in the United States, would copyright owners sue social media users who had republished infringing material? Let’s say that social media users would ‘only’ face, for instance, a $50 fee awarded in a small claim court for having retweeted or pinned infringing material. Granted, only people posting under their real name could effectively be sued. But Facebook has a “use only your own name” policy, which is enforced, and many Pinterest or Twitter users post under their real name as a way to promote themselves and to build relationships and contacts. Fearing that retweeting a particular tweet may or may not lead to a fee would certainly have a chilling effect on speech, especially if the fees start to add up.
If a small claims court for IP issues ever does become a reality, it will also become a venue for speculative invoicing. As Weiss points out, bringing small claims suits against hundreds of Does will be futile. You can’t collect from what you can’t serve. But the millions of people who can be positively identified could be held “responsible” for unknowingly spreading infringing material. Mass lawsuits seek huge payoffs, but are seldom successful. The few “hits” scored pay for the hundreds of misses. But lowering the bar to entry will make this an attractive option for entities like Rightscorp, which only asks for $20/per infringement, but will certainly use this system to seek more from users whose information it has already obtained from ISPs. With less to prove and even less at stake, shakedowns will increase as default judgments become the most likely outcome.