At PissedConsumer, we get a lot of flak from companies that want to take down negative reviews, and they get very creative about it. Most half-decent lawyers know that a straight up defamation claim will not get past 47 U.S.C. § 230. But, most also know that Section 230 does not stop a copyright claim. Therefore, some lawyers think they can get creative and misuse copyright. This is a form of copyright trolling, and the last company that tried to go after Randazza’s clients in a copyright trolling operation did not find it was to their benefit.
“Using copyright to try and take down information that you don’t like doesn’t usually work,” said Marc Randazza. “In the Righthaven case, the court awarded a lot of attorneys’ fees and, in part, threw out the case because it was clearly fair use. Fair use matters, and consumer reviews that use a small bit of the party’s work (like a thumbnail from a website) is fair use.”
Sometimes, would-be censors will try and use a DMCA takedown notice to remove content from PissedConsumer. This rarely works, since we usually receive a counter-notification and put the information back up. Also, if someone mis-uses the DMCA, they can get sued by us under 17 U.S.C. § 512(f). Not only can they get sued, but we have sued over that. The recent case, Lenz v. Universal, shows that even a big music publishing company can get sued for mis-using the DMCA takedown procedure. Do you think that your company won’t get sued by us?
“I love 512(f) cases,” said Randazza. “I think that 512(f) is there for a reason, and part of it is protecting fair use and legitimate free speech from DMCA demands that have no basis in law or fact.”
Another form of copyright abuse is “copyright trolling.” That is a term that gets thrown around a lot, usually by people who simply hate copyright. At Pissedconsumer, we are not anti-copyright, but we also don’t think that copyrights should be used to try and make money off of people, rather than to enforce legitimate rights. “I’ve been on both sides of mass-copyright litigation,” said Randazza. “I have had clients who wanted me to do them, and I did them, because it was my duty, but I prefer defending these cases.” Nevertheless, Randazza said that there is a difference between styles of mass-copyright litigation. “I would only do one of those cases for a plaintiff, if the plaintiff was legitimately protecting their income from mass theft.” In talking about that, he drew a sharp line contrasting a real copyright suit and the Righthaven scheme. “I was proud to have been part of ending the Righthaven reign of terror,” he said.