Copyright Troll Richard Liebowitz Helps Protect Free Speech & Fair Use By Losing Yet Another Case

Richard Liebowitz is infamous as the notoriously inept copyright troll lawyer. He's so bad at his job that he's been sanctioned repeatedly, and recently was suspended from practicing law in the Southern District of NY (his home court). The details of him lying under oath over and over again are simply staggering.

However, you have to give Richard Liebowitz credit for one thing: he's so bad at copyright trolling, that he's set some useful precedents. We wrote about one such case a year and a half ago, where Liebowitz's greed in turning down a settlement offer ended up costing his client a ton.

Now, lawyer Dan Booth (who has gone up against Liebowitz in a variety of cases) points us to another loss by Liebowitz that is actually a win for everyone (and if you're wondering, this ruling (in Arizona) came out before he was suspended in NY. But the ruling is important in highlighting how fair use can protect bloggers who repost articles from elsewhere.

The case was brought by Daniel Fellner, a photographer and journalist, against "Travel 4 All Seasons LLC" which is actually just a hobby website run by Alfred Hague, who admits he's never made any money from the site. While nearly all of the hundreds of Liebowitz trolling lawsuits are filed over photographs, this one was over the fact that Hague reposted part of an article that Fellner had written about.... Pickleball on cruise ships (I don't know what this is, and I don't think I want to know).

Some people like to insist that an article can't possibly be fair use. But that's wrong. A decade ago, in the midst of another highly publicized copyright troll, Righthaven, a court also found that reposting a full article can be fair use (incredibly, in a case where the defendant hadn't initially even raised fair use as a defense!). In this case, while Liebowtiz claimed that Hague reposted Fellner's entire article, the actual evidence suggested that wasn't even true.

And, again, in this case, the judge found that Hague's reposting of Fellner's pickleball article was absolutely fair use. First, of course, the court does the obligatory highlighting of Liebowitz's highly sanctioned record ("Mr. Liebowitz has filed hundreds of similar actions in federal courts throughout the country and has repeatedly been cited for misconduct in this District and in many other federal courts throughout the United States."), highlights his poor lawyering in this case ("During the course of discovery, it appears that Plaintiff requested hardly any discovery, and he did not depose Defendant or its principal, Alfred Hague"), his obvious cut-and-paste from other filings laziness ("Ironically, the vast majority of Plaintiff’s Response appears to have been copied and pasted from other briefs by Mr. Liebowitz, as the Response almost exclusively discusses the theft of photographs, not written text, and most of the law cited is from out of Circuit."), and a final "that's not how you evidence" smackdown:

As an initial matter, Defendant argues that Plaintiff has failed to proffer any admissible evidence to dispute the facts established in the Motion. Plaintiff provided a Declaration of Mr. Liebowitz, unverified interrogatory responses, and copies of the Article. (Doc. 35). Defendant argues that of the evidence provided, only a single statement can be supported with personal knowledge by Mr. Liebowitz, that he is “lead counsel for Plaintiff Daniel Fellner.” (Doc. 35-1). The Court agrees. Plaintiff submitted no authenticated documents, declarations, or admissible evidence of any kind to establish that there are material fact disputes. Under Rule 56(e), if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion. As Plaintiff did not provide any admissible evidence to dispute any facts established by Defendant, the Court determines that there are no material facts in dispute.

Anyway, from there, we get a four factors fair use analysis, and it doesn't go well for Fellner or Liebowitz. Though i