Is “Copyright Troll” A Thing Now?

Oct 28, 2017

JP Danko

JP Danko is a commercial photographer based in Toronto, Canada. JP can change a lens mid-rappel, swap a memory card while treading water, or use a camel as a light stand. To see more of his work please visit his studio website blurMEDIAphotography, or follow him on Twitter, 500px, Google Plus or YouTube. JP’s photography is available for licensing at Stocksy United.

Is “Copyright Troll” A Thing Now?

Oct 28, 2017

JP Danko

JP Danko is a commercial photographer based in Toronto, Canada. JP can change a lens mid-rappel, swap a memory card while treading water, or use a camel as a light stand. To see more of his work please visit his studio website blurMEDIAphotography, or follow him on Twitter, 500px, Google Plus or YouTube. JP’s photography is available for licensing at Stocksy United.

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Free Steal Me - Is Copyright Troll A Thing Now?

We recently published the account of Internet “entrepreneur” Dan DaSilva who was successfully sued for $27,000 (plus $10,000 in court fees) by a photographer over copyright infringement (click here for the original article: Internet “Entrepreneur” Shocked that Copyright Owner Sued Him for Stealing their Work).

While most were quick to jump on Dan in a pretty negative group pile-on, one of the more interesting allegations that Dan makes is that he is really the victim of copyright trolling.

In this article, we will look at what exactly a copyright troll might be and why the internet might have been a little overzealous in it’s condemnation of Dan DaSilva.

If It’s Online It’s Free

First of all, I think that we can all agree that Dan doesn’t come across very well in his video “I WAS SUED CAUSE OF SHOPIFY STORE”.

However, if you can resist hitting the comment button for just a second and listen to what he’s really saying – he’s saying that a photographer copyrighted their images, then made them available for use online, then sues people for using them – as a business.

Dan also suggests that his lawsuit is public record, so if you want to find out who sued him you can Google it – so that is what I did – and that’s where you start to get the real story.

https://www.youtube.com/watch?v=UBNGY2ZgMro

What Is A Copyright Troll?

Essentially, a copyright troll would be similar to a patent troll – someone whose business model is creating copyrighted creative content, making that content available online, and then filing lawsuits when it is used without permission.

What Dan doesn’t explain is that the photographer who sued him (according to the sources I could find online which may not be reliable) allegedly puts his work online in places where it is likely to be found and used commercially.

In other words, this photographer isn’t just uploading his work to his own website and posting to social media – he is intentionally uploading his work in ways that encourage infringement.

For example, one of the allegations is that the photographer who’s images Dan was sued over makes his work available under a Creative Commons ShareAlike license.

Under CC BY-SA 3.0 image users are free to:

Creative Commons License

However, what many users miss the terms of the Creative Commons license:

Creative Commons License Terms

Knowing that many users will not give appropriate credit, link to the license and indicate changes made, copyright trolls are counting on users who are technically in violation of the terms of the license and open to a lawsuit.

I personally have difficulty believing that someone could be successfully sued over this level of technicality – but the goal of a copyright troll is not winning a lawsuit – it’s reaching a settlement (knowing that it is less expensive to settle than to defend yourself in court).

I think that it is important to note that the images we’re talking about are not exactly portfolio material either – they’re mostly super generic photos of food, credit cards, financial charts etc., exactly the kind of image a designer might need to fill a hole and decide to grab from Creative Commons because they’re so bad nobody could justify spending money on them.

Another allegation is that this photographer intentionally uploads images to overseas websites that distribute copyright material.

There are millions of overseas calendar, background and news sites that scrape content and then re-distribute it. Once an image is caught up in this whirlpool, the original ownership, and copyright terms are lost.

An unsuspecting user comes across an unattributed image of a bunch of scrabble tiles spelling out the word “commerce” and (unwisely it turns out) uses it.

Then the photographer uses a reverse image search to find the image and sues the user for copyright infringement.

Free Steal Me - Is Copyright Troll A Thing Now?

Protecting Copyright vs Copyright Trolling

I personally have mixed feelings about this.

I think that it is important for creative industry professionals to aggressively pursue copyright infringement – and for cash not credit or apologies.

I use a service called Pixsy to pursue monetary payment for copyright infringement (for more information see the article: I Just Make $2500 from A Single Copyright Infringement).

For whatever reason, people just cannot resist using this image without permission, and it is surprisingly profitable to pursue infringement cases.

Free Steal Me - Is Copyright Troll A Thing Now?

In fact, I just filed five new copyright infringement cases with Pixsy this morning – even if I still have some reservations about the ethics involved (see Is It Ethical To Sue Over Copyright Infringement) I still believe that I am entitled to monetary compensation for the use of my work, so I am going to pursue compensation as aggressively as I can.

There is no DMCA takedown notice or cease and desist warning sent to the infringing party – once you’re caught using my work for commercial use the case goes straight to a demand for payment, and if necessary, legal action.

However, the difference between pursuing copyright claims and copyright trolling is the intent.

I totally agree that it can be very profitable to sue over copyright infringement. I’ll go even further and say that it’s good for the industry.

But I am not publishing crappy images of bananas on white and hands with flow charts and intentionally uploading them to Creative Commons and sketchy overseas content scrapers with the intention of sitting back and suing unsuspecting users – like a troll jumping out from under a bridge if you will.

How To Avoid Copyright Infringement

If you really want to avoid copyright infringement, there are three ways:

  1. Open your website somewhere that copyright law doesn’t apply – Russia seems to be a popular choice.
  2. Only publish your own work.
  3. Only publish work that you’ve paid to use.

If you don’t want to run a Russian website and don’t have much of your own work to use – stock photography is not exactly expensive.

Most images on Adobe Stock are just a few dollars and even if you really want unique premium content, a boutique agency like Stocksy only charges $15 for a small which will be more than adequate for most web use.

Was Dan DaSilva The Victim of A Copyright Troll?

Do you believe in copyright trolls?

Was Dan DaSilva the victim of a malicious photographer, or did he just get caught taking something that wasn’t his?

Do you think that it is a viable business model to publish work with the intent of suing people for using it without permission?

Do you think I’m a copyright troll? Are you?

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JP Danko

JP Danko

JP Danko is a commercial photographer based in Toronto, Canada. JP can change a lens mid-rappel, swap a memory card while treading water, or use a camel as a light stand. To see more of his work please visit his studio website blurMEDIAphotography, or follow him on Twitter, 500px, Google Plus or YouTube. JP’s photography is available for licensing at Stocksy United.

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17 responses to “Is “Copyright Troll” A Thing Now?”

  1. Pierre Lagarde Avatar
    Pierre Lagarde

    CC BY-SA 3.0 is not that clear, we agree. The problem to me is more here to know intentions on both parts. However, you can’t argue before court without proving. And the license is an evidence. Maybe this guy should have simply warn people about taking more care of the license and where they get their image from before primarily trying to show himself as a victim. The message would have looked more credible and helpful, I think.
    Anyway, thanks to point out these behaviors, and give a different and more neutral point of vue. This is useful.

  2. chickenart Avatar
    chickenart

    Are you “worried” that you might be infringing? Want to use some photos on your blog or website or to sell on t-shirts? Here’s a guideline for anyone to follow: if it’s not yours, don’t use it. Either make your own, or *find out* who owns a photo and then pay them for permission to use it. It’s really not that difficult or tortured a decision.

  3. Motti Bembaron Avatar
    Motti Bembaron

    First of all, the original article is as subjective as an article can ever be. So, I cannot automatically agree with it like most. More info is required to make any judgment.

    You are talking of intent and you happily declare that you “made $2,500 on one copyright infringement”, believe it or not, that opens the door to a flood of professional trolls who will happily collude with photographers with the intent to sue unsuspecting people. And ‘UNSUSPECTING is the key word.

    Although many large corporations will show complete disrespect for other work -and should pay for that-, many users of copyright images are private people or, like most of us, a one man operation, their monetary benefit is negligible.

    It seems that in the US copyright standard are low, meaning courts almost automatically go with the copy right owner and reward regardless of what the damages were. As mention in the comments of the original article, Texas is leading the way.

    Software trolls are well known in the US with law suits in the hundreds of millions. Look at other parts of the world and those trolls practically don’t exist. Why? Because generally, courts will not tolerate malicious intents. They will not support people who make a living suing others.

    For example, copy right standards in Germany are much higher, meaning the owner has to prove damages and what not. The court does not make it easy to just sue people.

    I am sure we all do not want others to use our work without our permission but each case is different. If a company used my image for commercial gains then sure, they should pay me for that. However, I will probably will not go after individuals with the intent to have them pay. In most cases a removal request would suffice.

  4. Renato Murakami Avatar
    Renato Murakami

    I think the term is being appropriated incorrectly.

    Patent trolls are companies that explicitly purchase patents from other companies that are usually broken, closing down, or having financial problems, and their sole purpose is finding successful businesses and products that might be using something similar to sue and whatnot. And usually, these are patents with very generic broad terms that coincides somewhat with whatever is being used, equates to a claim of “first!”, so… trolls. They didn’t work in whatever was developed, and will often sue based only on the content of the patent. They find the optimal opportunities that will make the lawsuit stretch long enough and will be costly enough for the businesses to cave in and settle.

    This is obviously different from this case, even if the photographer is somewhat baiting people who don’t know better – which there is no real proof of. And by the way, ignorance is not an excuse. Dan is speculating a whole ton of stuff, and of course he’d go for blaming the victim. I’d advise him to be very careful with his claims or else he might end up with a defamation lawsuit in his hands added to the copyright violation.

    It’s a situation where you are actively profiting off of someone’s else work without compensation or even recognition. You can make all the excuses you want, this is a fact.

    Hiring a team of lawyers specialized in finding infringement is no different from what any other businesses do to protect their own patents, copyrights and trademarks. Photographers know full well that it’s a whole other work to find out if people are misappropriating their work in the Internet. A photographer alone can’t handle it himself without sacrificing time he/she should be taking photos and doing his/her job. So usually, if you really want to protect your work, a 3rd party ends up being involved. A whole lot of photographers do the same, this isn’t a practice exclusive to “copyright trolls” and whatnot.
    It’s just that big businesses usually have their own internal team to do so, something not many photographers can afford.

    I don’t mean to be harsh on the guy, but in the end intent of the victim here doesn’t really matter. If you are going to use photos, the labor of someone else, that is copyrighted and not yours by nature, to sell stuff – even if it has a license that seems to be somewhat liberal in what it allows -, you should ask permission first. If CC is not clear enough for you, avoid works with the license. Once you got direct permission, whatever the license on the photo is gets superseded by the agreement and should work to absolve whatever violation claim.

    Standard practice from responsible bloggers, YouTubers and whatnot : doesn’t matter the license, even if it was put in public domain, if there’s a way to get in contact with author (still living, etc), you do. Or just use original material – that is, for commercial purposes.

    It should be a given. You don’t go around taking the product of labor of others, appropriating it as your own, and then using it to sell your own products – it’s just the same for photos.

    I’m very sorry if Dan had to pay a so called “copyright troll” for it because of not knowing any better, but ultimately if you are using photos that are not yours, you cannot complain about having to at the very least make your research to find out where the image came from, and then explaining what you would want to do with it. This isn’t even a matter of legality, it’s a matter of ethics.

    Was the whole thing unfair? That I can’t say. We’re hearing one side of the story here, with very little detail. I don’t even know what product Dan is talking about, he doesn’t share details of the case, and we can’t see what was the object of complaint – which only makes the whole thing even more suspicious.
    But perhaps the author was using underhanded tactics to bait ignorant people. It doesn’t change the fact that it’s ignorant people who are falling for it though. And again, ignorance is no excuse.

    But you know, I had to do some videos in the past for which I used music that was listed and presented as CC. It wasn’t even for commercial purposes, but I still got in contact with labels and artists for it. Those who didn’t reply, I just discarded the music and got something else. And there were some instances I used short clips of the music and assumed the risk, knowing there was a risk and all.

    This goes outside this particular case, but just so people know, if you have any intention of using music, photos, images and whatnot, try as best as you can to get direct permission. I’ve heard of cases of works of people getting listed on royalty free and CC websites that they never agreed upon. This would be a sort of bait, but it still does not justify. The author has no responsibility, the website that appropriated the work and listed it with the wrong license does.

  5. Karen Padilla Avatar
    Karen Padilla

    My motto is “You can’t trust anyone these days”. Everyone is out to make a buck even if it is dishonest. If you knowingly steal someone else’s work, you are a thief. Nobody like to read the fine print so if they don’t, they end up on the wrong end of a lawsuit. If the person who put that photo online knowing that someone would do just that and he could rake in the money – well, what can you say other than he’s the bigger thief.

  6. ext237 Avatar
    ext237

    I ONLY publish to social media and my portfolio, yet somehow my images still show up on russian stock and “calendar image of the day” sites. They even show up as background images as backdrops on youtube videos. So where any infringer FOUND my images isn’t important.

    Someone using an image they didn’t pay for needs to pay up. Its a ridiculous concept to say the guy was the victim of a “troll”.

    Someone steals my wallet. They take the cash and toss the rest. Another guy finds my credit cards and gets arrested on a shoppy spree. Am I now a credit card troll?

    If I leave my door unlocked overnight and wake up to some guy in my kitchen wearing my bathrobe drinking my keurig, am a rent troll?

    The entire thing is absurd. If it doesn’t belong to you, don’t use it. If you use it and you are caught, you may have to pay or have your video taken down. He is *not* a victim here.

    1. Sean Avatar
      Sean

      All those examples are ludicrous. First, if you INTENTIALLY left your wallet somewhere you know it would be stolen with the intent of getting someone arrested then yes you are a credit card troll.

      If you leave you door open with the INTENT of someone entering and wearing your bathroom and drinking coffee and then charging them rent (more likely having them arrested) then yes, you are a troll.

      You are missing the KEY ingredient in your anologies…INTENT.

      1. ext237 Avatar
        ext237

        The only intent of interest is the intention to steal. It is not trolling if a police task force leaves a bait car with the keys in the ignition. If someone gets in a car that does not belong to them, sleeps in a house that doesn’t belong to them, takes a wallet that doesn’t belong to them — or an image — that’s theft. The thief is not a victim, irrespective of “intent” by either party.

        1. Sean Avatar
          Sean

          You car bait again does not fit. Leaving the keys in the car is not an invitation to steal it (though some thieves would disagree..lol). Now if the cops put a sign on the car that said “Free to use under Creative Commons fair car usage.” and in small print on back of sign (“only if you agree to ask the owner first”) on it and then arrested the perp for taking it for a spin, that would be a more accurate analogy. It’s call entrapment.

          Again, I put most of the blame on the guy who got sued. He should have read the license more carefully and was so cheap that he could not afford $5-10 for a stock image, but the photographer did go out of his way to entice people with the “candy’. It’s the losers fault for falling for it.

          1. ext237 Avatar
            ext237

            Again, you are assigning blame on someone for being robbed. The thief is not a victim. It’s a ridiculous mentality to say the photographer deserved to have his work stolen because he posted it online.

            Then again when a female jogger is raped, she’s asked “what were you wearing”. So justifying perpetrators of even the most horrific crimes is acceptable among those who want to depict criminals as the victims.

            If you take an image that doesn’t belong to you, or car, or wallet, or phone, or photo — you are a criminal, period. Stop trying to justify crime.

          2. Sean Avatar
            Sean

            Again, you are totally missing the point. I am not condoning the theft, but is it theft if the owner of the thing being stolen entices you to take it by providing misleading or confusing information? That is the very definition of entrapment. It’s a gray area. As i said, simply leaving the keys in the car is not enticement to commit a crime. Putting the keys on a hook outside the car with a sign that says free to take is entrapment as you are enticing the person to commit a crime (albeit unknowingly). Thus, the use of the image in question by giving it a CC license but with obscure conditions that might not even hold up in court, could be considered entrapment (though only government officials can legally be accused of entrapment). There is a subtle difference and there is case law to back it up.

          3. ext237 Avatar
            ext237

            I’m not missing your point at all. CC License is not a license to steal, nor is the CC license entrapment. If you take it and it doesn’t belong to you, it’s theft. You want theft to be a gray area, where the person experiencing loss is a perpetrator, and the thief is a victim if they receive any consequences for their actions.

            Maybe if you forget your wallet in Starbucks and its not there when you return to retrieve it, you may still consider the person who took it as “the victim” of your entrapment?

          4. Sean Avatar
            Sean

            I guess you are not seeing what I was getting at. I was simply pointing out the flaws in your analogies in relation to the topic of copyright trolling. Nothing to do with condoning theft which is where you seem to think I was going.

  7. Erik Sherman Avatar
    Erik Sherman

    The commentary seems significantly flawed on an important point. The specific Creative Commons license only allows commercial use if someone has remixed, transformed, or built upon the work, and then only if the new work is distributed with the same license. If the image was used straight, or even with something minor like some cropping, then I don’t see how the license would cover the use.

  8. Randall Hall Avatar
    Randall Hall

    Dan is a moron. “I should have known better” but then he goes off on being the victim. He is only a victim of his own stupidity and nothing else.

  9. Jolie Avatar
    Jolie

    There are FAR too many sources for(often cheap if not totally FREE) legitimate commercial use allowed graphics and images these days for me to have any sympathy for people who swipe images to sell on products without permission and then get busted for it. I’m an artist, disabled and currently relying on art and merch sales for income. It’s immensely damaging for me to have some ass-hat selling my art on $2 tees on a Chinese rip-off site or offering to counterfeit my work for pennies on the dollar for other people to sell. This garbage takes me away from making more art or merch. It stresses me out to the point of making me very ill at times. So, copyright “trolling” or protection matters not a whit. Maybe if enough people get sued, more thieves will finally get the idea that making money off of things that aren’t yours is kind of a dick move and comes with consequences.

  10. Aaron M. Avatar
    Aaron M.

    Remind me again why Pablo Picasso warned us that “Is there anything more dangerous than a sympathetic understanding?” Look like Mr. Dasilva learned the hard way just because its online doesn’t make 100% free. If he did his homework beforehand, I doubt we have a conversation right now. Let’s see this as another example of why you and I should never assume anything!

    https://youtu.be/Nl_O2oP0ISU