Speech still free for bloggers

Though in most cases, litigation isn’t. The decision, reported by Eric Goldman, is not remarkable. Unfortunately, neither is the fact that under the American Rule, there is for all practical purposes no downside to suing someone on the most preposterous of grounds and losing — hence making the bringing of meritless litigation a part of every large company’s toolkit for silencing criticism and destroying smaller competitors. As Eric says:

Meanwhile, I’m not clear what, if any, of Smith’s counterclaims are still outstanding. Perhaps Smith will get some additional remedy beyond the moral vindication and $1,000 in sanctions. But even if he does, there really is no way to correct the fact that the plaintiff consumed the last year and a half of Smith’s life, forcing him to defend a lawsuit that was ridiculous and ill-conceived from the outset. (The court declined to award Rule 11 sanctions, saying it was a close call).

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

2 thoughts on “Speech still free for bloggers”
  1. I am a photographer and I have for the past 15 months or so been submitting all new images I create to the copyright office for registration. I talk to a lot of other photographers about copyright infringements and a question I often ask is if they are registering their work. So far I seem to be the only one I know doing this. The other photographers often state that while they could register their work which would make filing against another party for infringement more successful they argue that the cost for doing that would be too high. That is how it ties to this (albeit loosely).

    I thought that in copyright infringement cases, attorney fees would be recoverable if an infringement could be proven. If that is the case, is there a downside for protecting ones copyright in court? As a plaintiff would I be have out of pocket expenses to my attorney until the case was settled or ruled? Certainly this is all hypothetical and would make your input the same, but I am interested in knowing your thoughts on this.

    btw: I just stumbled upon this blog and I have to say it looks to have a lot of great, heady stuff.

  2. Hi, Mark. Thanks for your kind words. If you just stumbled on this blog, you have a lot of catching up to do! I hope you continue to like what you see.

    One approach commercial photographers use to reduce the costs of copyright registration is filing them in bulk. That’s discussed in a lot of places; here’s one. It’s of critical importance for professional photographers to register their works — certainly the ones that are going to be published — because if they don’t, they will lose any shot at statutory damages and attorneys’ fees.

    I am not sure I understand your question, but I think you’re asking me whether there is a risk that the owner of a work who has registered the copyright for that work could pay a lawyer to prosecute an infringement claim yet end up not getting an attorney’s fees award. Yes, it is possible; the award of attorneys’ fees for a successful infringement claim is common, but not automatic, and the standards by which these choices are made are unfortunately very unpredictable. It is also possible, of course, for the owner to lose the case!

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