Troll’s summons gone wrong

Copyright trolls are companies that obtain copyrights from many photographers and other authors, then use software to scan the Internet for infringements. Once they find a website on which the image has been posted without permission, they try to scare the operator and demand exorbitantly high sums. As all of this happens automatically, they often make mistakes and there isn’t even any infringement.

This way of working seems to pay off. Some companies are frightened into paying the excessively high costs. Others, without seeking professional advice, pick up the pen themselves, making false concessions or (even more often) failing to address the legally most important points. By doing so, they give the trolls a free pass in court.

Of course, there are also cases where there simply is infringement. It is then often appropriate to pay a fee to the author. However, the fee must be set at a correct level. A fee of thousands of euros (usually) isn’t.

In a recent judgment, the Corporate Court of Ghent, backed by the EU Court of Justice, disagrees with such practices. It is unacceptable that financial objectives take precedence over the effective protection of copyrights.

The plaintiff, Permission Machine BV, uses automated search engines to search for infringements of its clients’ copyrights. It then systematically sends a license offer to the (alleged) infringers. The payment of a license fee is clearly the goal, while the actual cessation of the infringement seems unimportant.

For example, in 2019, the Defendant, Kortom VZW (a non-profit organization), received a communication from Permission Machine: Kortom had used 3 photos in its newsletter on government communications, without permission. Permission Machine put the npo in default. As an accomplished copyright troll, of course, it also offers a license for no less than 848.00 euros.

Kortom’s newsletter is always removed after a month. When Permission Machine asks for 848.00 euro in license fees, the images have already been removed from the website. Kortom refuses to pay the amounts. After sending several reminders, Permission Machine sues the ngo in summary proceedings in March 2021. Permission Machine demands that the alleged copyright infringements cease and that Kortom pays the costs of the proceedings (1,440.00 euros). Such a verdict will then be used to scare future victims.

The judge, however, disagrees with Permission Machine’s way of working. He refers to recent case law of the European Court of Justice. The Court was asked whether a company such as Permission Machine can rely on all the instruments of enforcement that authors themselves can rely on. For example: a claim to stop copyright infringement. To this the Court answered with a very expansive “yes, but”. This because the general right to use these instruments is limited in the case of abuse.

A person who holds a copyright, but does not exploit it himself and only claims damages based on this right, can only use the instruments and procedures if it is judged that this does not constitute abuse. It is up to the national courts to determine whether there is abuse, but the Court provides a number of example circumstances.

Specifically, it is suggested that a judge look at the method of operation and the objectives. A modus operandi where the focus is always on financial compensation and not on actually stopping infringement may indicate abuse.

Therefore, the Corporate Court of Ghent now decided that Permission Machine is indeed abusing the cessation tool. The purpose is financial gain and not the effective protection of copyrights. The judge deduced this from the following elements:

• The cessation of infringement is not a priority in the communication to Kortom, where Permission Machine demands the payment of a fee. It even mentions that removal will not suffice to escape payment of the fee.
• Permission Machine makes no effort to prove that the images are indeed copyrighted and that the protection of these rights is entrusted to them.
• The requested fees seem arbitrarily determined. They are then compounded with unproven costs.
• There was a long period of time between the demands for payment and the final claim for cessation. This makes it appear that this claim is intended more as a punishment for non-payment than as a measure of actual copyright protection and cessation of infringement.
• The claim was filed unannounced.
• The damage from the use of the images is very limited. The newsletter is temporarily online. The website has a limited audience.

It is clear to the judge that the instrument of claim to cessation is misused in this case. Accordingly, the claim is judged unfounded.

The European and Ghent rulings undoubtedly have consequences for the practices of copyright trolls in Belgium. Threatening a summons and claiming damages to force a payment will become a less effective means of pressure. Of course, it remains important to respond appropriately to the communications of these shrewd creatures companies.

The image in the header is part of a work by John Bauer. John Bauer died in 1918, so his work is in the public domain.

Written by Barbara Verstraeten & Thierry Van Ransbeeck