Pool World and The National Law Review, two small business that successfully resisted extortionate copyright infringement claims filed by Prepared Food Photos (“PFP”), a notorious copyright troll whose depredations I have discussed here several times, moved in the Seventh Circuit for leave to file an amicus brief supporting an appeal by the only PFP victim who has actually gone to trial on one of PFP’s copyright infringement lawsuits.
The victim’s lawyer secured a dismissal of PFP’s claims against the store’s owner personally, while persuading a Wisconsin jury that the actual damages from the alleged infringement were only $200, not the hundred thousand dollars that PFP was demanding. The trial judge in the case avoided addressing the cross-motions for attorney fees filed by the winning individual defendant and PFP by holding that he had discretion to decided that there was no prevailing party in the case and hence neither side qualified to be considered for an award of attorney fees. Pool World and National Law Review draw on their experiences (discussed here in the posts linked from their names) fending off suit by PFP or by a PFP sock puppet called Rockefeller Photos.
The store owner’s appellate brief argues that the law making him a prevailing party is so clear that the judge had no discretion to deny him an award of fees. Our amicus brief does not address that argument, but argues that because the Seventh Circuit has had a number of decisions deploring the baleful impact of copyright trolls on the policies of the copyright act, and because PFP is so plainly a copyright troll, the trial judge abused his discretion by not addressing the defendants’ contention that PFP is a copyright troll and then deciding, in light of that fact, whether that status impelled a holding that the store owner was a prevailing party. The amicus brief devotes considerable attention to undisputed facts in the record of the Pool World case that show how closely PFP fits the Seventh Circuit’s definition of the term “copyright troll.”
Because PFP has cross-appealed the denial of its motion for an award fees against the store, as well as appealing several other interlocutory rulings on motions, our amicus brief also suggests that the court of appeals should consider PFP’s status as a copyright troll in assessing PFP’s arguments that the trial court abused its discretion in those rulings.
I am grateful to Phil Malone of the Stanford Law School IP Clinic for his collaboration on the amicus brief. Griffin Klema, a solo practitioner in Florida, represents the infringement defendants.
