(Source: Wikipedia, Hans Ollermann, (CC BY-SA 2.0).)

From yesterday's decision by Judge Richard J. Sullivan (S.D.N.Y.) in Hughes v. Benjamin:

The accused Carl Benjamin, also known as the "Sargon of Akkad", filed this application for attorney's fees under 17 U.S.C. Section 505 after the court dismissed Akilah Hughes' copyright infringement suit against Benjamin and ten "John Doe" defendants. For the reasons set out below, the court approves Benjamin's application and concludes that he is entitled to a $ 38,911.89 attorney's fee and fees.

On November 18, 2016, Hughes, an internet commentator and filmmaker, released a video entitled "We thought she would win" on her YouTube channel. We thought she would win, consisted of footage of Hughes at Hillary Clinton's campaign party at the Jacob Javits Convention Center in Manhattan on November 8, 2016, the night of the 2016 presidential election. (Opinion 2) In the video, Hughes reported on the events of the Night and commented on the impact of Secretary Clinton's defeat by today's President Donald Trump.

The next day, Hughes discovered that Benjamin, a YouTuber colleague with a very conservative / libertarian tendency, had posted a video entitled SJW Levels of Awareness on one of his YouTube channels. Benjamin's video consisted exclusively of six clips from We Thought She Would Win, which were put together for one minute and fifty-eight seconds. Hughes responded by sending YouTube a "deactivation notification" under the Digital Millennium Copyright Act ("DMCA") that resulted in YouTube disabling public access to Benjamin's video. Benjamin immediately sent Hughes an email asking them to withdraw the acceptance notice. He claimed that his video was a parody or satire under the fair use exception of the copyright law. Three days later, after Hughes refused to withdraw, Benjamin YouTube sent a DMCA counter notification that SJW Levels of Awareness was "completely transformative and intended for parodies". After that, YouTube restored public access to Benjamin’s video.

On August 25, 2017 (sued, alleged) … that Benjamin has violated her We Thought She Would Win copyright by posting publicly on SJW Levels of Awareness on YouTube and Twitter. Throughout the process, Hughes prominently referred to Benjamin and the ongoing lawsuit on Twitter. For example, on December 8, 2016, Hughes tweeted that she had "a (C) Christmas on the way" for Benjamin, referring to the lawsuit. On October 28, 2018, Hughes tweeted that she "is currently suing (Benjamin's) white Supremacist ass for stealing (her) content." Two months later, Hughes described Benjamin in a tweet as a "carnival bark" and expressed the wish to convince the crowdfunding platform GoFundMe to end Benjamin's campaign to fund his legal costs for this action and to bankrupt Benjamin with a defamation lawsuit. And on February 12, 2019, Hughes replied to a tweet that he predicted that she would lose her copyright lawsuit by saying that she would "take hundreds of thousands of dollars off Benjamin".

On February 3, 2020, the Court ruled that SJW's profile is clearly covered by the fair use exception to the Copyright Act and rejected Hughes's complaint. In particular, the Court found that "a sensible observer who came across (Benjamin's video) would quickly grasp its critical purpose" "that" Benjamin's target audience (generally political conservatives and libertarians) is obviously not the same as Hughes & # 39; Audience (generally political liberals), "and that" the fair use defense is clearly based on Hughes’s complaint and a review of the videos themselves. ”

Parties in copyright cases may receive their attorney fees from the loser, but are not categorically entitled to it. Here's the judge's explanation of why Benjamin should get the fees:

Although the courts have "wide scope" for the award of fees under Section 505, this discretion should be exercised with a view to promoting the purpose of the Copyright Act: "Enriching the public through access to creative works". While this is necessarily a holistic investigation, the Supreme Court has identified several factors – known as Fogerty factors – that guide the analysis: "Frivolity, motivation, objective inappropriateness (,) and the need to consider compensation under certain circumstances and drive deterrence. "Of these factors, the objective inappropriateness of the losing party's position has the greatest" weight ". But no factor is necessarily planning. In fact, a court can award fees even if the losing party makes reasonable arguments, as long as an award would promote the goal of the Copyright Act to ensure public access to new creative works.

(1.) Objective inappropriateness

The objective inappropriateness, which should be given a "significant weight" in deciding whether to award fees, "is generally used to describe claims that have no legal or factual support." … Here, Hughes' claims were objectively unreasonable – a fact that arose from the complaint and the videos at the center of the dispute …

(2.) Improper motivation

Benjamin argues that Hughes brought this suit on to silence her political opponents and critics and generate advertising for herself. Here, the Tribunal has little difficulty in concluding that Hughes' double aim of bringing her baseless suit was to inflict financial harm on Benjamin while sharpening her own profile.

Inappropriate or malicious motivations are generally difficult to identify, as litigation can often pursue a variety of goals and disguise its low-profile allegations that sound legitimate. In this case, however, Hughes openly discussed her inappropriate motivations on both Twitter and her website. Indeed, Hughes admitted to possibly hundreds of thousands of followers that she intended to (i) bankrupt Benjamin (Doc. No. 43 under 2), (ii) stop his attempts to fund his legal expenses, and ( iii) use copyright laws to silence their political opponents and critics. Other posts, including her public bragging about the litigation on her social media accounts (which even describes her complaint as "(C) Christmas present" for Benjamin) and her celebrity-style belittling and feud with Benjamin strongly suggest this that Hughes intended this to raise the dispute in order to improve its own public profile and generate secondary financial gain. Taken together, Hughes’s public commentary shows intent to abuse the legal system to advance a personal agenda that has little to do with copyright law.

(3.) Compensation and Deterrence

Compensation and deterrence, two fair considerations that must also be judged by the courts, serve the dual purpose of motivating parties with strong litigation claims and preventing parties with weak claims from engaging in wasteful litigation.

Hughes makes a lot of the fact that Benjamin's GoFundMe campaign has raised over $ 120,000 – much more than the roughly $ 40,000 he spent on defending this case. However, this fact alone does not exclude the awarding of legal fees. Indeed, courts often allow recovery even if the ruling party has not suffered financial damage, such as in cases where a third party has provided or paid for the ruling party's legal services. Simply put, the luck of a litigant to have the financial means to defend himself against a frivolous lawsuit – whether due to insurance, a GoFundMe campaign, a wealthy uncle, or a pro bono lawyer – immunizes the underdog Party does not automatically face the consequences of their lawsuit actions.

In addition to compensation, the Court must also consider deterrence. "Fee premiums are a double-edged sword: they increase the reward for a win – but they also increase the penalty for a defeat." …. While Benjamin may not have any money out of his pocket, the awarding of fees will promote the important goal of preventing Hughes and other potential litigation from behaving in a similarly abusive manner in the future – a result that closely matches the goal of the Copyright Act Facilitating public access to creative works.

Since Hughes does not owe Benjamin any damages, the only financial consequence that the Court of Justice can impose on Hughes to prevent this behavior in the future is to pay fees. And Hughes’s self-serving claim that the public backlash she received from losing this lawsuit is a sufficient deterrent, especially since Hughes himself played a vital role in publicizing the lawsuit. It should also be noted that Hughes has never claimed that she cannot pay Benjamin's fees or that she will suffer extreme financial difficulties if asked to do so.

In short, Hughes tried to take advantage of an objectively unreasonable and frivolous suit by promoting her online profile while at the same time forcing Benjamin to waste time and resources defending an unsubstantiated action. Since the goals of the Copyright Act are more likely to be achieved through lawyer fees, the fact that Benjamin was supported by third parties through his GoFundMe campaign does not prevent Hughes from paying an award, although this is relevant. Accordingly, the Court will order Hughes to pay Benjamin's fees and costs for this lawsuit.

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