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OK - I've got a few minutes. We know that Judge Furman is OVER Richard Liebowitz. But let's see just exactly*how* over Liebowitz Furman really is.
For those without a scorecard, this is the judge's response to Liebowitz's request for a stay of a sanctions order. https://twitter.com/Jturk125/status/1286306140905713664
For those without a scorecard, this is the judge's response to Liebowitz's request for a stay of a sanctions order. https://twitter.com/Jturk125/status/1286306140905713664
Our first hint of how over Liebowitz the judge is comes from the docket itself.
This is a 14-page order denying a motion for stay that was filed less than 3 days ago. And the judge issued the order denying the request for the stay without waiting for a response brief.
This is a 14-page order denying a motion for stay that was filed less than 3 days ago. And the judge issued the order denying the request for the stay without waiting for a response brief.
That, in itself, signals a judge who has pretty thoroughly had it with this lawyer.
Moving on to the order:
Moving on to the order:
If the judge is referring to you as "the oft-sanctioned Plaintiff's counsel" in the first sentence of an order like this, you might need a career change.
If the judge says you "violated at least six of the Court's Orders" in the first paragraph of an order like this, you might need a career change.
If the judge says you "repeatedly lied to the Court, including under oath at a hearing" in the first paragraph of an order like this, you might need a career change.
If the judge says you lied about what a mediator gave you permission to do in the first paragraph of an order like this, you might need a career change.
And if copyright registration is a prerequisite for filing suit and you are the most prolific filer of copyright suits in the USA, failing to reasonably investigate whether the thing you are suing over has been registered is a really bad idea.
OK, that's the first paragraph handled.
Oh, dear. Oh dear oh dear oh dear.
This translates as "I don't think I stuttered in the first 54 pages I wrote, but since you look to be stupid enough to appeal, I'll take the opportunity to kick your butt farther down the hall."
This translates as "I don't think I stuttered in the first 54 pages I wrote, but since you look to be stupid enough to appeal, I'll take the opportunity to kick your butt farther down the hall."
This bit is judge for "you played stupid games and you won stupid prizes."
This is so innocent on its face. It's cow manure delivered with a sincere smile. Everyone knows that clients of Liebowitz's firm are likely to be unimpressed (to say the least) with the order, and may seek other counsel. But the 'theory' will be plausible enough for the 2nd Cir.
I'm literally laughing at this. Cackling with delight, even.
And, yeah. Hell, "Liebowitz should be disbarred" is probably the only thing all of #Copyright twitter agrees on.
And, yeah. Hell, "Liebowitz should be disbarred" is probably the only thing all of #Copyright twitter agrees on.
And @mmasnick and @Bill__Donahue get shout-outs in the footnotes, but Yours Truly remains chopped liver and is very sad about that.
I'm laughing even harder now.
"The potential harm here is not irreparable; it is only marginal" is such a nice little twist of the blade.
"The potential harm here is not irreparable; it is only marginal" is such a nice little twist of the blade.
For those keeping score, we hit the reaction gif at about page 2; this is only page 5.
The motion for stay was ill-advised.
The motion for stay was ill-advised.
I wonder if the defendants could get fees for any time they put in starting to draft a reply to the motion for stay before Judge Furman issued the ruling.
I bet they'd get those fees if they asked.
I bet they'd get those fees if they asked.
Oh my.
We're only just now getting to likelihood of success on the merits.
Which actually seems to be a section with text; I'd halfway expected to just see "There is none." as the section.
We're only just now getting to likelihood of success on the merits.
Which actually seems to be a section with text; I'd halfway expected to just see "There is none." as the section.
I'm literally laughing as I read this.
That was a big, big oopsie on the part of Liebowitz's lawyer.
That was a big, big oopsie on the part of Liebowitz's lawyer.
"One wonders if they even read the Court's Opinion and Order" is a phrase high on the list of phrases you never want the Court directing at you.
The target audience for this sentence is the 2nd Circuit.
It's a reminder that Judge Furman listened to the live testimony and concluded that Liebowitz was lying to his face.
It's a reminder that Judge Furman listened to the live testimony and concluded that Liebowitz was lying to his face.
The "particularly strong deference" language is also targeted squarely at whoever is on the current motions panel for the 2nd.
The next paragraph is just a summary of the findings on all the investigating that Liebowitz failed to do on the marginally important issue of the copyright registration.
Oh, ouch -
"If you'd admitted that you didn't do your homework instead of pretending you lost it, we could have failed you earlier"
"If you'd admitted that you didn't do your homework instead of pretending you lost it, we could have failed you earlier"
Disposing of an argument made in a footnote with a footnote is just *chef's kiss.*
But I'm afraid I'm going to have to ding the Court a couple of style points for the use of "ironically" in this paragraph.
There is an approximately 100% chance that the first draft of this used "should" instead of "could."
Also, never ever give the judge the opportunity to point out that you are the kind of rare asshole who justifies rarely-used penalties. Just don't. It ends poorly.
This is a BRUTAL footnote in every possible way.
"well-earned reputation as a problem in this District" plus all those other wonderful quotes.
"well-earned reputation as a problem in this District" plus all those other wonderful quotes.
If you were wondering, yes, "adequate to deter repetition" is the standard when deciding how/how much to sanction someone.
Shorter Judge Furman:
The extra requirements are your problem and your burden, not a burden on your clients. If you can't meet them, you're in contempt, not them.
The extra requirements are your problem and your burden, not a burden on your clients. If you can't meet them, you're in contempt, not them.
Fn 7 is also spectacularly brutal. Especially the "one would think" bit. Yes, indeed, one WOULD think that Liebowitz would eat that cost. Why? Because it would be BLATANTLY unethical for Liebowitz to NOT eat that cost.
The "this is the third time you've been hit with $100k sanctions" bit is a nice dig.
And the modification to the order will go a long way toward satisfying any concerns the 2nd Cir is likely to have.
And the modification to the order will go a long way toward satisfying any concerns the 2nd Cir is likely to have.
This sentence is the core justification for the entire sanctions order.
It's an explanation - although no court will ever put it in those terms - that the idea is not to hang the sanctions order around Liebowitz's neck like a sign in one of those pet-shaming photos.
It's an explanation - although no court will ever put it in those terms - that the idea is not to hang the sanctions order around Liebowitz's neck like a sign in one of those pet-shaming photos.
Instead, the sanctions order is there to act like the warning label on a pack of cigarettes - "Warning: If you hire this bozo, you may suffer from a laundry list of adverse consequences."
And if that hurts Liebowitz's career, too bad. It's in the public interest to warn people.
And if that hurts Liebowitz's career, too bad. It's in the public interest to warn people.
This paragraph, though, is the "aye, there's the rub" of the entire Liebowitz saga.
The truth of the matter is that the copyright system really is massively stacked against small creators. It's not fit for purpose.
But Liebowitz's practices make things worse, not better.
The truth of the matter is that the copyright system really is massively stacked against small creators. It's not fit for purpose.
But Liebowitz's practices make things worse, not better.
There are proposals - like the small claims process - to fix things. But they have disadvantages, one of which (IMO) is that even at best, they're band-aids slapped over gushing arterial bleeds. We are way, way overdue for comprehensive overhaul. But that's for another day.
This is the painful, and mic drop, end to the order.
Filing the motion for a stay at the 2nd Cir would be dumb, but it's probably less bad for Liebowitz than having to send out the copies. So I assume we'll see one in the next day, and will keep my eyes open for it.
Filing the motion for a stay at the 2nd Cir would be dumb, but it's probably less bad for Liebowitz than having to send out the copies. So I assume we'll see one in the next day, and will keep my eyes open for it.
Judge Furman ruled on the motion for stay *extremely* promptly, without waiting for opposition. But Liebowitz screwed around for so long before appealing that, as a practical matter, he better file today. https://twitter.com/NotPiffany/status/1286363680163201025?s=20
IIRC, without a stay he's going to be in contempt of this order by Monday if he hasn't fully complied.
And given his business model, if he hasn't already started to try to comply, I don't think there's a snowball's chance in hell he'll be in compliance by Monday.
And given his business model, if he hasn't already started to try to comply, I don't think there's a snowball's chance in hell he'll be in compliance by Monday.
