If anyone is wondering why Paper Magazine’s Instagram account disappeared, a new lawsuit helps to explain why.
In a lawsuit filed on Wednesday in California federal court, the magazine’s parent company ENTtech Media Group claims it has fallen victim to an alleged scheme by a group of photo companies allegedly weaponizing copyright claims to extract a settlement for roughly $1 million.
Two of these companies — Okularity Inc. and BackGrid USA Inc. — did not respond to requests for comment. Splash News and Picture Agency LLC declined to comment, while contact information for Xposure Photo Agency Inc. could not be located.
The suit alleges that the companies aggregated copyright infringement claims over Paper Magazine’s online posts on Instagram, then essentially inundated Instagram with large numbers of take-down notices related to those posts, which caused Instagram to temporarily shut down the magazine’s account. The social media network will not reinstate the account until the underlying copyright dispute is resolved, according to the suit.
The suit describes this as an “extortionate” strategy that manipulates copyright laws by using take-down notices to get targeted accounts disabled, which then effectively forces the account holder — in this case, Paper Magazine — to the negotiating table.
The complaint includes a July 8 e-mail to Paper Magazine executives that was apparently sent by Okularity’s chief executive officer Jon Nicolini, in which the group sought roughly $1 million from Paper Magazine to resolve its claims.
“Specifically, defendants have created software for the express purpose of disabling valuable commercial accounts on social media platforms (in this case Instagram) so that they can then demand extortionate sums (in this case over $1 million) from the account holders to have the accounts restored,” the magazine claims in the suit.
Okularity appears to be a tech company that works with purported photo agencies including BackGrid to enforce the copyright on works uploaded to their platforms. According to the ENTtech suit, Okularity does this by using a special software to search for allegedly infringing images online.
Generally, companies that believe their copyrighted photos are being used without permission online can issue take-down notices through the Digital Millennium Copyright Act, which is theoretically meant to protect copyright owners from the widespread online use of their work without permission.
But in this case, these companies have joined together to exploit the DMCA’s protections in a way that gives them leverage, ENTtech alleged in the suit, since social media companies like Instagram automatically disable accounts that have accumulated a certain number of take-down notices beyond a limit.
It is the tactic that ENTtech’s suit mainly takes issue with, rather than just the question of whether or not the photos were infringing copyrights. Usually in a copyright case, a photo agency would identify an allegedly infringing use of its photographs, legally vet those claims, and have their lawyer send a warning or demand letter to the purported offender to request they take down the photos in question, or to negotiate a resolution.
But here, the suit claims, this group’s use of software to identify large numbers of potentially infringing photos, and then directly sending notices to the social media company to shut down the account, bypasses the conventional norms of engagement in these cases and changes the dynamic. In this case, the suit claims that Paper Magazine would essentially have to negotiate from a position where its main option to get its account back would be to reach a resolution with Okularity.
ENTtech’s lawsuit seeks to counter that. The suit seeks to restore its Instagram account and to recover its legal fees, and also asks for unspecified compensatory damages for the time its Instagram account has remained shut down.
Before it was disabled, Paper’s Instagram account had more than one million followers, and was a large source of revenue for the magazine, according to the suit.
ENTtech purchased Paper from Kim Hastreiter and David Hershkovits, who cofounded it in 1984 as a downtown arts and style magazine. It’s perhaps most famous for its Break the Internet issue, featuring a half-naked Kim Kardashian West photographed by Jean-Paul Goude. The issue generated more than 70 million monthly unique visitors to Papermag.com.
As previously reported by WWD, the print magazine is on hiatus during the pandemic and ceo Tom Florio, the former longtime publisher of Vogue, is yet to decide if it will return.
With COVID-19 impacting ENTtech’s events business Paper Works (the cancellation of the South by Southwest festival alone meant it missed out on a seven-figure sum), Florio has also had to implement cost-saving measures elsewhere in the business, including companywide pay cuts ranging from 20 to 30 percent for the highest-paid employees and a 60 percent reduction for him.