Copyright trolling is the new patent trolling. While patent trolls make news headlines, copyright trolls receive little attention, despite their growing numbers.
On Friday, February 26, Professor Matthew Sag from the Loyola University Chicago School of Law visited the Iowa College of Law to discuss the rise of copyright trolling and its implications for the court system.
What is copyright trolling?
In general, a ‘trolling’ plaintiff is more interested in the business of litigation than in securing their intellectual property. Copyright trolls, as Sag explained, target multiple John Doe defendants, alleging copyright infringement through the file-sharing software BitTorrent. Copyright trolls execute ‘BitTorrent swarms’ to obtain IP addresses of alleged participants in file sharing. IP addresses, however, do not necessarily reveal the actual owner of an account.
The classic business model of copyright troll plaintiffs depended on suing as many alleged infringers in a single lawsuit as possible, naming them all simply as “John Doe.” This approach kept costs low and allowed the plaintiff to reach the discovery phase.
Once in discovery, the plaintiffs could take advantage of court ordered discovery to obtain the account information of the users (names and addresses of individuals) behind the IP addresses. Defendants, once identified, were contacted by the plaintiff and encouraged to settle or pay the high cost of litigation, in addition to statutory damages and possible attorney’s fees of the plaintiff. Statutory damages, for example, can be up to $150,000 per work infringed in cases of willful infringement.
The rise of copyright trolls
Since the emergence of peer-to-peer file sharing networks like BitTorrent, online copyright infringement has become widespread. Over the past several years, lawsuits against multiple John Doe defendants have gone from being virtually nonexistent to becoming the most common form of copyright litigation in multiple U.S. districts. John Doe litigation made up only four percent of copyright cases in 2010, but increased to 58 percent by 2015.
However, mass joinder lawsuits are declining because of perceived unfairness, Sag explained. Joining together many subscribers in one lawsuit with little evidence denies individuals the opportunity to explain their circumstances in court (e.g., who uses their Internet connection).
It's not easy for copyright trolls
In the rare instance that a John Doe case makes it to court, copyright troll plaintiffs are faced with a number of challenges: boilerplate assertions that IP addresses were infringed, compliance with discovery requests, and problems with experts.
It is also difficult and costly to prove who’s responsible, or to identify the human behind the IP address. A subscriber isn’t necessarily the infringer — a third party could be downloading illegal movies on another person’s WiFi.
Competing values and reform proposals
Competing values that surround John Doe copyright litigation can be summarized in a sentence: a lot of people illegally download copyrighted works, but allowing plaintiffs to exact high settlements simply because litigation is expensive seems unfair.
Nor is it clear that the costs of an infringement finding bear any meaningful relationship to the actual value of the infringer’s use. Sag compared the relative damages that can be awarded in a copyright infringement case, which usually falls between the range of $2,000 to $4,000. However, this is only a fraction of the cost of potential statutory damages for willful copyright infringement, which may cost an upwards of $150,000 per work infringed.
To address this tension, Sag proposed a new model for copyright troll reform, in which the cost of admission would be a much lower for the defendant, admission of liability would be inadmissible outside of the copyright small claims process, and anonymity would be preserved through a special master of discovery. He hoped this system would ultimately encourage both less “trolling” activity and more people to engage in paid for, authorized uses of copyrighted materials.
To learn more about copyright trolling, read Professor Sag's article in the Iowa Law Review.
By Katrina Do | March 4, 2016