Copyright Trolling
A troll in folklore is a giant or a dwarf that inhabits caves or hills.[i] Perhaps not so different than the traditional troll is the one that exists in the realm of intellectual property law—the copyright troll. Copyright trolls are typically an afterthought to the widely known patent troll; however, they have been quietly filling the federal dockets to the tune of about half of all copyright cases in 2014-2016.[ii] Like the trolls in folklore, copyright trolls seek tolls from all who pass by. Copyright trolls are an unfortunate byproduct of the Copyright Act; the Act creates an opportunity for a business model that does not fit within the purpose of the Copyright Act.
Copyright trolls come in all shapes–some are individuals, others are organizations.[iii] Copyright trolls typically exploit loopholes in the law and human vulnerabilities to demand payments from users who are unfamiliar with the legal system and do not know how to contest an accused infringement.[iv] In doing this, copyright trolls have crafted a business model serving private party trolls out of the Copyright Act’s attempt to balance the rights of authors and publishers with users (users here are Internet users like you and me). The way use of the Internet has grown has catalyzed an uptick in the frequency of digital piracy, especially over peer-to-peer sharing networks. Industries that are heavily affected by digital piracy include film, video games, computer software, and music.[v] Copyright trolls target thousands of users at a time in order to maximize profits—pursuing legal claims against users who choose to pirate copyrighted works from these industries, and also smearing factually innocent users.[vi] While digital piracy is a problem in its own, the discrepancy of culpabilities between users accused of infringement and the costs associated with litigation are larger issues.[vii]
Copyright trolls use their knowledge of copyright law to initiate claims against internet users who don’t know how to effectively assert their rights in court. When a plaintiff starts the trolling process, typically evidence is asserted against thousands of “John Doe” defendants that they participated in a large peer-to-peer sharing scheme, usually what is known as a “BitTorrent swarm”.[viii] The trolls have tools that can detect a defendant’s device’s IP address in a Bittorrent swarm and the court case allows them to get more information from the defendant’s internet service provider.[ix] Often times the evidence trolls gather in a case is based on illegally downloading embarrassing pornographic films, a popular tactic to convince the defendant to just pay the settlement without questions.[x] In order to identify users to target, copyright holders employ companies that specialize in peer-to-peer network monitoring.[xi] Because a Bittorent swarm involves many nodes of internet users who are sharing content, there are a lot of potential defendants from any one copyrighted work that the trolls are tracking. Often, the plaintiffs in the suit will seek to join several defendants via FRCP 20(a)(2).[xii] Joinder is beneficial for the copyright troll because it allows for the plaintiff to seek damages from the defendants all at once, which maximizes the return on the investment to bring the suit.[xiii] Finally, using the records from the defendants’ internet service provider, the plaintiffs identify the defendants in the suit.[xiv] This is crucial not only to provide evidence, but also to the business model’s success.[xv] Often times copyright trolling is stopped at this step because of the lack of compliance from internet service providers to provide key information—trolls tend to move on from jurisdictions where ISPs are non-cooperating to jurisdictions where they can get a lot of information about the defendants.[xvi]
Currently, there are a few proposals to mitigate the problem of copyright trolling. These reform proposals include reform to statutory damages; denial of joinder or severing cases; and conditional joinder and other safeguards.[xvii] Reform to statutory damages would mean making the damages available for unauthorized file sharing more reasonable by changing the framework of the damage system.[xviii] This should be accomplished by Congress and is supported by rational deterrence theory.[xix] Another proposed reform is to eliminate joinder for these types of defendants and force the plaintiff to sever cases.[xx] This would force the plaintiffs to pay higher amounts of filing fees, diminish the business model’s profit, and make it more likely that litigation is only used to protect plaintiff’s copyrights, discouraging monetization of infringement.[xxi] In addition, conditional joinder and other safeguards could be employed to deter copyright trolling. Conditional joinder is described as only making joinder available in suits where the statutory damages sought are above a certain limit; therefore, copyright trolls would be limited because the tendency to pick an amount that’s not too expensive but profitable would be unallowed.[xxii] Other safeguards include supervising the discovery process through court-appointed attorneys, court granted anonymity, and the opportunity for defendants to proceed through their own “it wasn’t me” mini-trial.[xxiii]
Future solutions will most likely be found in decisions made in the courtroom; however, the Copyright-Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) was recently enacted. In addition to allowing claimants to recover on infringement claims that they would otherwise not be able to bring in federal court, the CASE Act would allow defendants who choose to participate a chance to reduce cost and time needed to resolve disputes and ensure they’re protected from liability for any amount over the cap on recovery in the small claims proceeding.[xxiv] Essentially, the CASE Act would create a small claims forum within the Copyright Office to benefit plaintiffs and defendants alike. There are competing views whether the CASE Act would discourage copyright trolls or would aid their business model [xxv], but the answer will only come in future as the Copyright Claims Board (CCB) and federal courts exercise concurrent jurisdiction.
If you suspect you are a victim of copyright trolling or have received a threat of litigation unless a settlement is paid, here are some do’s and don’ts:
Do’s:
Be proactive
Review your social media pages to make sure that you are not using any copyrighted images or music.
Be careful with the types of software you use.
Be timely in your decision making, but still make informed choices.
Consult with a lawyer ASAP.
If you receive a letter from your internet service provider, make note of any deadlines the letter contains.
Don’ts:
Do not wait too long, be wary of deadlines!
Try to deal with the matter yourself.
It can be done but it is typically more expensive to fix the mistakes that individuals made themselves without legal consult than is paying for a lawyer.
Be very careful if the copyright troll’s lawyer AKA the settlement negotiator contacts you, they will likely be trying to get you to self-incriminate yourself.
Doing nothing.
There are times that this can work out with no cost to the individual; however, this is a risky approach and is not recommended.
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[i] Merriam Webster
[ii] Sag, 1107; Sag & Haskell, 573.
[iii] Sag, 1108
[iv] Wall, 607
[v] Mortenson, 1107.
[vi] Mortenson, 1107-110.
[vii] Id. at 1116
[viii] Sag & Haskell, 581.
[ix] Id.
[x] Mortenson, 1112.
[xi] Id.
[xii] Id.
[xiii] Id. at 1113.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Sag, 1135-45
[xviii] Id. at 1135
[xix] Id.
[xx] Id. at 1141
[xxi] Id. at 1141
[xxii] See Mortenson; Sag, 1144.
[xxiii] Sag, 1144.
[xxiv] ABA
[xxv] Compare Copyright Alliance with Jurist.