Trolls An Empirical Study Prof Matthew Sag Loyola University Chicago School of Law What is a troll NPEish definitions Troll the business of litigation is its business Troll systematic legal enforcement of copyrights in which it has acquired a limited ownership interest ID: 426854
Download Presentation The PPT/PDF document "Copyright" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Copyright Trolls, An Empirical Study
Prof. Matthew Sag
Loyola University Chicago
School of Law
Slide2
What is a troll?
NPE’ish
definitions
Troll = the business of litigation is its businessTroll = “systematic legal enforcement of copyrights in which it has acquired a limited ownership interest.” Shyamkrishna Balganeshasymmetric stakes ‘this suit is BS’ definitionsTroll = ‘bottom feeder’, in effect nuisance value settlements of ‘dubious’ claimsLack technical merit, Lack constitutional merit
2Slide3
A troll is a systematic opportunist, manifestations of opportunism are varied.
Opportunistic litigation strategy
Weak claims
asserts rights it does not have, poorly substantiated claims of infringement,disproportionate remedies.Not bound by conventions of tolerated use Patent: because NPE Copyright not interested in the conventional market place (courthouse value> marketplace value, limited assignments)Motive for rights acquisition is opportunistic Paper patents (courthouse value> marketplace value) Partial assignments,
Looking for infringed works whose
courthouse value> marketplace
value. Exploits sunk costs and unavoidable infringement
3Slide4
How are copyright trolls different to patent trolls?
The
opportunism of copyright trolls is primarily directed towards statutory damages.
courthouse value> marketplace valueMakes weak cases strongerMakes otherwise individually inconsequential infringements profitableStatus-based definitions clearly not helpful4Slide5
How do Multi-Defendant John Doe suits work?
“Copyright Owner v. John Does 1 – N”
Alleging illegal file sharing using BitTorrent
Defendants identified by IP addressJoinder?, personal jurisdiction?Early discovery from ISPsNegotiate settlementsThreat of statutory damages, exposure, Response to ‘it wasn’t me defenses’5Slide6
Are Lawsuits against BitTorrent users trolling?
Partly a question of motive, partly of tactics
RIAA
is not copyright troll. End-user litigation aimed at sending a message not creating an independent revenue streamVoltage (e.g. The Hurt Locker)Could be seen as a troll because independent revenue streamPrenda Law (mostly porn)independent revenue stream + “extortion tactics”
6Slide7
How significant are MDJD suits?
Database = all
copyright cases filed in
U.S. federal district courts between January 1, 2001 and December 31, 2013.Data from PACERWas just 2d, 7th and 9th, but now all. Identifying “John Doe” lawsuits“John Doe” and “Doe”
Identifying pornography
Tedious plaintiff by plaintiff review.
Assumes that one porn case is enough.
7Slide8
Some Impressive Data
8Slide9
9
42
%
of copyright filings were multi-defendant John Doe suits in the U.S. in 2013Slide10
10
U.S. Federal districts where
mdjd
> all other copyright in 2013Alabama (SD)ColoradoDelawareDistrict Of ColumbiaFlorida (MD)Georgia (ND)
Georgia (SD)
Illinois
(CD)Illinois (ND)Indiana (ND)
Maryland
Michigan (ED)
Ohio (SD)
Pennsylvania (ED)
Tennessee (ED)
Tennessee (WD)
Washington (WD)
Wisconsin (ED)
Wisconsin (WD)Slide11
11Slide12
12
Percentage of John Doe Law Suits by State, 2001-03, 2004-06, 2007-09, 2010-12, 2013
Slide13
13
Percentage of John Doe Law Suits by
Circuit,
2001-03, 2004-06, 2007-09, 2010-12, 2013 Slide14
14
Districts where MDJD-Porn> all other copyright in 2013
Alabama (SD) Colorado
District Of Columbia Illinois (CD)Illinois (ND) Indiana (ND) Maryland Michigan (ED)Pennsylvania
(ED
) Tennessee
(ED) Tennessee (WD)
Wisconsin
(ED
) Wisconsin
(WD
)Slide15
What (if anything) Should be Done?
What is driving this litigation?
(pervasive infringement)
Statutory damagesPermissive joinder & Early discoveryPorn “extortion”Districts where MDJD-Porn>MDJD-Other in 2013Alabama (SD), California (SD) Colorado, District Of Columbia Florida (MD) Florida (SD), Illinois (CD) Illinois
(ND
) Indiana
(ND) Indiana (SD), Iowa
(
SD) Louisiana
(ED
), Maryland Michigan
(ED
), Michigan
(WD
), Minnesota, New Jersey, New
York (ED
), Ohio
(
SD), Pennsylvania
(ED
) Tennessee
(ED
) Tennessee
(WD
) Texas
(ND
) Texas
(
SD), Wisconsin
(ED
) Wisconsin
(WD)
15Slide16
16
Count of John Doe Copyright Lawsuits 2000–2013, by District Slide17
What (if anything) Should be Done?
File-sharing is wrong, but …
Fairness to defendants
Statutory damages make a 5% case a winning caseAbuse of the judicial process (esp. threats)ProposalsReasonable Statutory damages Conditional joinder/discoverySafeguards, agreement to reasonable statutory damagesSever & Consolidate
17