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Copyright - PowerPoint Presentation

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Copyright - PPT Presentation

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

john copyright 2013 illinois copyright john illinois 2013 tennessee wisconsin statutory doe suits mdjd district litigation trolls damages michigan

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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