Presentations text content in Reconciling Competing Values in Copyright John Doe Litigati
Slide1
Reconciling Competing Values in Copyright John Doe Litigation
Matthew SagProfessor of Law, Loyola University of Chicagomsag@luc.edu
© Matthew Sag.
For
discussion, not citation or redistribution. March
8
,
2016
Slide24%
2010
Slide319%
2011
Slide443%
2012
Slide546%
2013
Slide652%
2014
Slide758%
2015
Slide8How “copyright trolling” works
(1) File a case:
XYZ Copyright Inc. v. IP Address 72743563910
Target users of BitTorrent, other filesharing and illegal streaming services who identified only by their IP Address.
(2) Mass-Joinder:
XYZ Copyright Inc. v.
John Does 1 - 5000
(3) Early discovery
(4) Negotiate settlement
Cases
almost never reach
a hearing
.
John
Does almost never
served.
Slide9Is it “trolling”?
“Monetization of infringement” a more value neutral term
Arguably distinct from RIAA end user litigation campaign,
copyright trolling is not aimed
at deterrence, compensation.
Opportunism/Hunting
license – indifference to defendant’s guilt or innocence.
Slide10What’s changed since 2010?
Prenda Law“extortion”SanctionsMass joinder far less commonSome resistance to early discoveryCourts requiring more evidence of personal jurisdiction before subpoena issued
Rule
20, Rule
21
Unfairness
Unsavory
associations
Sham
/pretext (formalism v pragmatism)
Avoiding filing fees
Slide11Lead plaintiffs have moved away from mass joinder
Slide12If piracy is the problem, this is not the solution
John Doe litigation
–
58
% of Federal Court Copyright Cases in
2015
– But
is used by
0.00000001% Of Copyright Owners
Slide13John Doe litigation is working for Malibu Media, but very few others
Plaintiffs associated with lawyer Michael
Keith
Lipscomb more than 80% of John Doe cases in 2015 and 47% of all copyright cases!
Slide14Competing Values
DeterrenceRemedyEfficient process
Excessive penaltyArbitrary incidenceInvasion of privacyFalse attribution of infringementSettlement by “extortion” or intimidationDue process- personal jurisdiction- confrontation- proof of infringement
Copyright owners want
Those targeted object to
Those targeted
demand
Slide15Options
Status quo?
Might collapse, might become the norm
Increase/decrease filing fees?
Increase/decrease procedural safeguards?
Expand DMCA subpoenas
Additional safeguards for subpoenas
Make mass joinder easier/harder?
Copyright small claims tribunal?
Slide16Slide17Slide18
Reconciling Competing Values in Copyright John Doe Litigati
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