Reconciling Competing Values in Copyright John Doe Litigati

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Matthew Sag. Professor of Law, Loyola University of Chicago. msag@luc.edu . © Matthew Sag. . For . discussion, not citation or redistribution. March . 8. , . 2016. 4. %. 2010. 19%. 2011. 43%. 2012. 46%. ID: 512153 Download Presentation

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Reconciling Competing Values in Copyright John Doe Litigati




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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

Slide2

4%

2010

Slide3

19%

2011

Slide4

43%

2012

Slide5

46%

2013

Slide6

52%

2014

Slide7

58%

2015

Slide8

How “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.

Slide9

Is 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.

Slide10

What’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

Slide11

Lead plaintiffs have moved away from mass joinder

Slide12

If 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

Slide13

John 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!

Slide14

Competing 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

Slide15

Options

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?

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