Matthew Sag Professor of Law Loyola University of Chicago msaglucedu Matthew Sag For discussion not citation or redistribution March 8 2016 4 2010 19 2011 43 2012 46 ID: 512153
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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
,
2016Slide2
4
%
2010Slide3
19%
2011Slide4
43%
2012Slide5
46%
2013Slide6
52%
2014Slide7
58%
2015Slide8
How “copyright trolling” works
(1) File a case: XYZ Copyright Inc. v. IP Address 72743563910Target 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 termArguably 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”Sanctions
Mass joinder far less common
Some
resistance to early discovery
Courts requiring more evidence of personal jurisdiction before subpoena issued
Rule
20, Rule
21
Unfairness
Unsavory
associations
Sham
/pretext (formalism v pragmatism)
Avoiding filing feesSlide11
Lead plaintiffs have moved away from mass
joinderSlide12
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 OwnersSlide13
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 penalty
A
rbitrary incidence
Invasion of privacy
False attribution of infringement
Settlement by “extortion” or
intimidation
Due
process
- personal jurisdiction
-
confrontation
- proof of infringement
Copyright owners want
Those targeted
object to
Those targeted
demandSlide15
Options
Status quo?Might collapse, might become the normIncrease/decrease filing fees?Increase/decrease procedural safeguards?
Expand DMCA subpoenas
Additional safeguards for subpoenas
Make mass joinder easier/harder?
Copyright small claims tribunal?