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Reconciling Competing Values in Copyright John Doe Litigati Reconciling Competing Values in Copyright John Doe Litigati

Reconciling Competing Values in Copyright John Doe Litigati - PowerPoint Presentation

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Reconciling Competing Values in Copyright John Doe Litigati - PPT Presentation

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

john copyright doe joinder copyright john joinder doe litigation cases mass 2015 personal trolling

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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?