Copyright Trolls: The Meaner Stepsister of Patent Trolls
|Written by Beth Hutchens
Hutchens Law Office, PLLC
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Posted: December 8, 2010 @ 5:38 pm
Ladies and Gentlemen, allow me to take this opportunity to introduce you to intellectual property’s latest monster- the copyright troll. Please hold your applause. It looks like patents have an uglier, even meaner stepsister.
Copyright trolls are a relatively new beast, and it’s hard to nail down a definition, so I’m just going to fall back on the immortal words of Justice Stewart’s famed copout “I shall not today attempt further to define the kinds of material I understand to be embraced . . . but I know it when I see it . . .” Boy, you said it, Justice Stewart. Of course, he was talking about obscenity and I’m talking about troglodytes. But to me, copyright trolls are like patent trolls. They have very little or no interest in the progress of the arts and brandish their copyright like a sword. They threaten to sue anyone and everyone who even looks at their copyrighted material without permission.
Like a patent troll, a copyright troll sometimes even makes more money from infringement suits than it does from the copyright itself. Half the time they didn’t even create or market the subject of the copyright; they just wait to exploit a hot mess of a body of law to make more money. This is often done under the dubious premise of a million billion zillion dollars in lost profits. Oh, and something or other about protecting the honest law abiding public from those no good dirty rotten infringers, it’s the principle of the thing, or… or something like that. Trolls- ugh. Sigh.
So here we have the US Copyright Group (“USCG”), who has sued more than 20,000 accused file-sharers. Bit torrent evildoers, if you will. USCG also apparently plans to target a lot more evildoers in the future. Did I not get the memo? Is there a contest for most defendants named in a calendar year or something? Long story short, and from what I gleaned from their website and other resources, USCG works like this: Identify an infringing ISP (lots and lots and lots of them), subpoena the (individual small-fry random citizen) owner’s name and address, send a letter to that individual small-fry random citizen telling them they infringed a copyright and demand payment (around $1500 or so, I believe), tell them if they don’t settle, they can be sued for copyright infringement and may be liable for all kinds of big time damages (even the statutory kind), tell them how costly litigation is and how beneficial settlement is, and then sit back and wait for the money to roll in. They do tell the person to talk to a lawyer though. So that was nice of them. 20,000 of these letters thus far and more to come. Wow.
Riddle me this. Accusations are made against an individual based on information obtained from the ISP, so how is USCG going to prove that the accused is the one who actually infringed? They get the information based on IP address so what do they do if they can’t prove, for example, Broomhilda Brapstein from Cheboygan, Michigan, is the person who actually illegally downloaded that movie? I guess they could trot out that she owns the IP address, so it was contributory infringement, but isn’t that a knowledge based argument? Don’t both of those accusations require, um, what was it called? Oh yeah, evidence. Besides, isn’t there some pesky rule about grounded in fact and law or some other such nonsense? And the suits are all based out of DC, but isn’t there also some weird thing we learned in law school about personal jurisdiction or something? One Mr. Dmitriy Korosov thought about some of this and a whole lot more. He’s kind of miffed at USCG so in a special Thanksgiving Day treat, and representing a proposed class of nearly 5,000 other bit torrent defendants, he slapped a lawsuit against USCG alleging (among other things) conspiracy, extortion, racketeering, and a couple of different flavors of fraud. Take that, USCG!
The complaint is pretty long (96 pages) but it’s totally worth a read. Make the time for it. You’ll thank yourself later. It’s well reasoned, well researched, and well written. Briefly, Mr. Korosov is alleging first and foremost that settlement letters were sent alleging infringement of a copyright that wasn’t even registered at the time, but still alleging the owner may be entitled to statutory damages. (Psssst- you can’t get statutory damages if the infringement happens prior to registration). The complaint also alleges that USCG knew it had no right to statutory damages but didn’t tell the person receiving the letter that and that this was a “misstatement of material information [that] was made to maximize the damage awards that Defendants could pursue, the claims for Ineligible Remedies they could threaten in demand letters, and the volume and amount of extorted ‘settlements’ that would result”. And USCG purposefully didn’t tell the Copyright Office about the actual first date of publication of the movie in question. And, given the size of the law firm that owns / is affiliated with USCG, they couldn’t possibly have the capacity to handle that many open matters. And a whole bunch of other stuff. Trust me, read the complaint.
If the allegations are true, I can’t wait to see how USCG responds to this one. But still, I can’t help but wonder if Mr. Korosov’s argument against USCG will work. Something tells me USCG did its homework before moving forward with its business model. Maybe they found a loophole or maybe they didn’t find anything that said they couldn’t do this (which is as good as a go ahead in some circles). I don’t know, but at any rate, I think there has to be something there or, in my humble opinion, they wouldn’t be so free with their business model and information. Plus, are we really sure we want to brand them trolls just yet? I have my opinion and you have yours, but let’s think for a minute. Do they just seem like trolls because of the huge number of defendants or are they really big ol’ meanies taking advantage of the system? Are they exploiting a loophole or do they really believe digital pirates are the scourge of human existence? I mean, technically, at least some the defendants did infringe, didn’t they? Maybe even willfully, so not unlike like the false marking troll suits, isn’t USCG kind of right? A little shady and totally groan-inspiring? Perhaps. But unlawful? I’m not so sure. I suppose they shouldn’t be sending out settlement letters threatening statutory damages if statutory damages aren’t on the table, but meh, I’m not sure how far one could stretch that argument in this case. At any rate, the blogosphere is on fire with this one, leading me to believe that popular opinion is USCG had it coming.
At any rate, kudos to Mr. Korosov. Sort of. I am a big fan of the little guy fighting back, but I’m not condoning piracy (so stow it before you even start). To all you file swappers, counterfeiters, and pirates- for crying out loud, would you guys knock it off already? Just pay the stupid $1.29 or whatever. You waste more time and money figuring out how to steal stuff than you would if you just paid for it. Besides, you do know that those big ol’ companies just pass the money they lose because of you to their paying customers. You knew that, right? And to you behemoth copyright owners, would ya’ll just chill out a little bit? Pretty pretty please with sugar on top? It’s getting beyond ridiculous. We need to work on preventing piracy, but is it that difficult to brainwork the huge screaming difference between a 12 year old file swapping in his Grandma’s garage and those bozos selling pirated DVDs on eBay? Sort it out already! Lest this copyright troll thing gets really out of hand (as if it hasn’t already).
I’ve said it before and I’ll say it again- a rigorous adherence to what is good in theory makes very little common sense. So I ask (as I often do when referring to copyright law) why are they snarling after the littlest Billy Goat when there’s a really big Billy Goat just around the corner-one who’s tromping on the bridge more? I honestly have no idea where this suit is going to end up. The “you didn’t register the copyright” argument may operate to dismiss some members of the class, but not all of them. And I’m still not sure that USCG is skirting the law or if the racketeering, conspiracy, and fraud charges are going to hold up. The suit is certainly making a loud statement, though. Oh, wait. Didn’t the Billy Goats Gruff wind up defeating the troll in the end?
About the Author
Beth is an Intellectual Property attorney licensed to practice before the United States Patent and Trademark Office and the State Bar of Arizona. She received her B.S. in Biological Sciences from CSU, Sacramento and her J.D. from Whittier College School of Law, where she earned a Certificate in Intellectual Property. She enjoys being a solo practitioner in Phoenix, Arizona.