The Electronic Frontier Foundation reported last week that over 40,000 unnamed “John Doe” defendants in California, Texas, Washington D.C., and West Virginia have been “effectively dismissed” in the P2P file-sharing lawsuits against them. This is the latest news in the series of mass copyright-infringement lawsuits over the past year by so-called copyright trolls, and could mean trouble for the supposed business model of such organizations, which aims for “quick, low-hassle settlements” from numerous defendants.
Similarly to patent trolls, a copyright troll, as described by Wikipedia, “enforces copyrights” for the primary purpose of “making money through litigation.” Organizations with official-sounding names such as the U.S. Copyright Group, Righthaven, and the Copyright Defense Agency have brought a variety of copyright infringement lawsuits, ranging from BitTorrent downloading of independent films and pornographic movies, to the posting of news articles on blogs and forums. In some cases, the organization represents a group of copyright owners; for example, according to Wired, the U.S. Copyright Group represents independent filmmakers. Another organization, Righthaven LLC, reportedly acquires copyright in works after discovering identifying instances of potential infringement; according to Law.com, Steve Gibson, founder of Righthaven LLC, “founded Righthaven to file suits based on newspaper copyrights he has acquired.”
With the proliferation of lawsuits filed by copyright trolls within the past year, the litigation tactics of these organizations, characterized as “predatory,” have troubled many. The EFF, which filed amicus briefs on behalf of defendants in some of the cases and are helping defendants obtain legal representation in other cases, has characterized the M.O. of copyright trolls as dependent on “vulnerable defendants” and “cookie-cutter litigation.”
The groups target defendants by monitoring activity on the Internet. For example, the U.S. Copyright Group used a proprietary new technology to monitor movie downloads on torrents and identify IP addresses linked to downloads. The EFF states that targeted defendants have compelling reasons “to be eager to settle” when they are sued. For example, the defendants targeted by the Copyright Defense Agency on behalf of gay adult film studio Lucas Entertainment may be “afraid of the consequence of having their information made public.” Other defendants do not have the means to contest a lawsuit or pay damages for copyright infringement. For example, some of the defendants targeted by Righthaven are nonprofit organizations or individual bloggers such as Brian Hill, the 20 year-old chronically ill and autistic “hobby-blogger” on disability. According to a report from Wired, as of last October, Righthaven has settled 60 of 160 cases for several thousand dollars each.
Despite the apparent success of copyright trolls in some cases, some of the litigation tactics the copyright trolls employ are working against them in other cases. The EFF characterizes these tactics, such as filing a single lawsuit against hundreds or even thousands of unrelated “John Doe” defendants, as “crucial” to the copyright troll business model, by keeping costs down and thus boosting profits.
Some courts are responding to these lawsuits by requiring the plaintiffs to file separate lawsuits for each defendant. For example, last month a federal district court judge in Texas severed 1336 of 1337 defendants in one case filed by Copyright Defense Agency attorney Evan Stone. Pursuing a lawsuit against each individual defendant would require a $350.00 fee and a separate filing for each defendant. Such requirements would make the use of such tactics by copyright trolls cost-prohibitive. It remains to be seen whether or not this type of judicial action will ultimately deter copyright trolls or if they find ways around such roadblocks.
Fortunately, copyright guys are going to get on top of this quicker than patent guys. Nobody supports the pure troll – however, where one legitimately buys rights to intellectual property and decides to enforce their position – fair game. But that which is clear profiteering from a litigation system too cumbersome to get out of its own way is to be abhorred.