Tuesday, June 4, 2013

Mr. Spock Battles the Trolls

“The needs of the many outweigh the needs of the few.”
—Spock, Star Trek II: The Wrath of Khan (1982).

These are the opening words in United States District Judge Otis D. Wright’s May 6, 2013, order issuing sanctions against two recent graduates of the University of Minnesota Law School for filing hundreds of cases alleging copyright infringement involving pornographic videos.

Judge Wright went boldly where no man had gone before in taking on these alleged copyright trolls. 

According to Judge Wright, these entrepreneurial lawyers “…have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists, allow starving attorneys in this electronic-media era to plunder the citizenry.”

So how did these hungry young lawyers come to incite the wrath of Wright? They monitored downloads of copyrighted porn movies using a software program called BitTorrent. They would then record the IP addresses of the computers downloading the movies, file suit in federal court to subpoena Internet Service Providers for the identity of the subscribers to these IP addresses, send cease and desist letters to the subscribers, and offer to settle each copyright infringement claim for about $4000.

Individuals targeted gladly paid a few thousand dollars to save embarrassment and avoid a potential $150,000 statutory damage award for copyright infringement.

Their business model was successful as they obtained millions of dollars in settlements. And then the Starship Enterprise and Dr. Spock appeared in in the form of Judge Wright and put an end to these enterprising young trolls.

Is copyright trolling now dead? Not really. These guys got caught because they created fictitious companies to initiate the claims, failed to conduct sufficient investigations of the alleged infringement, exercised deception and fraud on the court, engaged in forgery, and, in the words of Judge Wright, conducted “vexatious litigation to coerce settlement.” The use of BitTorrent and the practice of enforcing copyrights without producing or licensing the works, for the sole purpose of making money, will likely continue. 

It will however be interesting to see how Judge Wright’s order affects lawyers who pursue similar copyright infringement claims, especially those who do not employ abusive litigation practices.  According to Mark Stoltz of the Electronic Frontier Foundation, “Other lawyers have been doing it without forging signatures and using shell companies. But they're no less harmful.” See here or interesting additional perspectives on copyright trolls. 

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