[Infowarrior] - A Field Guide to Copyright Trolls

[Richard Forno]

September 28th, 2010
      
A Field Guide to Copyright Trolls

Commentary by Corynne McSherry

https://www.eff.org/deeplinks/2010/09/field-guide-copyright-trolls

With all of this talk about copyright trolls and spamigation, it is easy to get confused. Who is suing over copies of Far Cry and The Hurt Locker? Who is suing bloggers? Who is trying to protect their anonymity? Who is defending fair use? What do newspapers have to do with any of this? In order to cut through the confusion, here’s a concise guide to copyright trolls currently in the wild, with status updates.

Leading the pack for sheer numbers is a Washington, D.C., law firm calling itself the U.S. Copyright Group (USCG), that has filed several "John Doe" lawsuits in D.C., implicating well over 14,000 individuals. This firm has learned one lesson from the RIAA suits: the only group whose bottom line benefits from this kind of mass  litigation is the lawyers. As we reported last week, several of the Does in these cases are fighting back in earnest, albeit with mixed results: on the one hand the judge in two of the cases has rejected various efforts to protect the anonymity of the Does, insisting that they cannot file papers anonymously. However, the same judge has issued orders requiring USCG to justify suing two of the Does in the District of Columbia, as the Defendants claim to have no contacts with the District. Meanwhile, in South Dakota, ISP MidContinent Communications stood up for its customers and moved to quash an improperly issued subpoena for their identities. Last week, a federal judge granted that motion.

Righthaven LLC, which has brought over 130 lawsuits in Nevada federal court claiming copyright infringement, has a different angle, preferring to acquire the copyrights rather than represent the owner. Righthaven focuses on news: it trolls by (a) scouring the Internet for newspaper stories (or parts thereof) originating with the Las Vegas Review-Journal that have been posted on blogs, forums and webpages, (b) acquiring the copyright to that particular newspaper story, and then (c) suing the poster for copyright infringement.

Righthaven demands sums up to $150,000, and uses the threat of these out-of-proportion damages to push defendants into quick settlements. Some attorneys are advising bloggers to simply follow the rule laid down by the Las Vegas Review-Journal's parent company and refrain from quoting anything more than the headline and first paragraph of news articles. Following this advice essentially allows a newspaper to decide what constitutes fair use, a term they are motivated to construe as narrowly as possible. Still others suggest that "the easiest way to avoid copyright infringement claims is to avoid copying," which is true only in the sense that the easiest way to avoid getting robbed is to have no possessions. Quoting, linking, aggregating all involve "copying" and all are integral to any number of perfectly legal creative, often non-commercial, uses of copyrighted works. Indeed, these uses are what makes the internet such a remarkable tool for fostering innovation.

Some Righthaven defendants are fighting back. For example, Democratic Underground, an independent discussion forum that was sued based on a 5-sentence excerpt a user posted on the forum. Democratic Underground filed its Answer and Counterclaim Monday; more on that here. And just last week, a judge in another Righthaven case strongly suggested that a post on another site was protected by the legal doctrines of fair use and implied license.

Then there’s the relative newbies, such as Lucas Entertainment and Mick Haig Productions, both represented by attorney Evan Stone. Lucas has sued 53 BitTorrent users it alleged uploaded and downloaded the Kings of New York, a gay porn movie. After suing the users as “Does,” based on their IP addresses, it promptly subpoenaed the identities of people associated with those IP addresses. Unfortunately, many of those people, who are not comfortable being publicly identified in connection with pornography, will feel they have no choice but to settle rather than having their name publicly disclosed, no matter how meritorious their defenses. Mick Haig upped the ante by suing 670 BitTorrent users, and Larry Flynt Publications has gotten in on the act as well. Subpoenas and threat letters are likely to follow soon.

These lawsuit reflect a business model that depends on two things:

	• Cookie-cutter litigation tactics, such as filing one lawsuit against thousands of legally unrelated people in a court convenient to the lawyers, even if it means the targets will have to defend themselves thousands of miles from home; or creating a “model pleading” which can be quickly revised with a few new facts to sue a new person. These tactics are crucial: they keep costs down, which in turn boosts profits.
	• Vulnerable defendants. Many defendants will be eager to settle because they cannot afford the risk of an award of substantial damages if the case went to trial. Others may have strong defenses that would win at trial, but are unable to obtain counsel far from home (e.g., the defendants in the USCG cases, many of whom appear to be located thousands of miles away from the court where they’ve been sued), unable to afford counsel (e.g., the numerous nonprofits and individual bloggers targeted by Righthaven), or afraid of the consequence of having their personal information made public (e.g., the defendants targeted by Lucas Entertainment).
EFF is trying to help by assisting people in finding lower cost or pro bono counsel, allowing people to fight back without the costs of defense bankrupting them. But in the meantime, these lawsuits are causing tremendous collateral damage — to the individuals targeted, to due process, and to the legal profession (which doesn’t need another example of unscrupulous lawyering). To be clear, no one is arguing that copyright owners don’t have a legal right to protect their works. But it’s quite another thing to game the legal system — and waste judicial resources, i.e., your tax dollars — to make a profit.