Malibu Media recently filed 42 new copyright troll cases in the U.S. District Court for the District of New Jersey alone, and including New York, Pennsylvania, and Texas, Malibu Media has filed nearly 150 new copyright cases in 2017. Needless to say, copyright trolling is far from over, which is one of the main points made in a scholarly article by renowned intellectual property law professor Matthew Sag, which appeared on my radar because of a post by my friends at Fight © Trolls (@fightcopytrolls). Rather than reinvent the wheel, with their permission, I am republishing their post/analysis of Professor Sag’s article here:
Last month, Matthew Sag, a law professor at Loyola University Chicago School of Law, and the Associate Director of the Institute for Consumer Antitrust Studies, published his second copyright troll-related paper Defense Against the Dark Arts of Copyright Trolling. This paper was co-authored with Jake Haskell — a recent graduate of Loyola University Law School. The first of Professor Sag’s works on this topic, Copyright Trolling, An Empirical Study, published by the Iowa Law Review in 2015, was mostly a statistical analysis of mass bittorent litigation in the U.S. Nonetheless, that paper was widely quoted by the defense bar and even judges.
The new work goes far beyond the indifferent observer’s position: strongly (by academic standards) condemning the copyright trolling phenomenon, Professor Sag analyzes the cogs of the bittorent litigation machinery, enumerates the majority the Achilles’s Heels of the trolling business model, and gives some solid practical recommendations to defense attorneys. While seasoned Doe defenders won’t likely find a lot of new information, there are myriad otherwise competent IP lawyers who never wandered into the bittorent litigation corner of the legal landscape, and one of the paper’s main goals is to empower such attorneys with knowledge, so that they would help their clients efficiently and cheaply (thus, driving down the profitability of the legal shakedown):
Defendants may seek legal advice from attorneys who do not know enough about copyright litigation to realize how weak the plaintiff’s case is and who rightly conclude on a cost-benefit analysis that it would be cheaper to settle than to properly investigate the strength of the claim.
Our objective in this Article is to make it easier for lawyers without substantial experience in copyright law or a deep understanding of the Internet to be able to defend their clients against copyright trolls. In our view, lawyers should not charge large fees to settle weak allegations but instead should either charge low fees for quick settlements for actual infringers or reasonable fees to defend their non-infringing clients.
The other major goal is to provide a clear bigger picture to the U.S. federal judges and magistrates. Because the copyright trolling business model is largely based on sleazy attorneys taking advantage of unrepresented laypeople, many judges never had a chance to hear competent counterarguments, and hence have been making their decisions based solely on the trolls’ misinterpretations.
But lawyers are not the only ones with a social and ethical responsibility to take the problem of copyright trolling seriously. District court judges have an inherent authority to control their own proceedings, and significant discretion to supervise discovery and in areas such as attorney’s fees and statutory damages. We hope that judges will take steps to discourage the abusive use of civil litigation and find ways to manage John Doe copyright litigation in the interests of justice and consistent with the goals of copyright.
When we, anonymous bloggers, ring alarms — no matter how well evidenced — the impact on judiciary is limited. It doesn’t require an explanation why judges will listen to a law professor much more attentively. Therefore, I expect this paper to have a greater impact on the current legal situation than my six-year layperson’s advocacy.
Matthew Sag: Prenda is Gone, But Copyright Trolling Continues
It is satisfying to see justice finally catch up with Steele and Hansmeier, but anyone who thinks that this is the end of copyright trolling has not been paying attention. In fact, other than a brief hiccup in early 2016, the filing of lawsuits designed to extract settlements from alleged online pirates has only increased since Prenda went out of business.
Originally published Mar. 15, 2017 by SJD/Fight © Trolls