What kind of company makes no creative works but earns millions of dollars a year suing random people on the internet in the name of copyright law? You guessed it, a copyright troll. Much like patent trolls
, copyright trolls are entities that do not create or distribute creative content, yet acquire copyrights to creative works in order to file lawsuits against accused infringers. Their business model is based on the threat of copyright litigation against internet users to obtain a quick settlement. As the damages for copyright infringement are as high as $150,000 per infringed work, this type of threat is unfortunately effective in strong-arming individuals into handing over hundred to thousands of dollars to avoid litigation. 17 U.S.C. § 504(c)
“[Individuals] using BitTorrent clients to exchange allegedly infringing files is the behavior which most commonly leads to being targeted,” says attorney Ben Justus, a partner at LP & Justus who represents defendants in copyright litigation cases. Justus says that movies, pornography, and software are the most often tracked. “Also targeted are individuals and companies that post photographs or written content on their blogs and websites without the permission of the owner of the rights to that content,” he says.
Justus says that copyright trolls employ a couple of different tactics. Some begin by sending notices through internet service providers (ISPs) to potential infringers, threatening to file copyright infringement claims against these individuals. The letters state that infringers can avoid litigation if they settle quickly by providing the company with a cash payment. These payments can range from $30 to $15,000 in some cases, depending on what type of work is allegedly infringed.
Other trolls begin by filing a lawsuit. Surprisingly, many targeted individuals are unaware that they are involved in legal proceedings until well after the proceeding has begun. After a suit is filed, a court-sanctioned subpoena is issued to the ISP, demanding that the ISP turn over the allegedly infringing user name and address. Only when they receive a notice from the ISP is the user made aware of the suit. “One of the most remarkable things about standard ‘Doe copyright lawsuit practices’ is that the accused individual is not given a copy of the actual complaint until well into the course of the proceeding,” Justus says, referring to the situation where the copyright troll uses a placeholder name “Doe” until they receive the true name of the individual from the ISP through a subpoena.
Justus goes on to say that the reason individuals are often unaware of the proceedings until they’re well under is because trolls use an “ex parte” discovery process to issue subpoenas to the ISPs, which means that the defendant is not notified of the proceedings at all. Further, he says that, “[E]ven after the ISP notifies the customer that a subpoena was served, the subscriber is usually not given a copy of the lawsuit by the ISP, and even after the troll’s lawyer sends a demand letter, they typically do not explain the allegations of the lawsuit in any detail.”
How Copyright Litigators are Fighting Back One of the ways Justus is disrupting copyright troll tactics is by tracking the hundreds of copyright lawsuits filed by trolls using software. By automatically tracking lawsuits, Justus says that he and other attorneys can watch trends in copyright case filings and motion practices as they develop in particular jurisdictions and nation-wide. Because there is a very limited amount of binding precedent, Justus says that many judges are still trying to determine how to best manage these types of lawsuits and balance the competing interests of the parties.
“Therefore,” he says, “knowledge [of] beneficial trial court decisions in one venue can help an individual successfully respond to troll tactics in a different one.”
One tool in Justus’ arsenal for tracking copyright troll lawsuits is legal research platform, Docket Alarm. “Docket Alarm is a valuable tool for attorneys and other individuals to learn about the actual allegations of a lawsuit that is not otherwise provided during the early phases of the proceeding,” says Justus. Docket Alarm allows attorneys to track multiple parties and receive updates when that party files a lawsuit or otherwise becomes involved in litigation. For example, users can set up tracking for entities like Voltage Pictures, LLC, and can have alerts continuously delivered to their inbox. Thus, copyright litigators can set up alerts on known trolls in order to see overall litigation trends, in turn allowing them to adapt and tailor their strategies to anticipate troll tactics.
For individuals who find themselves on the receiving end of a demand letter or a notice of a subpoena from an ISP, Justus strongly recommends contacting a lawyer that is knowledgeable about the particular troll in question, instead of relying on advice from websites and blogs. Justus cautions individuals against ignoring demands or subpoenas in the hope that they will go away: “People who [ignore demands or subpoenas] overlook the increasing settlement demands that are made as the trolls engage in additional legal procedures, driving up the cost of ultimate resolution.” For other attorneys and individuals interested in tracking these developments, Justus recommends Docket Alarm to stay up to date.
Benjamin Justus is an experienced copyright litigator and creator of http://www.troll-defense.com, a site dedicated to educating the public about copyright trolls and their practices.
About Docket Alarm:
Docket Alarm is a comprehensive legal research and analytics platform helping attorneys enhance their practices. Users can search for dockets and documents across Federal Courts, Appellate Courts, the ITC and the PTAB in one platform. Users can also track litigation updates through email alerts. Sign up today at www.docketalarm.com.