Sag (2014)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Sag (2014)
Title: Copyright Trolling, An Empirical Study
Author(s): Sag, M.
Year: 2014
Citation: Sag, M. (2014). Copyright Trolling, An Empirical Study. Iowa Law Review, Forthcoming.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The author created a database that includes all copyright cases filed in the all federal district courts circuits between January 1, 2001 and March 31, 2014
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2014
Funder(s):

Abstract

This detailed empirical and doctrinal study of copyright trolling presents new data showing the astonishing rate of growth of multi-defendant John Doe litigation in United States district courts over the past decade. It also presents new evidence of the association between this form of litigation and allegations of infringement concerning pornographic films. Multi-defendant John Doe lawsuits have become the most common form of copyright litigation in several U.S. districts, and in districts such as the Northern District of Illinois, copyright litigation involving pornography accounts for more than half of new cases filed.

This Article highlights a fundamental oversight in the extant literature on copyright trolls. Paralleling discussions in patent law, scholars addressing the troll issue in copyright have applied status-based definitions to determine who is, and is not, a troll. This Article argues that the definition should be conduct-based. Multi-defendant John Doe litigation should be counted as part of copyright trolling whenever these suits are motivated by a desire to turn litigation into an independent revenue stream. Such litigation, when initiated with the aim of turning a profit in the courthouse as opposed to seeking compensation or deterring illegal activity, reflects a kind of systematic opportunism that fits squarely within the concept of litigation trolling. This Article shows that existing status-based definitions of copyright trolls are inapt because they do not account for what is now the most widely practiced from of trolling.

In addition to these empirical and theoretical contributions, this Article explores the features of copyright doctrine that have facilitated the recent explosion in trolling litigation in the form of litigation against John Does. In particular, it shows how statutory damages and permissive joinder make multi-defendant John Doe (MDJD) litigation possible and why allegations of infringement concerning pornographic films are particularly well-suited to this model.

Main Results of the Study

Main results of the study:

  • We are currently witnessing an explosion of copyright trolling in U.S. federal district courts.
  • Copyright trolling in the form of MDJD lawsuits has grown rapidly over the last decade and much of the growth has taken place in the last four years.
  • The data also shows that MDJD litigation is dominated by claims of infringement relating to pornographic films.
  • What little attention has been paid to copyright trolls has largely focused on Righthaven and similar examples — these previous studies have missed the core of the copyright troll phenomenon.
  • The opportunism of copyright trolls is primarily directed towards statutory damages. As the Righthaven example shows, statutory damages can make the pursuit of otherwise inconsequential infringements extremely profitable, more profitable than licensing those uses in advance could ever have been.
  • As the MDJD cases show, statutory damages stack the deck in favor of the plaintiff such that the underlying liability of the defendant is effectively irrelevant to the settlement calculation.

Policy Implications as Stated By Author

Policy implications:

  • One of the core problems with John Doe litigation in copyright is the lack of any real due process. Once identified, rightly or wrongly, the rational defendant will settle in almost every case because of the overwhelming threat of statutory damages and the difficulty of disproving infringement.
  • Statutory damages and the settlements procured in the shadow of statutory damages seem arbitrary and disproportionate to the underlying offense of illegal downloading.
  • The technology used to identify suspected infringers raises the specter of surveillance, an increasingly sensitive issue in these post-Snowden times.
  • The use of joinder and early discovery to extract account holder information from ISPs while avoiding substantial filing fees looks very much like the exploitation of legal loopholes.
  • Even overlooking the sanctionable conduct of some of the more prominent attorneys involved in the pornography cases, the feeling that settlements are procured through something close to extortion is hard to displace.
  • Illegal downloading harms copyright owners and reduces their incentives to invest in the production of creative works, but avoiding this harm or being compensated for it has little or nothing to do with the current wave of John Doe litigation that is deluging federal district courts.
  • These cases are about monetizing infringement over and above deterrence and compensation. Monetizing infringement is perfectly legal, but unlike the pursuit of deterrence and compensation it is very hard to square with the motivating purpose of copyright law: promoting social progress.
  • Reform proposals include: reasonable statutory damages; denying joinder and severing cases; conditional joinder and other safeguards.

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Green-tick.png
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 42900
Level of aggregation: Copyright cases filed in US District Courts
Period of material under study: 2001-2014