Sag and Haskell (2018)
Contents
Source Details
| Sag and Haskell (2018) | |
| Title: | Defense Against the Dark Arts of Copyright Trolling |
| Author(s): | Sag, M., Haskell, J. |
| Year: | 2018 |
| Citation: | Sag, M. and Haskell, J. (2018) Defense Against the Dark Arts of Copyright Trolling. 103 Iowa Law Review 571 |
| Link(s): | Open Access |
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| About the Data | |
| Data Description: | The study builds on data gathered from an earlier study on copyright trolling, Sag (2015), detailing the frequency of multi-defendant John Doe copyright cases filed between 1994 - 2016. |
| Data Type: | Secondary data |
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| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
“In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. This practice is a sub-set of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet technology. The plaintiffs bringing these cases target hundreds or thousands of defendants nationwide and seek quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the merits of the claim.
We report new empirical data on the continued growth of this form of copyright trolling in the United States. We also undertake a detailed analysis of the legal and factual underpinnings of these cases. Despite their underlying weakness, plaintiffs have exploited information asymmetries, the high cost of federal court litigation, and the extravagant threat of statutory damages for copyright infringement to leverage settlements from the guilty and the innocent alike. We analyze the weaknesses of the typical plaintiff’s case and integrate that analysis into a strategy roadmap for defense lawyers and pro se defendants. In short, as our title suggests, we provide a useful guide to the defense against the dark arts of copyright trolling.”
Main Results of the Study
The study finds two distinct waves of multi-defendant Joe Doe litigation: the first between 2004 - 2008 (concurrent with an RIAA campaign of enforcement), and the second from 2010 - 2016. The latter is referred to as the ‘BitTorrent monetisation era’ which seeks to monetise infringement as opposed to pursuing compensation or deterrence.
Cases with John Doe defendants account for almost 50% of the federal copyright docket between 2014 and 2016, with 6,483 individuals being targeted in 2016 alone. By contrast, complaints are filed by a small, concentrated number of plaintiffs, with one company accounting for over 60% of the John Doe cases filed between 2015-2016 alone.
Policy Implications as Stated By Author
Whilst the study does not offer any explicit policy recommendations, it provides illustrations of the typical weaknesses found in plaintiff’s cases in order to enable better defence against copyright trolling. Much of these weaknesses relate to the credibility of ‘black box’ technologies.
Coverage of Study
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