Copyright Trolling An Empirical Study of “John Doe” Litigation Prof. Matthew Sag, Loyola University Chicago School of Law July 10, 2014.

Copyright TrollingAn Empirical Study of “John Doe” Litigation

Prof. Matthew Sag, Loyola University Chicago School of Law

July 10, 2014

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Background I

Copyright is a private right, not typically enforced by the State. U.S. Copyright allows for statutory damages without evidence of copyright holder’s loss or infringer’s unjust enrichment.

BitTorrent is a very efficient P2P file sharing system capable of lawful and unlawful uses.

A BitTorrent swarm usually has 1000s of participants. Technologically sophisticated copyright owners can identify participants by IP address.

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Background II

John Doe Lawsuits Plaintiff files suit in the form “Digital Sin v. Does 1 through 5000”

– One filing fee ($350)– Cases are not intended to go to trial

Plaintiff files a motion for early discovery to obtain names + addresses from ISPs

Plaintiff demands settlement (threatens exposure, statutory damages)

– Does not usually bother to serve defendants so named– $2,000 to $4,000 settlements are common

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How Common Are John Doe Copyright Suits?

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Copyright Trolling

DATA

41,769 cases Filed between January 01, 2001 and March 31, 2014 Nature of Suit = Copyright (820) All U.S. District Courts (does not include appeal dockets)

John Doe Search for “doe” “does” + manual review

Number of Does From case title, e.g. “Digital Sin, Inc v. Does 1-208” + hand correction

on an ad hoc basis.

Pornography Plaintiff is a known pornographer, Google, IMDB All/nothing assumption

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Copyright Trolling

Data Sources: PACER (maintained by the Administrative Office of the U.S. Courts)Bloomberglaw (dockets)IMDBGoogle

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Implications

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Implications

1. Are these plaintiffs “trolls”?2. The synergy of statutory damages + joinder + leverage

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= Troll?

Copyright trolls, patent trolls Patent literature focuses on entity status, e.g. “non-practicing

entity” synonymous with troll in the eyes of many. Others have applied this same understanding to copyright, e.g.

Righthaven (NPE, Sham Owner) suits against blogs etc.

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= Troll?

Not illegal, many cases have merit Troll should mean something other than meritless in the R.11

sense Meritless in terms of the objectives of the system Litigation not driven by the merits (the threat of statutory

damages means merits don’t matter that much)

Motive RIAA used John Doe suits as deterrence/education Current trend is to use John Doe suits to ‘monetize

infringement’

Methods Threat of public exposure = shakedown

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= Troll?

A troll is a systematic opportunist

Any definition of trolling that does not capture extortion-driven pornography related John Doe litigation is not a very good definition

Opportunism is not confined to a particular economic structure such as “non-practicing entity”

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Even if pornography is the problem, reform of statutory damages is the solution.

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Statutory damages

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Statutory damages

The corrosive effect of statutory damages Statutory damages range from $750 to $150,000 No requirement of actual damage Original intent was to deter commercial infringers Now seen as a pot of gold at the end of the copyright rainbow

Court house > market place For some plaintiffs statutory damages offer rewards significantly

greater than they could ever hope to obtain from voluntary market transactions

The lure of easy money seems to attract lawyers with questionable ethics

– See paper for citations to various sanctions.

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Joinder

The significance of procedural rules relating to joinder Massive John Doe suits reduce plaintiff costs A pretext for discovery Provide a window of opportunity for court supervision

– … but note that joinder is becoming more difficult and less significant

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Individual Doe Defendants in John Doe Copyright Cases 2001 – 2014

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Not so many mega suits

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48.75%

41.27%

40.77%

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¡Muchas Gracias!