Copyright Trolling, An Empirical Study

(ProQuest: ... denotes formulae omitted.)I. INTRODUCTIONPatent trolls are in the news,1 and they have been high on the agenda of intellectual property policy makers and academics for over a decade now.2 Those targeted by patent aggregators and patent holding companies accounted for nearly 38% of all patent defendants.3 Depending on your definition of a patent troll, the incidence of patent troll litigation may be increasing.4 The President has condemned patent trolls,5 and new legislation targets patent trolls.6 While patent trolls hog the limelight, a particular type of copyright troll has been taking over the dockets of several United States district courts, and yet copyright trolls have received comparatively little attention in policy and academic circles. District court judges have commented on how copyright litigation is changing,7 but this is the first systematic in-depth analysis of the data.8This empirical study of copyright trolling presents new data that reveals the astonishing growth of a particular kind of copyright trolling-the multidefendant John Doe ("MDJD") lawsuit that alleges copyright violation through the file sharing software known as BitTorrent. Generally, these suits take the form of "Copyright Owner v. John Does 1-N" where N is a large number.9 MDJD suits are not just any form of copyright trolling, they are the dominant form. In 2013, these MDJD suits were the majority of copyright cases filed in 19 of the 92 federal districts.10Defining exactly what makes an individual or an organization a troll is inevitably controversial.11 The essence of trolling is that the plaintiff is more focused on the business of litigation than on selling a product or service or licensing their IP to third parties to sell a product or a service. The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of defendants, seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim. This is a familiar pattern in patent law where trolls thrive by opportunistically taking advantage of the uncertain scope of patent claims, the poor quality of patent examination, the high cost of litigation, and the asymmetric stakes faced by the patent assertion entities and the businesses they target.12As this Article demonstrates, a similar numbers game increasingly dominates copyright litigation. Of the 3817 copyright law suits filed in 2013, over 43% were against John Does and more than three-quarters of those related to pornography.13 The economic viability of MDJD litigation depends on suing as many defendants as possible in a single action to keep costs low and leveraging the threat of statutory damages in order to maximize the flow of settlement dollars. As discussed in more detail in Part II, these suits are a form of copyright trolling.Copyright trolls may draw inspiration from their patent counterparts, but they are a product of two unique features of copyright law: the first is the incentives created by statutory damages; the second is the permissive approach to joinder taken by many district courts in file-sharing cases.14 The theory behind these MDJD lawsuits is that individuals who share the same movies and other copyrighted works via BitTorrent can be joined together in a single copyright lawsuit.15 Litigating a case all the way to trial against thousands of individuals in the same suit would be ridiculous and unwieldy,16 but these suits are not filed with an actual hearing in mind. MDJD lawsuits are filed to take advantage of court-ordered discovery to break the veil of anonymity that separates IP addresses from the account information of actual human beings.17 They are means to compel Internet Service Providers ("ISPs") such as Comcast and AT&T to give plaintiff copyright owners the names and addresses that match the IP addresses that they already have.After obtaining the names and addresses of account holders suspected of participating in a BitTorrent swarm, the plaintiff can get to work negotiating settlements. …