Many interested in the IP and Tech fields have heard of the term “Patent Troll” to refer to a rights holder who may be overly-litigious, aggressive in enforcement, or excessively alleges patent infringements for the sake of coercing money and tying people in ligation.
In the past few years, however, a similar strategy has developed worldwide in the field of copyright, as a way to exploit modern technology and take advantage of our modern culture of illegal downloading. These people, dubbed as “Copyright Trolls,” have commonly used a technique of mass litigations to try to coerce individuals into cash settlements. Often the companies initiating these lawsuits are not the original copyright owners, and instead buy up copyrights for the sole purpose of locating infringers and enforcing the rights.
Background and General Strategy Employed
A German IT company called GuardaLey developed technology capable of capturing IP addresses based on real time monitoring of torrent and peer-to-peer software. GuardaLey, who utilized this technology in Germany, shared their technology with the U.S. company, U.S. Copyright Group (“USCG”), which is run by the law firm Dunlap, Grubb & Weaver.
Taking advantage of GuardaLey’s technology, USCG began filing mass lawsuits against “John Doe” Defendants based on the IP addresses of individuals gathered from the IP monitoring software. Later, with litigation in place, USCG would subpoena the various Internet Service providers (“ISPs”) for their records pertaining to the identity of the John Does.
Upon uncovering identifying information of an individual, USCG would then send out thousands of nearly identical demand letters threatening litigation unless a prompt payment for a specified amount (typically $1,500 – $2,500) was sent to USCG to serve as a settlement.
In these instances of mass demand letters being sent out, litigation is seldom actually pursued, if at all. More often than not, the individuals targeted will either pay to settle, ignore the demand, or more recently, hire a lawyer and attempt to fight it. As far as the USCG and similar companies are concerned, if a person does not pay, the company will move on to the next person. This method of operation is purely designed for attaining a settlement.
Companies Participating in this Practice
There are several companies utilizing this tactic, such as the U.S. Copyright Group in the film industry, Malibu Media in the porn industry, and Righthaven in the news media industry. Many of these companies are either backed or led by lawyers and law firms who use the companies to buy up rights in varying sectors for the sole purpose of enforcing alleged infringements. Righthaven’s behavior was a clear example of this practice, wherein they purchased the copyright of news articles in bulk and proceeded to send out demand letters to website owners who were using the articles.
Most recently, a group who called themselves the Internet Copyright Law Enforcement Agency (“ICLEA”) set out on a shameless Copyright Trolling expedition by not only using the basic scheme outlined above, but also by ramping up their settlement letters to include language of pending criminal charges (not just the civil charges commonly included).
ICLEA claimed the copyright in sound recordings was being infringed, specifically through the use of torrents to download mp3s. The unique aspect of the ICLEA demand letters was their ability to send notices directly to alleged infringers based on IP addresses, without having to first subpoena an ISP. This means that ICLEA directly linked the allegedly infringing IP addresses to personal information without first obtaining the information from an ISP. It is unclear at this point exactly how they obtained the information.
As of February 22nd of this year, it appears that the ICLEA website has been shutdown after being exposed for their practices, but the manner in which they chose to attack individuals is rather alarming. In addition to utilizing a name suggestive of a Federal Government agency, claiming a partnership with law enforcement, and renting a virtual office space in Washington D.C., by threatening criminal conviction and using extreme coercion in their letters, the ICLEA have seemed to cross the line of extra-legality on which these copyright infringement tactics often border.
Impact on the Music Industry
With the advent of modern technology and peer-to-peer file sharing, the music industry has seen waves of copyright enforcement movements, most notably the campaigns spearheaded by the Recording Industry Association of America (“RIAA”). Despite suing well over 20,000 people, the RIAA’s efforts have had little to no effect on slowing infringement through peer-to-peer software. Now, after years of litigation and heavy criticism, the RIAA has to slowly begun to abandon their mass litigation practices.
Even though the RIAA has utilized mass litigations and sent out countless settlement letters to infringers, they did have one fact on their side – they generally had legitimate claims and goals in enforcing copyrights and curbing infringing behavior.
Copyright Trolls, on the other hand, have a goal which is purely monetary and founded on questionable grounds. Where the RIAA has been unsuccessful, these companies have stepped in to utilize proven methods of enforcement in a deceptive manner to essentially create an alternative revenue stream. With the music industry taking one of the biggest hits as a result of peer-to-peer software usage, it would not be surprising to see more and more companies enforcing rights this way.
Defending Against the Claims
Throughout the years, as awareness of these Copyright Trolls has developed, groups such as the ACLU and EFF have staunchly defended these allegations and suits on several grounds, including non-infringement, fair-use, abuse of process, copyright misuse, defamation, extortion, mail and wire fraud, and other claims.
In addition to those defenses, one major issue brought up in several cases is how ineffectual linking IP addresses to the ISP subscribers based on IP monitoring software can be as an evidentiary basis. While the monitoring software identifies an IP address, it does not prove actual infringement by a specific individual, and often an innocent individual may easily be caught in a widely-cast net. As a result, many claims of infringement are often tenuous in proving that the actual ISP subscriber was the infringer in question.
Slowly, over time, many advocate groups and lawyers defending against these claims have developed traction in preventing these lawsuits from attacking unsuspecting individuals, but the battles in the courts continue. The evolution of Copyright Trolling has now led to a progressively blurring line between legitimate copyright enforcement and indiscriminate litigious “shakedown” tactics.