Copyright Trolls and Presumptively Fair Uses
76 Pages Posted: 15 Mar 2013 Last revised: 7 Jan 2014
Date Written: December 12, 2013
The “troll” label, long a staple of the patent system, had little connotation and even less application in the copyright context until 2010. That is when the so-called copyright troll emerged to acquire unenforced copyrights being infringed in the digital marketplace. Trolls threaten to chill speech and discourage innovation by exploiting copyright incentives without contributing to the market for creative works. Yet, despite the copyright troll’s conspicuous arrival, little scholarship has discussed how trolls undermine copyright policy goals or potential measures for mitigating the harms they impose.
This Article is the first to hone in on the fair use doctrine as copyright law’s internal limitation on the enforcement-only business model. Fair use’s judicial development predates the original United States copyright law and was codified in the 1976 Copyright Act, which neither expanded nor limited the scope of this equitable defense to infringement. The doctrine remains flexible and robust — and well-tailored to raising a presumptive bar to troll-related litigation. After defining the “copyright troll” and documenting its quick rise, this Article argues that, in troll-related litigation, burden shifting is warranted under traditional fair use analysis for three reasons: (1) there is no market harm because the troll has no market other than litigation; (2) the secondary use is for a different purpose and thus transformative; and (3) courts may excuse infringements because enforcement would not support the objectives of copyright law.
Keywords: copyright trolls, fair use, infringement, statutory damages, incentives, standing, champerty, first amendment, public policy
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