Copyright Trolls and the Common Law
100 Iowa Law Review Bulletin 77 (2015)
11 Pages Posted: 7 Apr 2015 Last revised: 25 Apr 2015
Date Written: April 6, 2015
Copyright trolls have been treated as a kind of IP boogeyman — an apocryphal malevolent occupying the realm of legal nightmares. But Matthew Sag’s important new work, “Copyright Trolling, An Empirical Study,” helps bring copyright trolls out of the dark. In a way that only sharp data can, Sag’s research serves as a wakeup call to anyone who thinks that litigation trolling remains a rare and inconsequential burden on the U.S. copyright regime and federal courts.
Sag’s research draws from his database of all federal district court copyright lawsuits filed between January 1, 2001 and March 31, 2014. Within that time period, Sag focused on a form of trolling that has come to dominate the federal copyright docket — the Multi-Defendant John Doe (“MDJD”) lawsuit — and discovered a seismic shift in the nature of copyright lawsuits. Though almost unheard of in 2001 and rare before 2010, 43% of copyright lawsuits filed in 2013 were against John Does; most of those were related to pornography. Moreover, MDJD lawsuits constituted the majority of copyright cases in “19 of the 92 federal district courts” and “in the Third, Fourth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits in 2013.” Sag points to two key factors: the availability of statutory damages and the laxness of joinder standards in copyright infringement actions.
Indirectly, Sag also sheds light on the question of who should redress copyright trolling: Congress or courts? By placing copyright trolls within the tradition of opportunistic plaintiffs and helping quantify the MDJD form, Sag reminds us that copyright trolls have a transient nature. As I discuss below, amorphous trolling forms are best addressed through ad hoc determinations rather than per se classifications. This understanding urges a judicial approach over a legislative one.
Keywords: Copyright, Intellectual Property, Trolls, Common Law, Litigation, Federal Courts, Statutory Damages, Joinder
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