Defense Against the Dark Arts of Copyright Trolling

Abstract

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. This practice is a sub-set of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet technology. The plaintiffs bringing these cases target hundreds or thousands of defendants nationwide and seek quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the merits of the claim.

We report new empirical data on the continued growth of this form of copyright trolling in the United States. We also undertake a detailed analysis of the legal and factual underpinnings of these cases. Despite their underlying weakness, plaintiffs have exploited information asymmetries, the high cost of federal court litigation, and the extravagant threat of statutory damages for copyright infringement to leverage settlements from the guilty and the innocent alike. We analyze the weaknesses of the typical plaintiff’s case and integrate that analysis into a strategy roadmap for defense lawyers and pro se defendants. In short, as our title suggests, we provide a useful guide to the defense against the dark arts of copyright trolling.

Note: Note that this version contains substantive revisions to the versions posted prior to March 28, 2016.

Keywords: Copyright, Copyright trolls, Statutory damages, Litigation, Litigation strategy, Civil procedure, Pleading standards, Joinder, File-sharing, BitTorrent, Public interest litigation

JEL Classification: K19, K41