IP Trolls in a Pirate's World

By: Nathan Hakimi

Magical Mystery Trolls

As everyone knows, Trolls are elusive, greedy creatures. They lurk under bridges and in caves, and are adept at “magically cursing” people.¹ Unlike their more physically intimidating cousins – ogres – trolls are a highly intelligent breed, although they can be outsmarted if you employ clever tactics.² The scientific revolution, with its insistence on rigorous skepticism, has indeed done just that – laying the Troll of yesteryear to rest, simply by convincing people not to believe in him.

Cleverly, however, the Troll has well revived himself in the Internet Era. Instead of meeting people under bridges and in caves, the troll now shows up in online chat rooms and forums, posting “deliberately provocative statements,” with the sole intention of “causing disruption and argument.”³

In a perhaps less widely infamous but just as impressive gambit, the troll has also reinvented himself in the post-magical world as a purveyor of Intellectual Property. Just as he “trolls” people online by posting statements without any genuine intention to contribute meaningfully to a discussion, the “IP Troll” secures intellectual property without ever intending to develop products or services. Rather, his only interest is in enforcing his ownership rights against others, by engaging in infringement suits or threats, to extort monetary judgments and settlements from unwary parties.

That, at least, is the common understanding of an IP Troll. It is largely derived from knowledge of one its sub-breeds – Patent Trolls. However, there are as many types of IP Trolls as there are types of IP: Hard and Soft.⁴ This article will herein focus on the latter, but the distinction is important.

The Many Breeds of Troll

While both “Patent Trolls” and “Copyright Trolls” are the subject of disdain (hence the unflattering moniker), each can actually be easily defended in principle. By their varying natures, however, the defense varies. “Hard IP Trolls,” i.e., Patent Trolls, possess patents without ever developing or selling products to be protected thereby. They then enforce their IP against infringers to extract judgments. “Soft IP Trolls,” i.e. Copyright Trolls, on the other hand, own IP which they actually market and sell. They are “trolls” only inasmuch as they employ threatening and somewhat underhanded tactics to extort settlements from infringers. (It is unclear whether there is such a thing as a Trademark Troll.)

Also known as “non-practicing entities,” Patent Trolls are thought to be the bane of “real” patent holders’ existence.⁵They profit from the legalities of the intellectual property system, while ostensibly contributing nothing to the ecosystem of actual innovation. That being said, there is still a principled defense of Patent Trolls.⁶ The analysis typically goes as follows: Patent Trolls control IP, which they enforce against other parties not merely to get judgments in suit, but to gain licensing royalties. When they do so, they separate control of underlying patents from rights to develop those patents, thereby forming a certain free-market symbiosis. A firm whose primary business is to collect and control patents, can thus in a way become an efficient market player.⁷ It enables other firms to develop products and services without having to maintain development, control, and management of IP. They merely must pay a royalty and both sides profit. This yields a certain market efficiency.⁸

Copyright Trolls can also be defended somewhat on principle, albeit on a different principle. While Patent Trolls are treated with general dislike but earn a modicum of respect, Copyright Trolls seem to be widely and viscerally reviled,⁹ even though really, they seem even better off morally than Patent Trolls. To understand what Copyright Trolls are, and why they are so vilified, we must investigate why Copyright Trolls exist and what they do.

Wait, But Aren’t Pirates Really Stealing?

Copyright Trolls are not trolls because they maintain and enforce intellectual property without using it. Rather, they are so named because of the aggressive and somewhat under-handed tactics they typically employ when enforcing the IP which they actually do develop and use.¹⁰ And their targets are, for the most part, another famous semi-mythical character, namely, Pirates.

A typical scenario goes like this:¹¹You illegally download a movie from the Internet. The studio that produced that film obtains the IP addresses of all those who accessed the files through FTP or Torrent sites, as well as the ISP providing service to those users. The film company then sues the ISP and a long list of “John Doe” users, intending not to ever legitimately litigate against either of them, but merely to force the ISP through subpoena to identify the John Doe user who was operating from the IP address at the time. Upon obtaining that information, with your identity and contact information in hand, the studio sends you a threatening letter,¹² asking for a certain sum in exchange for their gracious willingness not to have you served a summons and your name officially added to the suit. You get scared and cough up. Trolling complete.

Most commonly, these companies are purveyors of pornography, and the victims, consumers of the same.¹³ The producers rely on the likelihood that a Porn Pirate, rather than having his identity disclosed in connection with a lawsuit over downloading such content, would prefer to pay off the studio in the form of a few thousand dollars’ cash settlement. Trolls win, Pirates lose. Right?

It’s a Pirate’s World, After All

It has to be reiterated at this point again that technically, the Copyright Trolls are at least initially right. Pirating film and music online is stealing. Of course, ever since Napster first came to the fore in 1999, with programs like Kazaa and LimeWire following shortly thereafter, and BitTorrent technology later coming closely on their heels, people have, to a certain extent, taken for granted that they can gain access to multimedia content, produced by artists and studios, at least instantly, if not for free. Online streaming services like iTunes, Hulu, and Netflix have largely satisfied the craving for easy access to a wide spectrum content by way of the Internet. But there are still many who believe it is their right to pirate, or who otherwise defend pirating on principle for various reasons.¹⁴

On the other side, copyright holders spend plenty of money to generate content and expect to protect their investments through this country’s intellectual property laws. And only one of the motives of copyright infringement litigation is the attainment of funds. Another major purpose is deterrence. A recent paper by Matthew Sag at Loyola University Chicago Law School, reviewed IP litigation in the U.S. district courts using data from the past two decades, covering over 190,000 filings.¹⁵ The paper divides lawsuits into two categories – deterrence and monetization.¹⁶The first category, primarily made up of lawsuits filed by the RIAA (Recording Industry Association of American), targets users of software such as Kazaa and LimeWire who download and share music. The RIAA is not interested in profiting off file-sharers, but is interested in cutting down on pirating. The second category consists of, essentially, Copyright Trolls, who are (as stated) largely producers in the adult movie sector. Sag notes that they deliberately scour file-sharing networks and target users with the aim of extracting cash settlements, essentially monetizing the breach.¹⁷ And indeed Sag finds that, “to the extent that the rate of copyright litigation has increased over the last two decades, that increase appears to be entirely attributable to lawsuits against anonymous Internet file sharers [a.k.a. Copyright Trolling].”¹⁸

Still, either way, the Copyright Trolls have the upper-hand on first glance. They are merely protecting their legitimately owned and marketed intellectual property, lewd or otherwise. This legitimacy is somewhat withered away, however, on the garish display of the methods by which they accomplish the objective. Their tactics, however, are lately as we shall see, backfiring.

It’s a Pirate’s World, After All

Luckily for victims of copyright trolling, the “legal” tactics employed by Troll studios to catch Pirates are finally catching resistance. In Ohio, a district judge named James S. Gwin ruled in 2013 that Voltage Pictures, the plaintiff in a group of four Oregon cases, improperly linked 197 defendants into one filing.¹⁹ The judge held that the cases had to be filed individually, each with its own filing fee.²⁰ Such a ruling in and of itself is a big blow to Copyright Troll litigation. In his order, Gwin mentioned the troublesome nature of Copyright Troll lawsuits in general:

“Courts have been troubled by what amounts to be a new business model employed by production companies ‘misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlement, rather than ultimately serve process and litigate the claims.’ This unseemly practice is made worse by the frequent practice of joining hundreds or thousands of defendants in a suit, saving plaintiffs tens of thousands of dollars in filing fees. It is in this environment where courts must take every caution to ensure that the keys to the doors of discovery are not blithely given to parties with other intentions.”²¹

Sometimes, pushback comes from the ISPs themselves, which are named as co-defendants with the many John Doe users, and of which it is demanded that it release the identifying contact information of the Doe user. Some ISPs more readily participate in this procedure than others. However, in AF Holdings, LLC v. Does 1-1058, a district court granted the plaintiff AF Holdings leave to take immediate discovery, enabling them to serve five ISPs with subpoenas compelling them to turn over the names, addresses, telephone numbers, and email addresses of the underlying subscribers.²²But the ISPs stood up for themselves and refused to comply with discovery orders. They moved to quash the orders on an “undue burden” basis, arguing that the proponents of the subpoenas were likely to obtain information of few, if any, defendants over whom the Court would have personal jurisdiction, and because joinder of all those defendants was at any rate improper.²³ The district court rejected these concerns as premature, but certified the question for immediate appeal. On appeal, the Federal Appellate D.C. Circuit overturned the district court on both issues. They found that a plaintiff must “have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendants],” and that because the IP addresses in question were located in many geographic areas outside of Washington, D.C., and that at least three of the ISPs did not even serve the D.C. area, there was no good faith belief that the court would have personal jurisdiction over the targets of AF Holding’s discovery request.²⁴ Another certain victory for the Pirates! (Or, against the Trolls).

Regarding joinder, the legal question of whether two defendants can or must be sued together in the same lawsuit, the film producer argued that because the 1,058 John Doe defendants used BitTorrent to download the file[s] in question, their downloads were part of the same transaction or occurrence, thus fulfilling one of the rules the law uses to say when defendants can be properly joined. But the D.C. Circuit rejected this too, based on its analysis of the way BitTorrent works: two users downloading a given file can in theory be uploading and/or downloading the same file from each other, but the transactions in this case were temporally spread so far (5 months apart) that the likelihood of all of these 1,058 users having downloaded the movie in question together was too remote for this to be legally substantial enough to support joinder.²⁵In doing so the D.C. Circuit expressed its agreements with several other district and circuit courts around the country.²⁶ Down with the Trolls!

It has become further evident that sympathy is being given by the courts as a whole to targets of Copyright Trolling, from signs that they are not as quick as they once were to oblige troll litigants when it comes to granting subpoenas.²⁷

Additionally, there is a strong cultural lashing out, demonstrated from the mere name of many websites, such as “dietrolldie.com,” “fightcopyrighttrolls.com,” “troll-defense.com,” and the “Electronic Frontier Foundation” (eff.org), all of which have made themselves available as resources for victims of copyright trolling. Several law firms have also started advertising specializations in copyright litigation defense specifically.²⁸

Arguably, though, the most important attack on the trolls goes back to Judge Gwin, which is that the film producers in the Copyright Litigation “cases” are not actually intending to litigate at all, but just to utilize (or “abuse”) the discovery process to get names of thousands of individual downloaders, thereupon threatening them into settlement before even naming them as defendants. The courts and the law do not appreciate their system being manipulated for quick gain this way. And that is what the legal community stands up to Copyright Trolls for.

Of course, guaranteed, the Trolls will evolve their tactics in the ever-unfolding effort to outsmart their prey. Are they not entitled to crackdown on digital theft of their material? How exactly are they supposed to go about doing that in a legitimate and non-troll-y way given the legal and technological realities governing the underlying situation? And the dance goes on.

Conclusion, and Post-Note

Our modern, digital era has seen the resuscitation of the Troll in many guises. What is the connection between the magical curser of yesteryear, the sly online forum poster, the non-practicing patent entity, and the porn film producer? What exactly makes a Troll a “troll”?

Perhaps it’s a combination of greed, subtlety, and underhanded tactics. As emblemized best by the Forum Troll, there may also be an element of malice, or a certain pleasure in winning and dominating through sneaky and dubiously but perhaps technically kosher machinations. This is likely the common thread between the two IP Trolls, and the reason they are so reviled even though, as we have seen, they each perform theoretically defensible functions. (Patent Trolling was not deeply analyzed in this article but seemingly it is also aggressive and manipulative in its own way).

The takeaway lesson is that the trends in Soft IP (Copyright) Troll jurisprudence, and perhaps the example one could draw from how to best react to Forum Trollers, teach us that better even still than forgetting about the Troll or denying he exists, is to be brave and confront him directly. Just be sure you have your own strong magic and a clear grasp of the technical legalities he is trying to use against you.

But, finally, lest the Trolls not have their own last laugh, this article would be remiss if it did not take notice of the recent release of a new animated children’s film by DreamWorks – which has been the subject of its own copyright transactions and litigation²⁹ – named after and presenting a very friendly and suspiciously appealing-looking breed of – you guessed it – Trolls.³⁰

[1] Nimisha Kaushik, “Difference Between Ogre and Troll,” DifferenceBetween.Net (Dec. 15, 2011), http://www.differencebetween.net/miscellaneous/entertainment-miscellaneous/difference-between-ogre-and-troll/.

[2] Id.

[3] Urban Dictionary, Troll, http://www.urbandictionary.com/define.php?term=troll (last visited Nov. 20, 2016).

[4] See generally, Wikipedia, Patent troll, https://en.wikipedia.org/wiki/Patent_troll/ (last visited Nov. 20, 2016); Wikipedia, Trademark troll, https://en.wikipedia.org/wiki/Trademark_troll/ (last visited Nov. 20, 2016); Wikipedia, Copyright troll, https://en.wikipedia.org/wiki/Copyright_troll/ (last visited Nov. 20, 2016).

[5] Pascal Emmanuel-Gobry, How To Kill Patent Trolls Once And For All, The Week (Apr. 21, 2016), www.theweek.com/articles/619643/how-kill-patent-trolls-once-all.

[6] See, e.g., Erin Fuchs, In Defense Of The Dreaded ‘Patent Troll’, Business Insider (Nov. 27, 2012), www.businessinsider.com/in-defense-of-the-dreaded-patent-troll-2012-11; Ian Maxwell, In Defense of Patent Trolls, IP Strategy (May 29, 2013), https://ipstrategy.com/2013/05/29/in-defense-of-patent-trolls/; Paul Schneck, Not So Scary, After All: In Defense Of Patent Trolls, Forbes (Feb. 1, 2013), http://www.forbes.com/sites/ciocentral/2013/02/01/not-so-scary-after-all-in-defense-of-patent-trolls/.

[7] Id.

[8] Tim Pohlmann and Marieke Opitz, The Patent Troll Business: An Efficient model to enforce IPR?, Munich Personal RePEc Archive Paper No. 27342, (December 17, 2010).

[9] See, e.g., such websites as “www.dietrolldie.com,” and “www.fightcopyrighttrolls.com” [10] John Doe, Sued For Downloading Porn? One Victim’s Answer, CT Watchdog (Mar. 10, 2012), http://ctwatchdog.com/finance/sued-for-downloading-porn-one-victims-answer.

[10] John Doe, Sued For Downloading Porn? One Victim’s Answer, CT Watchdog (Mar. 10, 2012), http://ctwatchdog.com/finance/sued-for-downloading-porn-one-victims-answer

[11] Jorge Espinosa, Don’t Underestimate the Copyright Trolls, LAW360 (Jan. 22, 2015), http://www.law360.com/articles/612235/don-t-underestimate-the-copyright-trolls.

[12] See, e.g., https://dietrolldie.files.wordpress.com/2014/07/countrymannv_settleltr_01149co.pdf.

[13] Anatomy of Copyright Troll Lawsuits, Aaron Kelly Law (Jan. 12, 2012), http://www.aaronkellylaw.com/copyright-troll-lawsuits/.

[14] See, e.g., Debate.org, “Is Internet Piracy a Bad Thing?” Asked by: TheEnergyHippo (42% Say Yes, 58% Say No), http://www.debate.org/opinions/is-internet-piracy-a-bad-thing (last visited Nov. 20, 2016); Piracy: Right or Wrong?, http://tumblrin.blogspot.com/ (last visited Nov. 18, 2016).

[15] Matthew Sag, IP Litigation in U.S. District Courts: 1994-2014, 101 Iowa L. Rev. 1065, 1072 (2016).

[16] Id. at 1068.

[17] Id.

[18] Id. at 1067.

[19] Safety Point Prod., LLC v. Does, No. 1:12-CV-2812, 2013 WL 1367078 (N.D. Ohio 2013).

[20] Laura Gunderson, Copyright Infringement Cases Implicate At Least 250,000 Consumers Nationwide, The Oregonian (Apr. 08, 2013), http://www.oregonlive.com/business/index.ssf/2013/04/copyright_infringement_cases_i.html.

[21] Safety Point Prod., 2013 WL 1367078, at *3 (internal citations omitted).

[22] AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014).

[23] Id. at 994.

[24] Id. at 995-996 (quoting Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)).

[25] Id. at 998.

[26] Id. at 998-999 (citing Hard Drive Productions, Inc. v. Does 1-30, 2011 WL 4915551 (E.D. Va. 2011); Digital Sins, Inc. v. Does 1-245, 2012 WL 1744838 (S.D.N.Y. 2012)); Patrick Collins, Inc. v. Does 1-44, 2012 WL 1144854 (D. Md. 2012); and In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 90-91 (E.D.N.Y. 2012)).

[27] See, e.g., Parker Higgins, Copyright Trolls Suffer Big Loss, Cnet (May 28, 2014), https://www.cnet.com/news/copyright-trolls-suffer-big-loss/; Matthew Keys, Judge Says IP Address Not Enough in Bittorrent Piracy Case, The Blot Magazine (Jan. 22, 2014), https://www.theblot.com/judge-says-ip-address-enough-bittorrent-movie-piracy-case-7714031; Dana Liebelson, Why It’s Getting Harder to Sue Illegal Movie Downloaders, Mother Jones (Feb. 17, 2014), http://www.motherjones.com/politics/2014/02/bittorrent-illegal-downloads-ip-address-lawsuit.

[28] See, e.g., Antonelli Law, http://antonelli-law.com/Copyright_Troll_Defense.php (last visited Nov. 20, 2016); JUX Law, http://jux.law/copyright-infringement-tips-for-illegal-movie-music-download-cases/ (last visited Nov. 20, 2016); Pietz Law Firm, http://pietzlawfirm.com/slaying-the-copyright-troll-help-i-got-a-letter-from-my-isp-seeking-to-subpoena-my-identity-because-a-copyright-troll-wants-to-sue-me-for-copyright-infringement-what-do-i-do (last visited Nov. 20, 2016); Tucker IP Law, http://www.tuckeriplaw.com/copyright-infringement-attorney/ (last visited Nov. 20, 2016).

[29] See, Michael White, DreamWorks Animation Acquires Troll Rights From Dam Family, Bloomberg (Apr. 12, 2013), https://www.bloomberg.com/news/articles/2013-04-11/dreamworks-animation-acquires-troll-rights-from-dam-family; see also, Ernesto Van der Sar, “Trolls” Try to Censor TorrentFreak’s Copyright Trolls Coverage, TorrentFreak (Nov. 13, 2016), https://torrentfreak.com/trolls-try-to-censor-torrentfreaks-copyright-trolls-coverage-161113/.

[30] Trolls (DreamWorks Animation 2016).