Copyright Trolls

            We tend to want to think of Copyright Law as a dignified business.  Therefore I was shocked recently to discover that nearly forty percent (40 percent) of the copyright infringement litigation in this country involves the adult entertainment industry. 

            From my research (honestly) I see that companies such as Malibu Media (perhaps the largest player in this game) offer their videos for sale on the Internet.  Some unscrupulous users then employ file-sharing software to copy and share their films (does this sound familiar to the music industry?).  Much like the RIAA litigation of several years ago these companies have found ways to trace the infringements to various ISP addresses.  They then file copyright infringement lawsuits against the owners of these IP addresses (identified as John Doe in the complaint).  The defendants are then given the option to pay statutory damages (which can range from $750.00 to $30,000 or defend the claim in court.  Of course the next step is discovery in which the John Doe's real name gets revealed, leading to the possibility that the hapless defendant gets named in a federal lawsuit for downloading porn. 

            This really is a moral dilemma.  On the one hand copyright infringement is stealing, whether you're talking about an artist's life work or pornography and the adult film industry certainly has a right to protect its assets.  But the fact that the Copyright Act allows for the collection of statutory damages (at a minimum of $750.00 per title) and attorneys fees means that the plaintiffs are getting something of a windfall each time they are successful in these suits.  Some judges have taken note of this and there seems to be a new niche developing in defending against these suits. Of course even though they're not always victorious, litigating the claim for an innocent defendant (i.e. a grandparent or someone with an unsecure Wi-Fi connection) can be expensive.  The worst part to me is that these plaintiffs are holding this extra leverage over the defendants (pay up or suffer public humiliation. 

            These copyright owners have been called "copyright trolls" (defined as “an owner of a valid copyright who brings a copyright infringement action not to be made whole but rather as a primary or supplemental revenue stream") (see DeBriyn – Shedding Light on Copyright Trolls, 19 U.C.L.A. Ent. L. Rev. 79 (2012). I don't know if I would necessarily go that far.  Certainly no one accused the record companies of being trolls when they unleashed their torrent of lawsuits against file sharers (they were accused of many things but I don’t recall the word “trolls” being used.   But for some reason I find it shocking that this type of litigation constitutes so much of the federal court's docket.  However, it does demonstrate that there are a lot of ways to make money in the entertainment business. 

Protection Against Copyright Trolls

This comes from the Learn Something New Every Day Department. I was surfing the internet reading other attorney’s blogs and came across an article by David Kravets on wired.com:

The $105 fix that Could Protect You from Copyright Troll Lawsuits

I have known about patent trolls for years; they are people who exploit small similarities in inventions, or technical violations of the patent law for profit through litigation. Tbey serve no useful purpose to society. I never heard anything about copyright trolls. Apparently, there is a new cottage industry in acquiring copyrighted material, registering it, then suing websites that have reposted it. I am not talking about sites that promote or engage in copyright infringement, but rather sites that include user comments and interactions (such as blogs).

All of these sites are protected by the Digital Millennium Copyright Act, which, through its “takedown agent” provision, allows a safe harbor for those who repost user generated content (such as Facebook, YouTube, etc.). What I did not realize until I read this article, is that in order to qualify for this safe harbor protection, the site has to register its takedown agent with the Copyright Office. The fee for the service is $105.

As the article points out, the traditional defenses in copyright infringement, such as fair use, remain viable, but the appointment of the takedown agent is a virtual bar to a suit proceeding in the first place.

So, if you are running any kind of blog or website that accepts third party content, or if you intend to quote liberally from third parties on your blog, I suggest you investigate the registration provisions of the DMCA. It could be the best $105 you ever spent.