What’s Wrong with Copyright Law?

We need Copyright laws to protect creativity. Without Copyright laws, we would not only deprive artists, authors, and other creative types of a proper system of redress, but also discourage their creativity. Indeed, the simple notion that inventions and useful arts should be afforded protection has been memorialized in writing by our founders in the U.S. Constitution.

Today, however, due to advancements in technology and this trending motivation to exploit imperfect legislation, we are seeing a different kind of use for Copyright law that surely departs from the intentions of our founders and our legislature. We find ourselves in an era of Copyright trolling.

What is a Copyright troll?

A Copyright troll is a person (or entity of some kind) who owns a Copyright in some work and aims to exploit it by suing or threatening to sue. The reason this is obviously unethical is that their financial motivations encourage “piracy” of Copyrighted material–if people aren’t infringing their Copyright, then the troll is not getting paid.

Why is “Trolling” bad?

The goal of Copyright law is to allow for folks to police their artistic works, to establish an audience of users for them (usually a market of some kind) and issue proper licenses to those with a desire to access their creativity. If someone has had their Copyright infringed, they can use the legal system to protect their rights in a number of ways that can be perfectly legitimate (such as with the DMCA’s notice and takedown provisions, or in the event of a last resort they can file a Federal suit should the infringing behavior continue).

Trolling is bad because it destroys the above framework on a number of levels:

  1. Trolling devalues artistic works rather than encouraging their protection. A troll doesn’t just open up negotiations with you or ask you to take down their work. They don’t ask if it was an accident. Instead, they send you a letter requesting a settlement and threatening litigation in the event you don’t pay. This creates a negative association with what’s supposed to be defense of a “creative work”. It’s hardly surprising to note here that a large number of trolls own Copyrights to pornography and rely on the embarrassment that comes accompanies your having viewed it to elicit a response (guarantee for settlement);
  2. Trolling creates a negative impression of the legal system and encourages its abuse. A troll, via its own troll-law firm, essentially invokes the “$150,000 in statutory damages” language of the Copyright Act as a predatory tactic to scare people into paying the troll its much lower settlement fee. Listen, if it were about protecting legitimate art rather than capitalizing on thousands of smaller settlement quotes, we should be seeing more suits actually go to Federal court. The truth is, however, most trolls typically tend to either receive money from the settlement or move along to the next victim. This is not what Congress intended with the Copyright Act; it is not the role of the Copyright Office; and,
  3. Trolling violates due process when against a group of “John Doe(s)“. That is, one Troll maneuver is to file suit against numerous “John Doe(s)” who have allegedly infringed the Troll’s Copyrights, subpoena the identities of those individuals from their ISP, and subsequently use the suit and their identity to pressure settlement from the individuals. However, because the suit has been filed against a John Doe, in the event that any one of those individuals elects to defend themselves against the troll subpoena or a suit without merit, they must do so at the risk of exposing their identity. That’s right, you have no chance to defend a subpoena or lawsuit filed against you–usually these are scandalous films or some other “work” where the troll understands you don’t wish your name disclosed–without disclosing your identity to the court.

Where can I learn more about Copyright Trolls?

There’s a lot of useful material out there. Try the Electronic Frontier Foundation, Dietrolldie or Fightcopyrighttrolls to start.

What can I do if I’m the victim of Copyright trolling?

If you receive any notice or request for settlement based on your alleged Copyright infringement, do not respond, as doing so you may inadvertently provide the troll with additional ammo in the form of an admission of wrongdoing. Immediately engage counsel in a private consultation with your specific factual scenario.

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