Aggressive litigants may pose problems for the careless and unwary
There’s a new monster on the prowl, and you or your business could be its next victim. Don’t bother looking over your shoulder, because you won’t see it coming. The first you’ll know about it will be when the threatening letter arrives, or perhaps the notice of the Federal lawsuit, or the subpoena.
And at that point, it may be too late.
We’re talking about the Copyright Troll, a recent unfortunate phenomenon of the Internet Age identified several years ago and recently brought into clear focus through the vigilant efforts of the Electronic Frontier Foundation (EFF), in particular, as well as other protectors of our civil liberties.
While there are a number of different species of the Troll, they all tend to prey on folks who aren’t taking basic steps to avoid exposure to liability. We have previously written about the need to shore up defenses against potential liability from your use – and your employees’ use – of social media on the job. If you haven’t acted on our suggestions yet, the increasing Troll population gives you one more incentive to do so.
The Troll is opportunistic, like a virus. It obsessively seeks out apparent copyright violations and when it finds what appears to be an infringement – possibly the unauthorized post of copyrighted text, possibly the P2P transfer of unauthorized copies of files (like music or movies) – the Troll zeroes in.
One Troll species has tended to focus on printed content taken from online news sites that finds its way onto somebody else’s site (such as a chat room, discussion board or blog). Others are able to detect particular films or videos being downloaded to IP addresses through such file-sharing programs as BitTorrent. Once such seeming infringements pop up on the radar screen, the Troll goes to work.
Its first order of business appears to be to file a lawsuit alleging copyright infringement. (Intentionally unnerving factoid: In 2010 alone, more than 14,000 such suits have already been filed.) In many if not most instances, the Troll knows only the IP addresses – not the names – of the alleged infringers, but that’s not a problem: the defendants are all listed as “John Doe” (along with the various IP addresses) in the initial court papers. (Hence the name “John Doe lawsuits” often given to such litigation.) The Troll isn’t really concerned with relatively minor details; it can always sort those out later, when it’s got your attention.
That comes next: once the suit is filed, the Troll obtains a subpoena addressed to any and all ISPs or other such services used in the alleged infringement. The subpoena seeks the identifying names and addresses associated with the IP addresses. When those are in hand, the stunned individual defendants are besieged with offers of quick and quiet settlement, for a price. Since U.S. law provides for hefty statutory damages – that is, the plaintiff doesn’t need to prove that it has actually suffered any monetary damages in order to score big – and since the cost of litigation can be similarly hefty, there is considerable incentive to pay the nuisance price even if the defendant plainly did not infringe anything. There is even more incentive if the defendant is, or could be, liable for infringement.
Want a more detailed glimpse into the nitty-gritty? Check out reports from the EFF, or Wired, or Ars Technica. It’s pretty scary. (Sadly, the core of the Troll operation is reportedly populated primarily by lawyers. Please don’t hold that against the rest of us.)
In general, there are three ways that a media entity might get cross-wise with a Troll. Fortunately, we may be able to help you no matter which situation applies.
First, the infringement may occur from content posted on your website – maybe on a discussion board or chat room that allows your listeners, viewers or others to interact. Or maybe you provide the opportunity for visitors to post their own comments on your site. All it takes is somebody, anybody, posting copyrighted content somewhere on your site. Yoo-hoo, Copyright Trolls – Come and get it!!!
(A likely source of such content: reports taken from online news sites, particularly during highly partisan discussions of hot button issues. Perhaps the most famous such Troll operating in this area: Righthaven, LLC, a company that has made a business of purchasing copyrighted news content from the content’s creators and then aggressively suing those who post that content without permission. Check out EFF’s description of Righthaven’s MO here.)
The good news is that you can get yourself absolute immunity from this kind of infringement claim by taking a few simple steps to obtain the protection of Section 512 of the Digital Millennium Copyright Act. With a few tweaks to the Terms of Service of your website, the filing of a form with the United States Copyright Office and a minimal amount of vigilance on your part – enough to respond to the occasional Takedown Notice sent to your Designated Agent – you should be good to go. Sure, there’s a $105 filing fee for that Copyright Office form, but that’s peanuts compared to the potential statutory damages that are in play for copyright infringement. (If this sounds familiar, it’s because we’ve written about it here before; so have the folks at Wired.)
Another target of the Trolls: illegal downloaded/sharing of movies and the like. If somebody on your staff does this using your equipment, your IP address will likely show up in the Trolls’ search and, bingo, here comes the infringement claim against you. Once this happens, it may be Too Late to apply any easy fixes, so the trick is not to let it happen in the first place. We’ve spoken before about adopting guidelines for use of social media in the workplace. This is one situation that those guidelines would address.
Yet another Troll trick: If you’re an Internet service provider (or a cable or telephone company bundling or reselling service), you might receive a subpoena asking you to identify the subscriber found at a particular IP address. In some of these cases, you might have a responsibility to forward the subpoena to the subscriber so that he/she can challenge the subpoena himself. We can walk you through the process of notifying a subscriber, challenging a subpoena or responding to the subpoena with the required information.
If you do happen to get sucked into any kind of Troll-initiated infringement action, first take a deep breath, then take heart. The EFF has already identified a few arguments that might counter the Trolls in some cases. For example:
- Trolls often join all the defendants in a given case in a single lawsuit filed in a single District Court, which may entail constitutional due process problems.
- Trolls often sue based on the IP address of the computer used to download/share the copyrighted work. But the owner of that computer might not be the same person who actually committed the copyright infringement at issue.
- There is a First Amendment right to anonymous speech which might outweigh the need identify the speaker/defendant.
In fact, if there’s one upside to the increase in Copyright Trolls, it’s that that increase has spawned a pretty solid body of materials aimed at countering such suits – so filing the required motion to quash isn’t nearly as difficult or expensive as it used to be.
Still, an ounce of prevention is worth a pound of cure – so tighten up your social media policies and, if nothing else, act now to GET YOURSELF UNDER THE SECTION 512 UMBRELLA!!!