A Possible Solution to the Copyright Troll Epidemic?

The term copyright troll has been gaining in its public recognition since 2010 when Voltage Pictures filed a lawsuit against 5000 unnamed defendants (“Does”) for illegally distributing a copyrighted work called The Hurt Locker.[1] This film was distributed using an internet-based file sharing protocol called BitTorrent.[2] Rather than downloading a file from a single source server, the BitTorrent protocol allows users to join a “swarm” of hosts to download and upload from each other simultaneously.[3] When suing potential copyright infringers, the copyright holder has the option to either sue for actual damages caused by the infringement combined with any profit the infringer may have generated or for statutory damages.[4] In the event that the court determines that the infringement was willful, the court has the authority to raise the statutory damage award to $150,000.[5] Combining the fact that copyrighted works are often distributed by large numbers of individuals simultaneously utilizing the BitTorrent protocol with the ability to opt for statutory damages up to $150,000 many copyright holders seek damages not as compensation, but as an additional revenue stream.[6]

This model of litigation is made possible by the unequal bargaining power between the copyright holders and the defendants. Joining large groups of defendants, copyright holders and their council rely on scare tactics as well as basic economics to illicit settlements out of hundreds of defendants at a time with few expenditures. After a copyright holder identifies a particular IP address that has distributed a copyrighted work using techniques beyond the scope of this discussion, it must pair the IP address with an actual person. To accomplish this, copyright holders initiate suits against multiple Does and then subpoena internet service providers (“ISPs”) to match the IP addresses with actual people.[7] ISPs often respond to these subpoenas by sending letters to their subscribers stating that they have been named in a lawsuit and unless they file a motion to quash the subpoena, they may be liable for damages up to $150,000. This letter alone can often be enough to elicit settlements out of Does for fear of losing and having to pay the maximum statutory fine. Another fact that encourages settlements is that the typical amounts of the settlement offers are often far less than the cost of representation should the defendant contemplate litigation.[8]

Some have suggested that the proper response to deal with this copyright litigation model should be to remove statutory damages.[9] Although removing statutory damages seems like a very straightforward method of deterring this particular type of litigation, it poses some problems. Due to the nature of the BitTorrent protocol, determining the actual damages to the copyright holder may be exceedingly difficult if possible at all. If the actual damages cannot be determined, this may deny the copyright holder his or her day in court, an option which should not be entertained. A more appropriate response would be to alter the statutory damages to reflect current developments in technology. For example, a statutory damage amount could be imposed for material distributed over peer to peer networks which more accurately reflects the value of the copyrighted works, instead of an amount differing by orders of magnitude.

[1] Complaint at 1, Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873 (D.D.C. May 24, 2010), ECF No. 1.

[2] Voltage Pictures, LLC v. Does 1-5,000, 818 F. Supp. 2d 28, 31 (D.D.C. 2011)

[3] BitTorrent, Wikipedia (last visited August 11, 2012), http://en.wikipedia.org/wiki/BitTorrent.

[4] 17 U.S.C. § 504(c)(1).

[5] 17 U.S.C. § 504(c)(2).

[6] Ben Jones, Copyright Trolls, Not Just for Patents Anymore, Torrentfreak (Sept. 20, 2010), http://torrentfreak.com/copyright-trolls-not-just-for-patents-anymore-100920/.

[7] E.g., Motion to Quash Subpoena at 4, Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873 (D.D.C. Oct. 5, 2010), ECF No. 11.

[8] Robert W. Zelnick, Guest Post: Open Season on Copyright Infringement Claims? All Hail, or Hate, the ′′Troll′′?, Patently-O (Sept. 21, 2010), http://www.patentlyo.com/patent/2010/09/zelnick-copyright-trolls.html.

[9] James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages, 19 UCLA Ent. L. Rev. 79, 103 (2012).

Author: David D'Amato

My name is David D’Amato and I am currently a 2L here at Rutgers Law. I grew up in Bergen County before moving to Hoboken where I attended Stevens Institute of Technology and received my degree in mechanical engineering. I worked as an engineer for three years, helping to design and manufacture medical devices before enrolling at Rutgers Law. I plan to specialize in intellectual property law, specifically patent law, as well as corporate law. During the summer following my IL year, I worked for Ellenoff Grossman & Schole LLP in their corporate law department, assisting with mergers, acquisitions, venture capital investments and trademark filings. My goal is to one-day represent large technology companies in their intellectual property endeavors. I am currently the president of the Rutgers School of Law – Newark chapter of Phi Delta Phi, the oldest legal fraternity in North America, as well as a member of the Federalist Society. When I am not camped out in the library or attending meetings for student organizations, I like to workout, read, listen to music, and enjoy the occasional pint at McGovern’s.

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