I’m a strong supporter of copyright. I believe, without shame, that the people who dedicate the time, energy and expertise into creating a work deserve the fruits of that work. Copyright is the means by which creators control their creations, develop business models and exploit their work, either for personal or professional gain.
But being a supporter of copyright does not mean I support everything that has been done in its name.
Lately, many people claiming to be defenders of copyright have been taking steps that go beyond both the ethics and the legality of copyright enforcement. Their actions do nothing to support the notion of copyright and, in fact, undermine it greatly by destroying public perception and the willingness of the courts to help.
According to them, these scorched-earth tactics are necessary to protect their rights. However, at the same time, they ignore easier, cheaper and less-destructive enforcement methods that can be used.
The truth is these copyright enforcers, often called copyright “trolls” by their critics, aren’t just harming their targets and sabotaging themselves with strained legal arguments. They’re hurting copyright holders everywhere.
So while I support copyright, I don’t support the copyright “trolls” and I don’t see those statements as contradictory.
What is a Copyright Troll?
It can be difficult to nail down exactly who is or is not a copyright troll. The term itself has been thrown around so much that almost anyone who does copyright enforcement, no matter how reasonable, can be stuck with it.
Copyright troll is a pejorative term for a party that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution.
Breaking this down, there are three fairly simple requirements to being identified as a copyright “troll”.
- Attempting to use litigation (or threats thereof) as a source of profit.
- Extremely aggressive with litigation (or threats thereof), targeting large numbers of infringers.
- Has limited interest in distributing the work legally.
What this means it that a lot of legal campaigns that are commonly considered to be “troll” campaigns aren’t. They may be misguided or poorly-executed, but they aren’t “troll” campaigns.
This includes the famous RIAA file sharing litigation spree, which ended in 2008 after more than 35,000 were sued. Not only does the RIAA legitimately distribute the works involved, but it never entered the campaign for profit. In fact, they lost quite a bit of money doing it.
Another is the Getty Images (and other stock photo sites) campaign. Though I’ve been critical of the campaign in the past, it’s hard to call it a “troll” operation. Though it is, most likely, a profit center, Getty distributes the images legally and that is still its primary business.
But then there are the obvious troll cases. Prenda Law, for example, has sued many file sharers over pornographic films that may have been only released for the purpose of litigation. Similarly, Righthaven famously “acquired” rights from newspapers over articles solely for the purpose of suing over those rights (though the questionable transfer of rights proved to be their undoing).
These organizations have done nothing to improve the copyright situation online and, in their fallout, left behind a much more hostile climate for copyright holders, both in and out of the courtroom.
These tactics do nothing to defend copyright and are poisonous to the copyright debate that’s ongoing.
Despicable Tactics, Predictable Results
The key problem in all of this is that litigation was never supposed to be a business model unto itself. Copyright is the means to a business model, a way to control a work so that it can be exploited. Litigation is supposed to support that effort to monetize a work, not replace it.
While it’s true that copyright holders routinely make money in litigation, the law often compels infringer to pay damages plus legal fees, that’s aimed more at making litigation practical by making it less of a burden on the infringed.
By abusing the rules to turn litigation into a business model, the organizations not only anger the public, but also judges. Sometimes, this leads to rulings that can harm other copyright holders, such as the Righthaven ruling that found even a copy and paste of an entire article could be a fair use.
But litigation is not the goal of most of the cases. Litigation is risky, expensive and, especially when dealing with individual defendants, unlikely to be recouped.
Instead, most try to leverage an imbalance in the system, offering settlements that, while profitable to them, are significantly less that he cost of actually defending the case. For a defendant who has received such a letter, the only sensible move is to settle.
But then again, another trademark of these lawsuits is that they often threaten far more people than they can actually sue. As a result, many who ignore the threats and don’t pay up, often times, simply have nothing happen to them. This not only further distinguishes the litigation tactics of the modern “trolls” from the RIAA, but it also angers those who do settle.
After all, what good does paying a settlement offer do if those who ignore it don’t suffer any consequences?
But even more strained is the legal theories these cases operate under. Since finding the identity of an infringer generally requires a lawsuit and lawsuits, as we mentioned above, are expensive, these companies often attempt to reduce the amount they spend by rolling up hundreds or even thousands of defendants into one lawsuit. The legal theories they’ve used to do this have been been the subject of much speculation and have, on many occasions, resulted in cases being dismissed.
The truth is these cases do nothing to actually further copyright protection and the strained legal theories combined with angry judges bring about rulings that can harm other copyright holders wanting to enforce legitimate interests.
To be clear, I’m not against copyright litigation. Litigation is a powerful tool for copyright enforcement and it is often necessary. I also don’t believe litigation is unethical because a large company sues a smaller company or an individual.
But I do believe that litigation should be a tool used judiciously, as a near-last resort. Using it broadly, especially as a business model unto itself, invites anger and more problems and doesn’t further actual enforcement.
Still, I have sympathy for copyright holders that support the “troll” operations. There’s a real sense of frustration out there with the massive amount of infringement and “sue them all” can be a tempting rallying cry. But with today’s legal climate, that solution is neither practical nor balanced.
This is one of the reasons why a copyright small claims court could be a major step forward. Finding a sensible way to deal with smaller infringements, has the potential to help both plaintiffs and defendants.
In the meantime though, imbalanced responses to infringements by people seeking to make money through litigation aren’t defending copyright, they’re likely making things much, much worse.