Copyright trolls have emerged as opportunistic entities that aggressively pursue copyright infringement lawsuits against individuals, not to protect creative works, but rather to profit through coercing settlements. The article discusses the rise of copyright trolls and their abusive tactics, such as targeting large numbers of "John Doe" defendants and exploiting high statutory damages to pressure settlements. While a victory against a troll lawsuit in Oregon reduced the financial viability of the troll business model, the problem persists nationwide due to imbalances in copyright law promoted by entertainment industry lobbying.

1. Legal decision: US
64 Intellectual Property magazine July/August 2013 www.intellectualpropertymagazine.com
An ever-growing problem in the US, as
well as in other countries, is that trolls
have descended on the courts. Growing
from an oddity to a curiosity, to a problem
to a full-blown infestation, copyright
trolls have made the courts a tool for
intimidation and extortion.
It is not Godzilla, but what is it?
‘Copyright troll’ is a pejorative term for a party
thatenforcescopyrightsitownsforpurposesof
making money through litigation, in a manner
considered unduly aggressive or opportunistic,
generally without producing or licensing the
works it owns for paid distribution. These trolls
have frequently operated within the music
and film industries. More recently, the term
has been used to describe entities that bring
questionable claims against companies in the
fashion industry over purported copyrights in
fabric patterns.
Critics, including yours truly, object to
this activity because we believe it does not
encourage the production of creative works.
Instead, it makes money from the inequities
and unintended consequences of high
statutory damages provisions in copyright laws
intended to encourage creation of such works.
The term for and conception of a
copyright troll began to appear in the mid-
2000’s. It derives from ‘patent trolls’, which
are companies that enforce patent rights to
earn money from companies that are selling
products,withouthavingproductsoftheirown
for sale. It is distinguished from organisations
such as the American Society of Composers,
Authors and Publishers, which collect royalties
and enforce the copyrights of its members.
The trolls are, of course, following a trail
blazed by the major music labels through the
Recording Industry Association of America
(RIAA). Beginning around 2003, they sued
about 35,000 people, using the courts’
subpoena powers as a private investigation
service to find names and addresses. The
RIAA ended its lawsuit campaign in 2008,
apparently realising the damage that suing its
own fans had done to the industry’s image.
Apparently not everyone got the memo. In
2010, groups began to experiment with using
mass copyright litigation to extract settlements
from individuals. These copyright trolls try to
grow businesses out of suing internet users.
Their tactics include targeting large groups of
anonymous “Doe defendants”, to improperly
minimise their court costs and exploit the
massive damages in copyright law in order to
pressure defendants into settling quickly.
It was perhaps inevitable that the vacuum
would be filled by opportunists with no public
image to protect. Since 2008, troll lawyers
have sued about six times more people
than the RIAA ever did, and pursued them
even more aggressively, probably netting
millions in settlements. Some have faced
court settlements for cutting corners in court
procedure,andonewasevencaughtpracticing
law without a licence. But this scheme would
not be a viable business model without the
draconian imbalances of US copyright law
and legal precedent that the entertainment
industries and their lobbyists have pushed
through Congress and the courts.
For starters, the statutory penalty for
sharing even one copyrighted work, for
example, one song, is as much as $150,000.
It is no surprise that many people choose to
settle for several thousand dollars rather than
risk a bankrupting court judgment, even if they
broke no law. The entertainment industries
insist that we need these gargantuan penalties
to deter infringement, but the same ‘statutory
damages’ provisions are the knobby clubs in
the hands of the trolls.
Then there’s the legal doctrine of
‘secondary liability’. The movie and recording
industries are constantly pressing for broader
liability for intermediaries, internet sites and
services, and makers of tools and software.
Copyright trolls use these concepts to
disregard actual copyright infringers and
instead go after the owners of internet
accounts, who are often easier to find. The
trolls suggest, using the rhetoric of secondary
liability, that merely allowing others to use
one’s internet connection, or operating an
open Wi-Fi mode, makes one liable for any
copyright infringement. This is not the law, but
the trolls do not concern themselves with that.
Often, even those who understand secondary
liability, or can afford hiring a lawyer, choose
to pay a settlement for someone else’s alleged
infringement, rather than risk a lengthy and
expensive trial, even if they would prevail.
Then there is the very concept of lawsuits
aimed at dozens or thousands of “John Doe”
internet account holders. Plaintiffs in these
suits often group together internet users from
all over the country or state and obtain their
identities from internet service providers (ISPs)
by court order. Doing this requires trampling
on jurisdiction rules that keep people from
being unfairly forced to defend themselves far
from home, joinder rules that guarantee every
defendant is treated as an individual, as well as
the First Amendment, which gives us a right
to communicate anonymously. The RIAA’s
Roe Law Firm’s Ted Roe sharpens his sword to provide a hard-hitting critique
of copyright troll behaviour
Slaying the troll
THE CASE:
Voltage Pictures, LLC, v DOES 1-198, DOES 1-12, DOES 1-23, DOES 1-371
The US District Court of Oregon
4 May 2013

2. Intellectual Property magazine 65www.intellectualpropertymagazine.com July/August 2013
lawsuit campaign also disregarded these legal
safeguards. After the RIAA opened this door,
the trolls lumbered in.
Finally, the entertainment industries have
spent decades, and millions of lobbying and
advertising dollars, to promote the simple but
flawed idea that if copyright law promotes
creativity, then even-more-extreme copyright
laws will promote even more creativity.
According to this philosophy, the importance
of preventing even the most inconsequential
copyright infringement justifies chilling free
speech, unmasking anonymous internet users,
wholesale regulation of the internet… and
setting loose the trolls.
This worldview was on full display in
Voltage Pictures v Does, in the Oregon
Federal District Court, in which yours truly,
represented the defendants and moved to
quash subpoenas for internet users’ identities.
The plaintiff’s attorney defended his litigation
tactics as an acceptable way to stop piracy.
Modern troll history
In 2010, copyright holding company
Righthaven was called a copyright troll by
commentators, after it purchased copyrights to
a number of old news articles from Stephens
Media, publisher of the Las Vegas Review-
Journal, and sued bloggers and other internet
authors for statutory damages, for having
reproduced the articles on their sites without
permission.
The matter was covered by the Los Angeles
Times, Bloomberg News, Wired News, Mother
Jones, the Wall Street Journal, the Boston
Herald, and other newspapers and news
blogs. The Electronic Frontier Foundation, a
San Francisco-based group that lobbies and
litigates for digital free-speech and consumer
issues, offered to assist the defendants. The
paper’s competitor, the Las Vegas Sun, covered
all 107 of the lawsuits as of 1 September 2010,
describing it as the first known instance of a
copyright troll buying the rights to a news story
based on the finding that its copyright had
been infringed. The Review-Journal’s publisher
responded by defending the lawsuits, and
criticising the Sun for covering them.
In August 2010, the company entered an
agreement with Wehco Media in Arkansas to
pursue similar actions, and announced that
it was in negotiation with a number of other
publishers. Wired Magazine described the
activity as “borrowing a page from the patent
trolls”, and noted that the company was
demanding $75,000 from each infringer, and
agreeing to settlements of several thousand
dollars per defendant.
By fall of 2011, defendants with resources
to fight Righthaven in court were winning
cases on grounds that their usage fell within
the fair use doctrine and that Las Vegas
Review-Journal had actually not assigned full
ownership of the copyrighted material to
Righthaven. Successful defendants demanded
court costs and legal fees, which Righthaven
refused to pay. By December 2011, Righthaven
was insolvent and on the auction block. Since
Righthaven, there has been an explosion
of copyright troll cases, brought by music
production companies, film companies and
porn companies.
Nuts and bolts of a copyright
troll lawsuit
In general, troll lawsuits are structured in
the following manner: a federal lawsuit is
filed on behalf of a copyright holder alleging
infringement and against hundreds, if not
thousands, of “Doe” defendants, identifying
the defendants only by the IP (internet
protocol) address associated with a particular
download. The infringement is based upon
allegedly illegally downloading a protected
work from a peer-to-peer sharing site, like
BitTorrent.
The troll then issues, with the court’s
permission, subpoenas to the ISPs providing
internet service to each of the IP addresses
associated with each defendant, seeking the
name and address of the individual associated
with that particular IP address. This is the
individual who subscribed with that ISP for
internet service. Once the user’s identity is
known, the troll threatens a judgment of
up to $150,000 per downloaded movie –
the maximum penalty allowable by law in
copyright suits and a very unlikely judgment
in cases arising from a single non-commercial
infringement. This pressures the alleged
infringers to settle quickly for $7,500 per
person.
Coercion, extortion,
intimidation… oh my!
One major issue with this methodology is that
the defendant associated with the IP address
may have nothing to do with an alleged
download. For example, a father is listed on
an ISP account and a young son downloads
a movie, or an apartment complex provides
internet service to tenants and one of the
tenants downloads protected material, or a
café provides free internet to its patrons and
someone downloads music over a coffee.
Under these circumstances, none of the
individuals listed as the subscriber for internet
service is culpable for the alleged infringement,
regardless of troll arguments of secondary
liability.
Consequently, troll lawsuits are not (for the
most part) legitimate copyright infringement
lawsuits, in which copyright holders are
attempting to protect their works. Rather,
these are based upon a business model
that misuses the court system to intimidate
individuals into paying ridiculous settlement
fees or fees relating to defending the lawsuit
and having their names associated with illegal
downloading, sometimes including the social
stigma of illegally downloaded pornography.
In these cases, the owners of the adult
movies filed mass lawsuits based on single
counts of copyright infringement stemming
from the downloading of a pornographic
film and improperly lumped hundreds of
defendants together regardless of where the
IP addresses indicated the defendants lived. To
date, over 50,000 “Does” have been targeted
in cases filed in West Virginia, Texas, Illinois,
and the Northern District of California. The
motivation behind these cases appears to be
an effort to leverage the risk of embarrassment
associated with pornography to coerce
settlement payments despite serious problems
with the underlying claims. The judge in several
“This scheme
would not be a
viable business model
without the draconian
imbalances of US
copyright law and legal
precedent that the
entertainment industries
and their lobbyists
have pushed through
Congress and the
courts.”
Legal decision: US

3. 66 Intellectual Property magazine July/August 2013 www.intellectualpropertymagazine.com
“There will always be
people willing to use
the legal system as
part of a shakedown,
but copyright trolls are
a monster created
in Hollywood. The
entertainment industry’s
spokespeople and
lobbyists do not
discuss how the
laws, treaties, court
precedents, and
private enforcement
agreements they spend
millions to promote,
will be misused by
opportunists.”
Legal decision: US
of the cases filed in West Virginia has blocked
plaintiffs from proceeding against almost all of
the defendants in those cases, approximately
5,400 people. Unfortunately, thousands of
defendants in other cases are still under threat.
Troll lawsuits, not just
for porn anymore
I was most recently, involved in one copyright
troll case in which more than 600 Oregonians
were accused of illegally downloading a
Steven Seagal movie and were told by the troll
that their only option out was to pay a $7,500
settlement.
I filed a motion to quash the resulting
subpoenas, arguing that it is improper to
allow the plaintiff to join over 600 defendants
(allowing the plaintiff to pay only a $350
filing fee to sue over 600 defendants), in a
clear effort to intimidate innocent defendants
into paying a ransom on their good name,
in addition to the First Amendment right to
privacy and anonymous online communication
enjoyed by individuals.
Following our briefing on these issues, the
court dismissed the file-sharing case against
614 defendants (out of 615 defendants),
ruling that they were improperly lumped
together in a copyright infringement lawsuit
on behalf of Voltage Pictures, a Los Angeles-
based film company.
The judge determined that the defendants
differed in too many ways; from the dates
the BitTorrent downloads allegedly occurred
to where they lived, for them to be joined
together.
In doing so, the court took the profit out
of a copyright troll case. In accordance with
the court’s ruling, Voltage Pictures would now
be required to sue each defendant individually.
The real world implications of this ruling
is that instead of one filing fee of $350, it
would now be required to spend $215,250
in filing fees to sue the same people. As the
troll business model is essentially to sue as
many people as possible, as aggressively as
possible for as cheaply as possible, this was
a fatal blow to the troll. Because the initial
costs are now substantially higher, we expect
to see a significant reduction in troll copyright
infringement cases. Additionally, the Oregon
Federal Court gave a roadmap to other
jurisdictions, which would lead them to the
same result.
In this most recent case, judge Ann Aiken
of US District Court of Oregon stated that, “[a]
ccordingly, plaintiff’s tactic in these BitTorrent
cases appears to not seek to litigate against
all the Doe defendants, but to utilise the
court’s subpoena powers to drastically reduce
litigation costs and obtain, in effect, $7,500
for its product”, adding “which in the case of
‘Maximum Conviction’, can be obtained for
$9.99 on Amazon for the Blu-Ray/DVD combo
or $3.99 for a digital rental”.
The underlying message here is that
Oregon’s judiciary is not going to be deceived.
Judges have educated themselves and are
taking a stance on using the legal process to
advance nefarious objectives.
It is certainly my hope that federal courts
in other jurisdictions will consider the Oregon
Federal Court’s reasoning and ruling in this
case and dissuade others from filing similar
lawsuits.
Nationwide, close to 250,000 “Does”
have been named in these copyright troll
cases, according to the Electronic Frontier
Foundation. The current crop of copyright
trolls sue anywhere from 20 to 5,000 “John
Does”.
While Voltage Pictures was a great victory
against the trolls, there’s no Hollywood ending
in sight nationally, yet. There will always
be people willing to use the legal system as
part of a shakedown, but copyright trolls
are a monster created in Hollywood. The
entertainment industry’s spokespeople and
lobbyists do not discuss how the laws, treaties,
court precedents, and private enforcement
agreements they spend millions to promote,
will be misused by opportunists.
But when the next Stop Online Piracy
Act, Protect IP Act, Anti-Counterfeiting Trade
Agreement and Trans-Pacific Partnership,
graduated response agreement, or state-
level copyright bill comes along, let us ask
Hollywood and its allies how they plan to keep
the trolls confined to the big screen.
Author
Ted Roe is the
senior attorney
at the Roe Law
Firm, a law firm
specialising
in intellectual
property and
business law. Roe
regularly presents
at CLE and trade group programmes on
the benefits and pitfalls of IP.
Ted has over 15 years experience
providing clients with advice on every
aspect of business and IP issues.