Watch out for the Trolls, they’ll get you… they got us!
This month we offer for your outrage an issue that’s big enough to be a problem for everyone but also hits very close to home. You’re no doubt aware of Internet Trolls, the nasty little cretins that dump scatological insults and barely-literate slurs on comment boards across the Net. Trolls can be nasty when it comes to things like cyberbullying or spreading propaganda, but they’re mostly bark-without-bite. You may not know about the breeds of Troll that have both bark and bite, sniping at the unsuspecting from law offices instead of basements, and extorting millions from people who have little choice but to pay up. These greasy weasels seemed an ideal subject for News To Make You Furious for a simple reason: we know how Furious it made US when we got bitten by one recently…
The genus “Troll” has several species oozing through the InterTubes. They are universally annoying and some can even be dangerous in the real world, but in this article we aren’t talking about the Trolls who are just rude, bigoted, or vulgar. We’re talking about Copyright Trolls, the ones who spend their lives enforcing legal rights on intellectual property they don’t own and have no intention of ever exploiting. Within this species there are even a few sub-species focusing on different types of intellectual property with slightly different strategies. For example, some companies specialize in suing over patent rights while others pursue movie downloaders on platforms like BitTorrent. Some of those even specialize in particular types of movies… going after porn downloaders carries the additional threat of exposing a person’s porn viewing habits to the world. Don’t worry; we didn’t get bitten by one of those but by a close relative, the Stock Image Troll, which goes after websites with unlicensed pictures on them. No matter the exact species of Troll the basic approach is the same…
Fundamentally it’s not much more sophisticated than the “Nice business you’ve got there; shame if something happened to it” line of a classic protection racket…
- Find a pool of potential prey. It can’t be targeted individuals because building an evidence-based case against an individual isn’t worth the time/money. It has to be a large group that’s inexpensive to reach. Movie and music scammers collect IP addresses of everyone who downloads their materials, while in cases like ours Trolls use software to scan the Net for any website with a copy of their image.
- Once the Troll finds their pool they blanket it with threats. For movie downloads they put all the IP addresses of downloaders into a single “John Doe” filing, get a court order forcing the IP to “unmask” the people behind the addresses, then send threatening letters to all the individuals. For people with single offending images the process is even easier because the court order isn’t necessary. The Troll just sends a threatening email to the domain holder of the target website.
- The threat letter includes a demand to remove the image but of course that won’t solve the problem. The letter also threatens legal action with large monetary penalties, not to mention the cost of defending the suit itself or paying the opponents’ legal costs if you lose. The Troll offers to put everything aside if the target ‘settles’ for anywhere from a few hundred to a few thousand dollars.
- The Troll slithers back into his cave, turning about 30% of his letters into gold.
Why it’s wrong…
No one should be Furious about a company defending its intellectual property, but that’s not what this is. Here’s FightCopyrightTrolls.com to explain exactly why this abuse of legitimate copyright law is so flawed…
Weak evidence. A recorded IP address is not equal to a person. There are many cases (open wireless network, IP spoofing, hacked connections, human error etc.) when innocent people are accused.
Perversion of the Law spirit. Mixing innocent people with those who indeed tried to obtain their clients’ works, trolls violate Blackstone’s formulation. Presumption of innocence is also trumped, as accused are required to proof their innocence.
Incentive to settle, even if innocent. Given the disproportionality of potential punishment and impeding attorney fees, it is cheaper and less time-consuming to settle than to litigate. In addition, fear to be named in a lawsuit and hence be associated with a porno case, which can ruin families and careers, creates an additional pressure. Consequently, many innocent people indeed opt to settle.
Due process violation. Defendants are not properly represented from the beginning. There is a catch-22 situation: in order to fight against a subpoena to ensure that the names won’t be revealed, those who chose to fight must reveal their names: courts do not allow anonymous parties to participate in the process. If an individual decides to fight openly, he becomes a target for selective prosecution by a troll: trolls need it to frighten others and discourage opposition.
Using heavy weaponry against unprepared individuals (inequality of arms). Lawyers possess substantial knowledge that they use against general public. Besides inducing fear to coerce settlements, they also engage in deceptive promises: suggesting that a defendant will be spared if he explains his innocence, they provoke self-incriminating statements and never hesitate to use defendant’s words against him.
Deceptive practices. In order to increase settlement rate, trolls resort to lies. They conceal important information from the Court. They make unrealistic and unnecessary threats to defendants. They grossly overstate the damages to copyright holders caused by infringement. As mentioned above, they provoke self-incriminating statements from not litigation-savvy defendants.
…and if we could add one item to FightCopyrightTrolls’ list we’d add a #7… they run when confronted. If a person can put together the money to hire a lawyer and fight, the Troll will frequently back down. They don’t usually have a case that would actually prevail in court and they don’t want publicity about their cozy little scheme. What if an appeal of a case they were involved in resulted in a precedent that closed them down, or even worse, prompted legislation to restrain them? Can’t have that!
Well, not actual people, but Lawyers… and that’s not a Lawyer joke! We run-of-the-mill people don’t have the money or weapons to confront Trolls. As a wise man once said, “We pay our attorneys by the hour. They pay theirs by the year.” Individuals would go broke defending themselves against Trolls paid to be in court. Beyond that, non-lawyers don’t understand the weapons of the law that the Trolls have sharpened to a fine edge. To win against a Troll you have to have the weapons and strategy for a long fight and Lawyers are positioned to do it. Working with groups like the Electronic Frontier Foundation and FightCopyrightTrolls.com they’ve been developing strategies, sharing legal tips, and most importantly, filing suit to send Copyright Trolls back to their caves. Judges aren’t blind to the Trolls corruption of the Justice System, so they’re becoming conscious and creative in the way they decide these cases. For example, Oregon Judge Stacy Beckerman allowed a Troll to dismiss a copyright case, but with the caveat that the Troll had to pay the defendant’s legal fees. From Judge Beckerman’s ruling…
“Plaintiffs moved to dismiss early in the case, prior to discovery, which is generally favored. However, the timing of Plaintiffs’ voluntary dismissal here (just after Sheldon requested far-reaching discovery at the Rule 16 conference) supports Sheldon’s argument that Plaintiffs file these copyright infringement cases only to achieve a quick settlement without any meaningful litigation. That approach, especially when coupled with a voluntary dismissal when the quick settlement does not materialize, supports an award of costs and fees incurred to defend the action prior to the voluntarily dismissal. To find otherwise would allow plaintiffs to file hundreds of these copyright infringement actions, force subscribers and alleged infringers to incur defense costs and fees, and then dismiss any actions that do not result in a quick settlement, without any consequences to the plaintiffs. This Court cannot support that outcome.”
The decision is being appealed, and for good reason… it would be a dangerous, Troll-killing precedent if allowed to stand.
Don’t feed the Trolls!
To be clear again, no one has a right to steal. People invest time and money to create intellectual property of all types and they have to be able to enforce their legal rights to that property. They can even hire outside companies to patrol those rights and punish infringement, but there are ways to enforce those rights fairly within the law. Just a suggestion here, but perhaps a property-holder could be required to offer offenders the opportunity to remove an image, or purchase a pirated song or movie at retail price, or some other option to “make good” before the Troll could implement further action? If it was a good-faith mistake or one-off offense then the problem would be solved; if the offender persisted in using the image without paying or thought they had the rights to free media then that would be an appropriate use of the courts. In the meantime the Trolls who bully our citizens using the courts we provide would be cut off from the money they need to survive.
And you know what happens to Trolls you don’t feed? They starve.
These are three of the biggest groups fighting Copyright Trolls. Any one of them will have all the Troll-Fighting information you could ever want.
But here are the articles that caught our attention for this article…
Copyright Trolls by Electronic Frontier Foundation
When the Recording Industry Association of America (RIAA) declared an end to its litigation campaign against music fans who used peer-to-peer technology to share music, many people thought that would be the end of mass copyright litigation—after all, hadn’t the RIAA demonstrated that suing customers was no way to improve the bottom line? Apparently not everyone got the memo. Since then, at least three groups have begun 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 minimize their court costs and exploiting the massive damages in copyright law in order to pressure defendants into settling quickly.
Stock Image Trolls Beware! Porn Trolls Hit with Class Action Lawsuit on CopyrightTrolls.com
First, Prenda came crashing down, then the Federal Investigation, followed by a rather entertaining indictment, and now the victims are striking back by filing a Class Action Lawsuit… The days of threats of litigation, extortion, fraud and money laundering, are coming to an end for the copyright trolls. Need I mention Vincent K. Tylor, Poet Linda Ellis, Getty Images, and the dozens of other image copyright trolls??
A Pattern Of “Brazen Misconduct And Relentless Fraud”, by Matthew Sag on MatthewSag.com, Mar 2017
Who Are Copyright Trolls? By FightCopyrightTrolls.com
Received a Letter from ISP or troll? Take a deep breath and read By FightCopyrightTrolls.com
When Patents Attack, Alex Blumberg and Laura Sydell on This American Life, Jul 2011
The Rise of Copyright Trolls, by Dunner Law, Mar 2017
Unlike the well-known patent trolls, “copyright trolls” have received comparatively less attention in Congress and in the media. A copyright troll is a business with the principal purpose of enforcing copyrights for which it has only a limited ownership interest. The troll’s key motivation is not to make actual use of the work; rather, it is to threaten litigation to extort settlement money. These trolls operate across a wide range of industries – from pornographic films to stock images to publications – impacting thousands of consumers and businesses alike. How did copyright trolls proliferate?
Defense Against the Dark Arts of Copyright Trolling by Sag and Haskell in the Iowa Law Review, Mar 2017
In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls.
Greed And The BT Copyright Troll Settlement Factories, DieTrollDie.com, May 2017
Magistrate Judge To Copyright Troll: You May Cut And Run If You Want, But First Compensate Defendant, FightCopyrightTrolls.com, Sep 2017
‘Copyright Trolls’ Hit With Class Action Lawsuit For Theft by Deception, by Ernesto on TorrentFreak.com, Jan 2017
Greed And The BT Copyright Troll Settlement Factories (AKA: “Don’t Be A Dick”) on DieTrollDie, May 2017
Prenda Is Gone, But Copyright Trolling Continues, by Matthew Sag, Mar 2017
Speculative Invoicing And “Pay Up Or Else” Schemes For Copyright Infringement, on CitizensAdvice.uk