Copyright Trolling is a pernicious litigation strategy that has become popular with a certain sort of lawyer because it pays pretty well, and it pays the lawyer, not his client. The strategy uses and relies on the federal court system, but it’s not a legitimate use of the system, just like SWATting is not a legitimate use of the police. Here’s how trolling works:
- Some unidentified Bad Person gets a copy of a movie. In theory, the Bad Person has copied a DVD or recorded a movie at the theater, but many movies that show up in trolling suits appear to come from alternate, insider sources. For example, some movies have showed up on the Internet before they were even released!
- The Bad Person posts the movie for “free” Internet download using BitTorrent, which is a program and computer protocol for distributing large files (such as movies) quickly and efficiently.
- Many people set their computers to download some or all of the movie from the Bad Person (and, due to the way BitTorrent works, from each other’s computers as well).
The people who pay the bill for the downloaders’ Internet access will become the trolling targets.
- Another person participates in BitTorrent with the downloaders, exchanging tiny snippets of the movie with the downloaders’ computers. This person also records the computer addresses (“IP Addresses”) of those computers.
- Next, the IP addresses are split up by movie and approximate location, then sold to lawyers who want to engage in copyright trolling.
- These lawyers file lawsuits against “John DOEs” — they claim “Somebody stole the movie, but we don’t know who. We only know the IP address. So we want to investigate and find out whose computer was used to steal the movie.”
- Judges usually grant permission to investigate, so the troll lawyers send subpoenas to Internet Service Providers like Comcast and Time Warner, asking who pays the bill for use of the IP address purchased in step 5.
- The ISP usually sends a letter to the trolling target, warning them about the lawsuit; then the target’s name and address are given to the lawyer.
- In the past, the lawyer would send a “pay up or else” letter to the target, but this approach backfires sometimes, so it’s not so common any more. These days, some lawyers replace the “John DOE” name in the lawsuit with the name of the subscriber (which also backfires sometimes). However, more sophisticated lawyers ask the judge for a second round of “early discovery:” they say “we still don’t know who stole the movie, but if we could ask the subscriber some questions under oath and snoop around on all their computers, we’re sure we’ll be able to find out.”
- Judges often grant permission for the questioning under oath, and sometimes for the computer snooping too.
- The troll lawyer makes a modest effort to bring the Internet subscriber in for questioning, but he really doesn’t care too much whether he succeeds. If he gets to question the subscriber, he’s practically guaranteed to find some reason to name him as the defendant, and if he can’t find the subscriber, he’ll tell the judge that the subscriber is a horrible sneaky person who is ignoring the judge’s order and disrespecting the court.
Either way, the troll lawyer gets to make the subscriber look bad to the judge, and — this is critical — run up more of his own time working on the case. (We’ll see why this is important shortly.)
- Eventually, the troll lawyer will name the Internet subscriber as the previously-unknown person who stole the movie. There will be a little bit of legal wrangling, mostly chosen for its ability to inconvenience or intimidate the trolling target, or to increase the troll lawyer’s time and expenses. If the target fights back (because, for example, he didn’t download the movie!) he’ll have to pay his own lawyer, too.
- Finally, long before there’s any chance of a trial, the parties will settle, and the troll lawyer moves on to his next victim. (In reality, the lawyer is running the same scam against dozens or hundreds of people at the same time, buying new IP addresses and filing new cases continuously.)
So…what’s wrong with this? After all, stealing movies is copyright infringement, and people shouldn’t get away with it! That’s absolutely true, but as Mom used to say, “two wrongs don’t make a right.”
Here’s a brief list of what’s wrong:
- Copyright trolling doesn’t stop (or even discourage) people from downloading movies. (If it did, it wouldn’t be a problem, because it would have stopped everybody and the trolls would be out of business.)
- Copyright trolling doesn’t force infringers to pay back movie owners for the harm they’ve suffered. The troll lawyers generally make many times more from each case than the movie owner receives, and some movie owners have complained that they’re not even getting the money they were promised from these cases.
- Copyright troll cases almost never go to trial — they just get dismissed after a lot of wasted time and money. So nobody ever finds out who downloaded the movie (if anybody did), or whether the troll-lawyer’s client even owns the movie in the first place. (Believe it or not, this is a serious question that has never been answered for a lot of copyright-troll lawsuits!)
- Copyright law allows troll lawyers to claim their fees from the trolling target, so someone who fights is risking two times the legal fees: he’ll have to pay his lawyer, and may have to pay the troll lawyer as well. This is why troll lawyers love to run up their time on a case: it increases the target’s risk! If you’re threatened by one of these cases, you can count on the other side claiming at least $5,000 in legal fees, even if you just want to admit wrongdoing and pay the fine.
- The fine, incidentally, can be anything from $200 to $150,000. So you could end up paying $5,000 in legal fees on top of a $200 fine (plus whatever your own lawyer charges).
The only person that works out for is … wait for it … the troll attorney.
There’s a reason legitimate movie companies like Disney, Paramount and Fox don’t engage in copyright trolling: it’s just a lawyer’s scam that doesn’t stop copyright infringement.
However, as long as judges are willing to go along with copyright-troll lawyers, it’s a scam that works to rip off Internet subscribers, whether they’ve illegally downloaded a movie or not. If you’ve been notified that you’re involved in one of these lawsuits, contact Mersenne Law for a free initial consultation.