Defense Against the Dark Arts of Copyright Trolling
Loyola University Chicago School of Law
Date Written: March 28, 2017
In this Article, we offer both a legal and a pragmatic framework for
defending against copyright trolls. Lawsuits alleging online copyright
infringement by John Doe defendants have accounted for roughly half of all
copyright cases filed in the United States over the past three years. In
the typical case, the plaintiff’s claims of infringement rely on a poorly
substantiated form pleading and are targeted indiscriminately at
non-infringers as well as infringers. This practice is a sub-set of the
broader problem of opportunistic litigation, but it persists due to certain
unique features of copyright law and the technical complexity of Internet
technology. The plaintiffs bringing these cases target hundreds or
thousands of defendants nationwide and seek quick settlements priced just
low enough that it is less expensive for the defendant to pay rather than
to defend the claim, regardless of the merits of the claim.
We report new empirical data on the continued growth of this form of
copyright trolling in the United States. We also undertake a detailed
analysis of the legal and factual underpinnings of these cases. Despite
their underlying weakness, plaintiffs have exploited information
asymmetries, the high cost of federal court litigation, and the extravagant
threat of statutory damages for copyright infringement to leverage
settlements from the guilty and the innocent alike. We analyze the
weaknesses of the typical plaintiff’s case and integrate that analysis into
a comprehensive strategy roadmap for defense lawyers and pro se defendants.
In short, as our title suggests, we provide a comprehensive and useful
guide to the defense against the dark arts of copyright trolling.
Notes: Note that this version contains substantive revisions to the
versions posted prior to March 28, 2016.
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