Tag Archives: Troll

Two Strikes Against “Troll Slayer”

In the closely watched case of Blaha v. Rightscorp, a prominent self-proclaimed “troll slayer” took on copyright enforcement firm Rightscorp and tried to argue that enforcing U.S. Copyright Law against those who commit theft was an abuse of process.

According to the class action complaint:

Rightscorp describes itself to investors as a “leading provider of monetization services” for copyright owners. Rightscorp’s business model involves using federal legal process and the threat of statutory damages for copyright infringement to engage in what some call “speculative invoicing” of consumers who it accuses of having engaged in file sharing.

The Plaintiff attempts to bring a class action on behalf of all those caught infringing on two basis, the first being for abuse of process, summarized in the complaint as:

To identify potential consumers to target, Rightscorp has willfully misused this Court’s subpoena power by issuing at least 142 special DMCA subpoenas, per 17 U.S.C. § 512(h), to various Internet Service Providers (“ISPs”). These subpoenas, which were issued on this Court’s authority, but procured outside of an adversarial proceeding and without any judicial review, are so clearly legally invalid as to be a sham and abuse of the legal process.

The second claim is related to the use of “robo-calls” made to identified infringers.

This action is pending in the Central District of California, a jurisdiction well known for being strict and firm in its protections against abusive copyright enforcement.

In defense, Rightscorp argued that under California’s anti-SLAPP law, which protects against abusive litigation, their actions were not only lawful, but legitimate in enforcing copyrights against acts of theft. (SLAPP stands for Strategic Lawsuits Against Public Participation.) In essence, in this case a “troll slayer” accused Rightscorp of abusive litigation in the enforcement of copyrights against Internet pirates and Rightscorp countered with the claim that it was in fact the “troll slayer” that was litigating in an abusive manner and moved to strike Plaintiff’s claim under California’s anti-SLAPP law.

The court agreed with Rightscorp.

There is no question that the complained of conduct [by Rightscorp] satisfies the first prong of the anti-SLAPP statute. The entire claim is based on [Rightscorp’s] representations to various federal courts in order to convince those courts to issue subpoenas. This kind of action is specifically defined as protected action by § 425.16(e).

The court went on to affirm that while it was clear the Plaintiff and their counsel did not approve of Rightscorp’s enforcement of copyrights against pirates, simply not liking the law was not enough.

The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises no ulterior motive in [Rightscorp’s] use of the subpoenas….there is no allegation and no evidence that [Rightscorp] sought to do anything other than what their subpoena requests indicated – identify potential copyright infringers for the purpose of pursuing Defendants’ rights under the Copyright Act.

* * *

The second fatal deficiency in Plaintiff’s claim is that it is barred by the California litigation privilege…. Plaintiff provides no argument why those communications to the various courts in acquiring the subpoenas do not satisfy the four part test quoted above, perhaps because they obviously do.

The court summarily concluded with the biggest sting in the case:

The motion to strike is GRANTED. Attorney’s fees and costs must be awarded under California Code of Civil Procedure § 425.16(c) and are granted subject to a properly noticed motion as to amount.

With a refrain of “I fought the law and the law won” (the Clash) playing quietly, a “troll slayer” must now pay.

In another motion, there was an attempt to bring in the attorney or “General Counsel” of Rightscorp as a member of the company’s “management.” The court dismissed this defendant finding:

There is no evidence that [General Counsel] was involved in any specific acts directed toward any of the class members in California. … Plaintiff has demonstrated nothing more than that [General Counsel] provides general intellectual property advice to Rightscorp, which happens to be based here. And while Rightscorp has taken certain measures in California, there is no evidence – or even an allegation – that [General Counsel’s] advice is somehow California-specific rather than advice that applies throughout the United States…. In short, [General Counsel’s] connection to California solely through his client, Rightscorp, is the kind of fortuitous contact with a forum that does not provide the kind of substantial connection with the forum needed for the exercise of personal jurisdiction.

With one claim gone, and a defendant dismissed, Rightscorp still faces a surviving claim directed at its use of “robo-calls” to infringer.  But they face this claim with an award of attorneys fees from the Plaintiff.

The case is John Blaha v. Rightscorp, Inc., et al., 2:14-cv-09032, Central District of California, (Judge Dale S. Fischer).

Relevant documents:

John Blaha v. Rightscorp, Inc., et al., 2:14-cv-09032, Dkt. 71 (C.D. Cal, May 8, 2015) – Order striking Plaintiff’s claim and awarding fees.

John Blaha v. Rightscorp, Inc., et al., 2:14-cv-09032, Dkt. 72 (C.D. Cal, May 8, 2015) – Order dismissing defendant



Debunking the Troll Myth

With so much anecdotal evidence, real and serious investigation of the expansion of copyright litigation is hard to come by. But in an article published by Nova Southeastern University in a survey of over 1,500 BitTorrent related cases the author reviews the common defenses asserted, their general inadequacy, and concludes:

To the knowledge of the author, only three BitTorrent cases have gone to trial resulting in a judgment being entered. All three of these cases resulted in a judgment for the copyright owner, with substantial damages being awarded.

* * *

In the end analysis, the author found no cases in which a file-sharing defendant went to trial, and prevailed. The more common theme was a blanket denial, followed by an attempt to destroy the evidence.

The full article is worth reading for anyone who has any interest in this litigation:

Copyright Infringement Litigation Over BitTorrent File Sharing: Truth or Troll?




Court Restores Civility To Civil Litigation – Infringer cannot call the plaintiff a “troll.”

With the growing animosity and tension between rights holders and creators and those who are accused of infringing rights (or sometimes accused of outright theft) a Judge has drawn a line and ordered that a rights holder seeking to enforce their rights cannot be called a “troll” in court.

Calling the term “disparaging” and “irrelevant” the Judge has limited petty name calling by defendants and instead demanded they focus the case on what is important: infringement and liability.

The opinion may be read here: IP Ventures v. Symantec

Misguided BitTorrent Defenses / Illinois Misfire

A common refrain in many of the BitTorrent litigation cases is “an IP address is not a person.” And this is true. But this refrain is repeated so often that many believe it to be a defense to a claim of copyright infringement. This is false.

What a plaintiff needs in a copyright case is evidence. An IP address may not be a person, but when it is tied to a specific person it is evidence. Unlike a criminal case, a plaintiff does not need evidence “beyond a reasonable doubt” or even “clear and convincing evidence.” A claim for copyright infringement is tried on a “preponderance” of the evidence standard. This means the scales of justice, all things being weighed, tip one way or the other even ever so slightly. For people that might like to think of it in percentages, a preponderance is not 90%, 75% or even 51%, it is more like 50.000001%.

The problem with may defenses in BitTorrent litigation is that defendants, and often their counsel, defend cases like they were defending a criminal case. Defendants often raise arguments supporting a “reasonable doubt.” This is understandable as those accused are being accused of theft, and there are possible criminal repercussions. But this is not the standard for civil copyright infringement claims. A reasonable doubt defense might sound good on TV, and is proper when a defendant is facing jail, but it falls flat in the real world of civil litigation and copyright infringement claims.

One such misguided example can be found in the pending case of TCYK v. Does 1-121, 3:13-cv-3127, C.D. Ill.   In that case a defendant filed a motion to dismiss arguing an IP address alone is not enough and raising the claim that it is possible someone else used his Wi-Fi, that he had neighbors who might have downloaded the movie in question, that the plaintiffs were “copyright trolls,” and many of the other common stock “reasonable doubt” defenses.

This turned out to be a waste of time. The court made clear, “Plaintiff need not conclusively establish that Defendant Gordon was using the IP address” and the motion was summarily denied.

The defendant in question has now been ordered to answer the complaint against him by October 15, 2014.

Relevant documents:

TCYK v. Does 1-121, 3:13-cv-3127, Docket 38 – Motion to Dismiss

TCYK v. Does 1-121, 3:13-cv-3127, Docket 40 – Opposition

TCYK v. Does 1-121, 3:13-cv-3127, Docket 48 – Opinion and Order

Defendant’s Motion to Quash “Demonstrates A Lack of Understanding” of Basic Rules

No Traction With Empty Allegations In Northern District of Illinois

Following the growing trend of judges nationwide, District Judge John W. Darrah has summarily dismissed a defendant’s claims that a subpoena related to a complaint filed for copyright infringement via BitTorrent was part of a “fishing expedition,” a “bogus lawsuit,” and “troll case” for extortion that undermined the judicial process.

The court summarily rejected all of the arguments as hollow and made clear:

The information sought is particularly discoverable, as Plaintiff would “otherwise be unable to maintain . . . litigation, as it has no other way of identifying the defendants.” TCYK, LLC v. Does 1-87, at *2. Any argument that the subpoena should be quashed because the information will not identify infringing parties “demonstrates a lack of understanding of the basic scope of discovery under federal rules… Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” reFX Audio Software, Inc. v. Does 1-111, 13-cv-1795, 2013 WL 3867656 (N.D. Ill. July 23, 2013) (citing Fed.R.Civ.P. 26(b)(1)).

The outcome of this: Due to defendant’s (or their attorney’s) “lack of understanding” the costs and fees associated with this case went up. Defendants who willfully infringe as occurs with BitTorrent infringement, pay all costs and fees for both sides. As such a defendant is now likely going to have to pay not only for their own “lack of understanding,” but they will likely have to pay the costs and fees of the plaintiff as well.

Worth reading for an appreciation of exactly what is going on are the Motion to Quash (Docket 15), the Opposition (Docket 19) and the Memorandum Opinion and Order of the court (Docket 26.)

14-cv-1381 – Docket 15 : Motion to Quash

14-cv-1381 – Docket 19 : Opposition to Motion to Quash

14-cv-1381 – Docket 26 : Memorandum Opinion and Order

Who’s Trolling Who?

In the world of online media rights, few issues are met with more religious zeal than the issue of the copyright troll.   On the one side there are the parties labeled as trolls who sue people who download movies. And on the other are those who claim to be innocent, or as is more often the case, claim they only downloaded a crappy movie that was not even worth the price of a theatre ticket and the attorneys that defend the “free internet.” But it occurs to me, the troll in this paradigm may be mislabeled.

With growing online rights enforcement by parties such as X-Art, filing thousands of Malibu Media v. Doe cases nationwide, and other parties such as Voltage Pictures (The Company You Keep, Dallas Buyers Club, Killer Joe, etc) there are also a growing number of attorneys that claim to be defenders of those that get caught up in cases like this with their marketing promise to defend and save the free internet from the trolls.

But what is really going on? First look at the name, copyright troll or just troll. Slurs and broad derogatory titles are at their base discriminatory and dehumanize their targets. More commonly found in the context of racial or ethnic slurs, they permit the user to maintain a perceived position of superiority in their beliefs regardless of facts and law to the contrary. After all, how could anyone be wrong when the other side is a troll?

So what is a troll, and in particular, what is a copyright troll? While a copyright troll has no formal definition, the related term patent troll has been defined in a number of states, starting with Vermont and at least 9 other states thought their anti-troll laws. In these laws, all basically based on the Vermont model, there is a general acknowledgement

“The protections afforded by the federal patent system create an incentive to invest in research and innovation, which spurs economic growth. Patent holders have every right to enforce their patents when they are infringed, and patent enforcement litigation is necessary to protect intellectual property.”

So as a baseline, everyone agrees rights are good and should be protected. And the law goes on to discuss that while patents are good, bad faith attempts to enforce patents, a/k/a “trolling” is bad and lists the factors to evaluate what should be considered trolling. And they are:

(1) The demand letter does not contain the following information:

(A) the patent number;

(B) the name and address of the patent owner or owners and assignee or assignees, if any; and

(C) factual allegations concerning the specific areas in which the target’s products, services, and technology infringe the patent or are covered by the claims in the patent.

(2) Prior to sending the demand letter, the person fails to conduct an analysis comparing the claims in the patent to the target’s products, services, and technology, or such an analysis was done but does not identify specific areas in which the products, services, and technology are covered by the claims in the patent.

(3) The demand letter lacks the information described in subdivision (1) of this subsection, the target requests the information, and the person fails to provide the information within a reasonable period of time.

(4) The demand letter demands payment of a license fee or response within an unreasonably short period of time.

(5) The person offers to license the patent for an amount that is not based on a reasonable estimate of the value of the license.

(6) The claim or assertion of patent infringement is meritless, and the person knew, or should have known, that the claim or assertion is meritless.

(7) The claim or assertion of patent infringement is deceptive.

(8) The person or its subsidiaries or affiliates have previously filed or threatened to file one or more lawsuits based on the same or similar claim of patent infringement and:

(A) those threats or lawsuits lacked the information described in subdivision (1) of this subsection; or

(B) the person attempted to enforce the claim of patent infringement in litigation and a court found the claim to be meritless.

(9) Any other factor the court finds relevant.

While it is easy to have a knee-jerk reaction and claim anyone and everyone that sues for copyright enforcement is a troll, (just as it is easy to claim everyone who is sued is a lying pirate and thief) the rules are more complex.  Trolling is a specific type of activity.

Similarly, the law outlines factors that weight against being considered a troll, those being:

(1) The demand letter contains the information described in subdivision (b)(1) of this section.

(2) Where the demand letter lacks the information described in subdivision (b)(1) of this section and the target requests the information, the person provides the information within a reasonable period of time.

(3) The person engages in a good faith effort to establish that the target has infringed the patent and to negotiate an appropriate remedy.

(4) The person makes a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent.

(5) The person is:

(A) the inventor or joint inventor of the patent or, in the case of a patent filed by and awarded to an assignee of the original inventor or joint inventor, is the original assignee; or

(B) an institution of higher education or a technology transfer organization owned or affiliated with an institution of higher education.

(6) The person has:

(A) demonstrated good faith business practices in previous efforts to enforce the patent, or a substantially similar patent; or

(B) successfully enforced the patent, or a substantially similar patent, through litigation.

(7) Any other factor the court finds relevant.

Key in this is that anyone that is an inventor or creator, or has a business related to the rights outside of litigation, or anyone that invested in the original rights being enforced is not a troll under the law.   Many of those that are labeled as trolls, Malibu Media, Voltage, etc. are by definition not trolls. These are companies that invest in films, make films and sell films. Under the law, the vast majority of rights enforcement actions are not troll actions and anyone that claims they will help you “fight a troll” falsely uses that term to support a claimed position of superiority in their beliefs regardless of the facts and law to the contrary.

When I see all the attorneys lining up offering to defend against the actions of copyright trolls, usually for what they claim to be a reasonable fee of a few thousand dollars, I wonder why they need to rely on the derogatory and legally false term of “troll” to solicit business. And while much can be said about lawsuits filed for thousands of dollars against thousands of infringers, I wonder how much money is taken in by those that claim they are defending the free Internet and claiming the mantle of moral superiority.

It occurs to me that there may be more money being paid to those that defend these cases than is paid by those that are filing them.

Who’s trolling who?