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?

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