Who are copyright trolls?
The image is a gift from @WagTheCat to this site.
Copyright trolls are law firms or individual lawyers who adopted a lucrative scheme to profit from copyright infringement allegations through extortion. Copyright trolls represent holders of copyrights on movies (mostly pornography).
Troll lawyers or firms conspire with technological companies that monitor peer-to-peer (p2p) networks (BitTorrent or eDonkey2000) and find instances of alleged infringement. IP addresses, timestamps and file names are being recorded. Peer-to-peer networks survive because while downloading a file, a p2p client is also forced to upload already obtained pieces of that file to other participants, therefore trolls can claim not only illegal access to copyrighted works but also distribution. In some cases trolls themselves seed (upload) their client’s copyrighted works to p2p networks with the goal to entrap those who start sharing those works.
The next step is to match IP addresses to real people. For that purpose a troll files a lawsuit against John Does (judicial term for persons not yet known), lumping together many defendants, sometimes thousands, regardless of jurisdiction. Lumping together many people, trolls save on filing fees: a fee to file a civil lawsuit is $350; if they would file a lawsuit for each defendant separately, they would end up paying prohibitively large amount of money. Then they secure (obtain judge’s order for) a subpoena to the ISP that owns the recorded IP addresses. ISPs keep the records of dynamically assigned addresses at each moment and as such they can match IP + time stamp to a subscriber.
Once the names and contact information of subscribers accused in infringement are obtained, trolls send out virtually identical “litigation settlement” demand letters. These letters (and sometimes telephone calls) threaten defendants with costly lawsuits that can potentially result in as much as $150,000 statutory damage payments plus attorney fees. In addition, they threaten to raid your computer(s) in search for proof. To let this suit go away, trolls demand a couple of thousand dollars, increasing the amount if not paid promptly.
Profit is split among trolls, rightholders and companies that detected IPs.
It is not hard to see that this scheme is nothing else than extortion, where “settlement” is a euphemism of “ransom”. Given the settlement rate (30% and higher, especially in porno cases) this scheme is indeed lucrative, and in some cases can top the profit from a movie sale.
In most cases trolls have no intention of bringing their lawsuits to actual trial. The only goal is to obtain settlements — not judgments, which would require litigating and proving allegations. The only reason for bringing a case to a trial is to scare defendants and increase the pressure to settle.
It is not difficult to see immorality and flaws of this extortion scheme. I’ll cover only few points. Please read this blog and comments (as well as other Internet resources) to find out more.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
Why do I fight?
ArsTechnica ran a feature story about this site
and other “troll slayers” on 2/26/2013
Gill Sperlein rudely intruded my life in February 2011 when I received an email from AT&T saying that my identity was subpoenaed in relation to a gay pornography lawsuit. As any normal person, who never dealt with the law, I was stunned and upset. It took a while until I understood what a disgusting scam I was involved in as a victim. And for the record, I never shared IO Group’s filthy movies, not even heard about them.
Well, I’m a rational person, and some would expect me to act based on pure math, i.e. settle and forget. But I wouldn’t act rationally at the expense of dignity. I don’t want my name to be associated with gay pornography. I don’t want to send a message to the world that it is OK to blackmail innocent citizens.
I decided to file a motion to dismiss, and did it anonymously in a fear of retaliation. I did not expect much, but to my surprise, the court filed my motion, and Sperlein filed his opposition. I replied with detailed explanation of the scam. Again, I did not expect much, but hoped that the judge would read it and become aware of the real goal of lawsuits like this one — to extort money from defendants regardless of their guilt.
Seeing that the magistrate judge did not toss my anonymous filings, Sperlein requested to reassign the case to a district judge, and after that I filed another motion. This time my motion was struck on procedural grounds: it is not allowed to fight in a court anonymously. I had an option to file for a protective order, but decided not to: Sperlein’s goal is to get identities by any means, and a protective order is a joke — I would be known by initials, city and state. If eventually ISP delivers subpoenaed information and my location and initials are known, it will not be so hard to link my identity to the IP, and retaliation will follow. In addition, many requests for protective orders were denied in the past: some judges think that associating one’s name with gay pornography is a mere embarrassment, not a serious threat to one’s social and professional life. This may be true in San Francisco, but not in conservative states.
So I decided to start a blog to inform others about this fraud. I hope I helped some victims and inflicted some damage to troll’s business. I received many e-mails from people in similar predicaments and tried to do my best answering their questions. Reading e-mails and blog comments made me sure that my vision of what is going on is correct, and enraged me even more, especially when I read in a private email that one of Sperlein’s victims seriously considered suicide.
Judicial system is not inherently wrong, but it is very slow. Once a con artist finds a loophole in the law, he can inflict tremendous harm to society until judges eventually manage to seal this loophole when they finally realize that trolls use judicial system (hence taxpayer’s — yours — money) to enrich themselves, ruining families, lives, carriers in their quest for gold. I learned that one of the best weapons in the war against copyright trolls is publicity. So please help spread the word. E-mail, share, tweet about my posts, and follow me on Twitter.
Why lightning stroke? According to Wikipedia,
“A Scandinavian folk belief that lightning frightens away troll … the lack of trolls … in modern Scandinavia is explained as a result of the “accuracy and efficiency of the lightning strokes”.