Posted By: Debora Ilea
Lawyers have always been a savvy bunch; so, it is little wonder that they are now taking unique and creative approaches to the practice of law to compensate for the economic woes of the current times. Some are restructuring their billing systems, relying more on flat fee and other billing strategies than on hourly billing. Some are taking their operations to the internet and eliminating the overhead of maintaining a physical office space. Some are branching out to other professions and using their law degrees to enhance their marketability in those professions. And some are turning into copyright trolls, forming companies that buy up the copyright rights to literary works and troll the internet for infringers to sue.
According to Wikipedia, a copyright troll is one who “enforces copyrights it has acquired from others for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing its own works for paid distribution.” Wikipedia, Copyright Troll, https://secure.wikimedia.org/wikipedia/en/wiki/Copyright_troll (last updated October 19, 2010). Of course this concept is nowhere near new. Ambulance chasers have been doing it for centuries. The insurance industry has been plagued by it nearly since its inception. In the patent arena, trolls have been buying patents of bankrupt companies and suing would-be infringers for at least a couple decades. It turns out that, even in the copyright arena, the concept is not novel.
Credit for being the first copyright troll falls at the feet of a gentleman named Harry Wall. Mr. Wall, who was married to a singer, set up a company in the mid 1800s whose sole purpose was to collect fees for infringing performances of songs – usually the songs of dead composers whose agents gave Mr. Wall power of attorney. By all accounts, it appears that he was a man of unsavory character (and thus the reference to trolls?) who, ironically, was at one time imprisoned for unlawfully receiving property obtained under false pretence (i.e. receiving stolen goods). See Isabella Alexander, The Birth of the Performing Right in Britain, in Privilege and Property: Essays on the History of Copyright 321, 339 (Ronan Deazley, Martin Kretschmer, & Lionel Bently eds., Open Book Publishers 2010) (available at http://books.google.com/books?id=SRBkCOC8d-4C).
More recent alleged copyright trolls include The SCO Group, who bought Unix from Novell in the mid 1990s only to demand licensing royalties from some 1,500 companies, including IBM, in an effort to destroy Linux. These actions landed them in the middle of litigation that only recently resulted in a ruling that the copyright interests did not belong to them in the first place – thus circumventing their enforcement efforts and seriously jeopardizing the case against IBM which was still outstanding. See SCO Group, Inc. v. Novell, Inc., 2010 U.S. Dist. LEXIS 57545 (D. Utah June 10, 2010) and David Kravets, Copyright Troll Loses High-Stakes Unix Battle, http://www.wired.com/threatlevel/2010/03/unix-copyrights/#ixzz0yUsnFxzG (last updated March 31, 2010).
Another notable potential copyright troll is adult content publisher, Perfect 10. Their litigation efforts include suits against Google, Amazon, and Microsoft for showing thumbnails of photos which were copyrighted to Perfect 10. They had little success with those suits, which went all the way up to the 9th Circuit Court of Appeals and ended in rulings that thumbnails which showed up in search engine results did not qualify as a “display” sufficient to support an infringement claim because “the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that ‘displays’ the content.” Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 843 (C.D. Cal. 2006). More recently, Perfect 10 is going after Rapidshare, a file hosting company who has given cause for concern to several copyright holders and whose new countersuit against Perfect 10 accuses them of being nothing more than a copyright troll that essentially runs “a paralegal service masquerading as a porn company” and as having “abandoned its ambitions to be the next Playboy to instead go on a litigation rampage.” Eriq Gardner, Perfect 10: porn publisher or copyright troll?, http://www.reuters.com/article/idUSTRE65E0UE20100615 (last updated June 15, 2010).
These examples, however, pale in comparison to the activities of Righthaven, LLC, the latest copyright troll to hit the courts with scores of (frivolous?) lawsuits. At least, SCO and Perfect 10 had other business interests, and their suits originated in or were connected to those business interests. Not only does Righthaven not have any business interest other than suing alleged copyright infringers, it is possibly the first copyright troll to be owned and operated by an attorney. Steve Gibson of Las Vegas, Nevada, purchased copyrights to old articles published by Nevada’s largest newspaper, formed the company, and, armed with a “proprietary technology,” began scouring the internet for infringers to sue. His business model has been described as an “unusual shoot-first, ask-questions-later approach to IP litigation.” Joe Mullin, Is This the Birth of the Copyright Troll?, http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202466627090 (last updated August 16, 2010).
Mr. Gibson believes himself to be the champion of a cause and is surprised that copyright owners have not done what he is doing until now. (Perhaps he has not heard of the RIAA.) He has told interviewers that “media companies’ assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.” Thom Holwerda, After the Patent Troll, Enter the Copyright Troll, http://www.osnews.com/story/23767/After_the_Patent_Troll_Enter_the_Copyright_Troll, (last updated September 6, 2010).
The value Mr. Gibson refers to is apparently easily quantifiable. Righthaven usually demands $75,000.00 from defendants, and occasionally their domains, but will “settle for a few thousand dollars.” David Kravets, Second Newspaper Chain Joins Copyright Trolling Operation, http://www.wired.com/threatlevel/2010/08/copyright-troll-expanding (last updated August 30, 2010). A few thousand dollars times a few hundred cases equals a few hundred thousand dollars in income for this year alone generated by lawsuits to enforce copyrights on works Mr. Gibson had absolutely no part in creating against parties that are not sophisticated enough to follow “the DMCA’s safe harbor provisions closely enough to gain the immunity from copyright suits that those provisions offer.” Joe Mullin, Is This the Birth of the Copyright Troll?, http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202466627090 (last updated August 16, 2010).
Mr. Gibson is also surprised at the negative attention his efforts are receiving. It is little wonder that people are taking notice and getting upset considering he has filed over 100 suits this year – all without a single pre-suit Digital Millennium Copyright Act takedown notice or cease-and-desist letter – and that the targets of these suits include political blogs on both sides of the isle, a political party, and even a couple of the newspaper’s own sources. However, lay people and his defendants are not the only ones who are not impressed with his shenanigans.
The Electronic Frontier Foundation (EFF), founded in the early 90s to defend freedom on the internet, has taken notice of the multitude of suits. The EFF is concerned that, because these suits often “target the operators of political websites who re-publish newspaper stories, [they will have the effect of] chilling political speech” on the internet and has begun offering assistance to Righthaven defendants. Eva Galperin, EFF Seeks to Help Righthaven Defendants, https://www.eff.org/deeplinks/2010/08/eff-seeks-righthaven-defendants, (last updated August 25, 2010).
The courts are also getting increasingly frustrated with Righthaven. The Nevada Court presiding over Righthaven’s most recent suit, against the Center for Intercultural Organizing of Portland, Oregon (CIO), just gave Righthaven until the middle of next month to show cause as to why the suit should not be dismissed under the Copyright Act’s fair use exception: “the fair use of a copyrighted work … for purposes such as criticism, comment, [or] news reporting … is not an infringement of copyright.” 17 U.S.C. § 107. See Matthew Lasar, Nevada court hits copyright troll with Fair Use surprise, http://arstechnica.com/web/news/2010/11/nevada-court-hits-righthaven-with-fair-use-surprise.ars, (last updated November 25, 2010). Of course, this should come as little surprise to Righthaven considering last month’s ruling by the United States District Court for the District of Nevada in Righthaven LLC v. Realty One Group, Inc., 2010 U.S. Dist. LEXIS 111576 (D. Nev. Oct. 18, 2010) dismissing that case under the fair use exception. What is surprising is that CIO has not had an opportunity to raise fair use yet as they are waiting on the court to rule on their jurisdiction and standing arguments. The court passed over the defendant’s jurisdiction and standing arguments and raised fair use sua sponte, likely seeking the quickest way to get the case closed and off its docket.
It is hard to say whether Gibson and Righthaven will be required to discontinue their current business practices in the long term – especially considering the fact that, despite the recent decisions against it, Righthaven is looking at expanding to other states and continuing on its trolling way. Maybe the courts will stop him by dismissing his suits and slapping him with sanctions for frivolous filings. Or maybe they will not, and one day the troll will replace the shark as the official mascot of the profession.