1. Copyright Trolling An Empirical Study of “John Doe” Litigation Prof. Matthew Sag, Loyola University Chicago School of Law July 10, 2014

2. Background I Copyright is a private right, not typically enforced by the State. U.S. Copyright allows for statutory damages without evidence of copyright holder’s loss or infringer’s unjust enrichment. BitTorrent is a very efficient P2P file sharing system capable of lawful and unlawful uses. A BitTorrent swarm usually has 1000s of participants. Technologically sophisticated copyright owners can identify participants by IP address. 2

3. Background II John Doe Lawsuits  Plaintiff files suit in the form “Digital Sin v. Does 1 through 5000” – One filing fee ($350) – Cases are not intended to go to trial  Plaintiff files a motion for early discovery to obtain names + addresses from ISPs  Plaintiff demands settlement (threatens exposure, statutory damages) – Does not usually bother to serve defendants so named – $2,000 to $4,000 settlements are common 3

4. How Common Are John Doe Copyright Suits? 4

5. Copyright Trolling DATA 41,769 cases  Filed between January 01, 2001 and March 31, 2014  Nature of Suit = Copyright (820)  All U.S. District Courts (does not include appeal dockets) John Doe  Search for “doe” “does” + manual review Number of Does  From case title, e.g. “Digital Sin, Inc v. Does 1-208” + hand correction on an ad hoc basis. Pornography  Plaintiff is a known pornographer, Google, IMDB  All/nothing assumption 5

6. Copyright Trolling Data Sources: PACER (maintained by the Administrative Office of the U.S. Courts) Bloomberglaw (dockets) IMDB Google 6

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8. Implications 8

9. 1. Are these plaintiffs “trolls”? 2. The synergy of statutory damages + joinder + leverage 9

10. = Troll? Copyright trolls, patent trolls  Patent literature focuses on entity status, e.g. “non-practicing entity” synonymous with troll in the eyes of many.  Others have applied this same understanding to copyright, e.g. Righthaven (NPE, Sham Owner) suits against blogs etc. 10

11. = Troll? Not illegal, many cases have merit  Troll should mean something other than meritless in the R.11 sense  Meritless in terms of the objectives of the system  Litigation not driven by the merits (the threat of statutory damages means merits don’t matter that much) Motive  RIAA used John Doe suits as deterrence/education  Current trend is to use John Doe suits to ‘monetize infringement’ Methods  Threat of public exposure = shakedown 11

12. = Troll? A troll is a systematic opportunist Any definition of trolling that does not capture extortion-driven pornography related John Doe litigation is not a very good definition Opportunism is not confined to a particular economic structure such as “non-practicing entity” 12

13. Even if pornography is the problem, reform of statutory damages is the solution. 13

14. Statutory damages 14

15. Statutory damages The corrosive effect of statutory damages  Statutory damages range from $750 to $150,000  No requirement of actual damage  Original intent was to deter commercial infringers  Now seen as a pot of gold at the end of the copyright rainbow Court house > market place  For some plaintiffs statutory damages offer rewards significantly greater than they could ever hope to obtain from voluntary market transactions  The lure of easy money seems to attract lawyers with questionable ethics – See paper for citations to various sanctions. 15

16. Joinder The significance of procedural rules relating to joinder  Massive John Doe suits reduce plaintiff costs  A pretext for discovery  Provide a window of opportunity for court supervision – … but note that joinder is becoming more difficult and less significant 16

17. Individual Doe Defendants in John Doe Copyright Cases 2001 – 2014 17

18. Not so many mega suits 18

19. 19 48.75% 41.27% 40.77%

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21. ¡Muchas Gracias! 21