• Trolls succeed because their lawyers only get paid when the patent holder wins. Under the traditional billing model, defense lawyers get paid no matter what. What about tying defense payments to the successful and low-cost resolution of cases? Success payments, outcome-based billing and other forms of “contingency defense” give the main source of transaction costs – lawyers – incentives to reduce them.
• Trolls also succeed by capturing economies of scale. Purchase, assert, repeat. In contrast, few lawyers specialize exclusively in defensive tactics like invalidation, reexamination and joint defense. Expertise that is developed within a firm is guarded as proprietary. But defensive tasks like prior art searching could become cheaper and more reliable if done on a larger scale. Firms with expertise dealing with certain patent assertion entities or certain venues better understand what is needed to efficiently dispose of a suit.
• When trolls show up now, companies fold individually because its easier to do than fight collectively. But the gains from collaboration can be substantial, and would be even more so if approaches were standardized and made more efficient.
• The greatest advantage trolls have is their ability to focus exclusively on assertion. A lack of customers, partners and operations endow trolls with a freedom to litigate not enjoyed by practicing companies. The makers and users of technology should consider doing the same and investing in their own non-practicing entity – a nonprofit. While on a day-to-day level, companies need to resolve disputes and move on, a more long-term and sustained focus could yield longer-term payoffs. Trolling is a big enough issue that diverse stakeholders including small and large companies, across sectors, should be able to find common ground.

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright.

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.