Prenda May Be Dead, But Copyright Trolling Still Going Strong

from the no-signs-of-slowing-down dept

With one of Prenda Law's key players, John Steele, pleading guilty and likely spending many, many years in prison, you might think that it would mean an end to egregious copyright trolling. However, Matthew Sag, who's spent years tracking the number of copyright trolling lawsuits, lets us know that trolling is still going strong, and it's only slightly modified since the days of Prenda:

...in the post-Prenda era, lawsuits filed against John Doe defendant made up more than 52% of all copyright cases in in the United States in 2014 and 58% in 2015. The number of suits dropped slightly after Malibu Media lost a case on summary judgment in January 2016, but the rate of filing is increasing again. Even so, between 2014 and 2016 copyright trolling accounted for 49.8% of the federal copyright docket.

Our analysis of the federal court filing records indicates that in 2016, the average number of defendants in each of the John Doe cases was 4.7 on a conservative estimate . In other words, although there were 1,362 John Doe copyright cases filed last year, 6,483 individual defendants were targeted. Without doubt, some of those people were illegally downloading movies, but a great many were not.

As Sag notes, copyright trolls don't seem to care much about being legally correct. They just need to be convincing enough to get people to pay up to avoid the lawsuit:

The new breed of plaintiffs who filled Prenda’s shoes are different to Prenda, but not different enough. The plaintiffs’ claims of infringement still rely on poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. Plaintiffs have realized that there is no need to invest in a case that could actually be proven in court, or in forensic systems that reliably identify infringement without a large ratio of false positives. Their lawsuits are filed primarily to generate a list of targets for collection; and are unlikely-in our view-to withstand the scrutiny of contested litigation.

The human cost of copyright trolling is significant. It is true that sometimes the plaintiffs get lucky and target an actual infringer who is motivated to settle. But even when the infringement has not occurred or where the infringer has been misidentified, some combination of the threat of statutory damages of up to $150,000 for a single download, tough talk, and technological doublespeak are usually enough to intimidate even innocent defendants into settling.

Copyright -- with the help of insane $150,000 statutory damages -- is still being used as a shakedown weapon, scaring people into paying up, not because of actual infringement, but because copyright trolls have learned how to use the law and the court system as a business model very similar to the one used by organized crime in certain neighbors: pay up or someone's going to get hurt. The unfortunate "new" part of this is that the "weapon" here isn't a baseball bat, but federal copyright law and the judicial system.

Sag now has a longer paper, along with Jake Haskell, looking at "the dark arts of copyright trolling" and how to defend against them. The paper has much more details than Sag's blog post linked above, along with pretty charts like the following one:

Of course, it also notes that this is a niche industry, with 62% of the trolling cases coming from just five companies. Malibu Media, unsurprisingly leads the way (by a lot), as it has done for several years. While Malibu Media has run into some problems in the courts, I'm still at least somewhat surprised that it hasn't received Prenda-level treatment by more judges. Perhaps that will change soon.

Either way, it's fairly clear that copyright remains seriously flawed if it's open to being abused so frequently, even if by a very small number of players.


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  • icon
    That Anonymous Coward (profile), 15 Mar 2017 @ 12:06pm

    Oh those carefree early days when everyone thought I had to be wrong and lawyers would never do that.

    Now it appears that I'm a Wizard, whos been battling the dark arts for a very long time.

    The scam remains the same and the largest thing propping it up is the Judiciary refuses to consider that its cogs would do bad things.
    Cops would never perjure themselves on the stand.
    Prosecutors would never hide evidence the defendant was innocent.
    They would never entice those with learning disabilities into 'stings' to get headlines.

    Copyright is a mess, and we will never agree anytime soon.
    Perhaps we could agree to 1 modest proposal - Make the statutory damages for "Non-commerical" infringement realistic. They call it a lost sale, lets cap it at 2x retail, 3x retail, 4x, 5x... but removing the $150K baseball bat they keep getting to swing well after their settlements sailed past this number.

    As to the other trolls, I'm still here.
    I put on my robe and wizard hat...aite?

    reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 15 Mar 2017 @ 12:38pm

      Re:

      Go full Gandolf on em. :)

      reply to this | link to this | view in chronology ]

    • identicon
      Copyright Abolitionist, 16 Mar 2017 @ 5:46am

      Re:

      Copyright is a mess, and we will never agree anytime soon.

      Hardly ever does everyone agree on change and those calling for change are usually a very small minority at first. When slavery was abolished there were plenty who opposed that change as well.

      Abolish copyright.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 16 Mar 2017 @ 12:36pm

        Re: Re:

        Except I'm willing to forego the civil war it would cause.
        In a perfect world we could just ram through fixing it, but thats not going to happen.

        Finding horrible dark forgotten corners & getting public support for fixing that is much easier. There are tons of photogenic & sympathetic victims to be trotted out to tell their stories about how even when they couldn't find any evidence after turning their lives upsidedown they claimed lack of evidence was proof of wrong doing.

        I'd love to discuss reform of copyright, because I think it is needed in some form, just not this form.

        Its nice to see a paper that can be put before a Judge to lay some groundwork to understanding. The only time things I said ended up in court was when they tried to cast me as evil.

        reply to this | link to this | view in chronology ]

  • icon
    Eldakka (profile), 15 Mar 2017 @ 4:56pm

    Either way, it's fairly clear that copyright remains seriously flawed if it's open to being abused so frequently, even if by a very small number of players.

    I suspect some would argue that it's "working as intended" :(

    reply to this | link to this | view in chronology ]

  • identicon
    Raul, 15 Mar 2017 @ 6:48pm

    The paper is several things: an empirical/analytical study, an urging of the federal judiciary to take a harder look at these lawsuits and, above, all a defense manifesto. The paper carefully examines copyright troll lawsuits and finds them lacking from an evidentiary and potentially fraudulent perspective. The footnotes, alone, are eye widening. Well worth a careful read.

    reply to this | link to this | view in chronology ]

  • icon
    mhajicek (profile), 15 Mar 2017 @ 10:02pm

    How about a form retaliation, where the victim threatens the troll with an appropriate counter suit?

    reply to this | link to this | view in chronology ]

  • icon
    OA (profile), 15 Mar 2017 @ 10:07pm

    Fraud based economy.

    reply to this | link to this | view in chronology ]


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