from the the-receding-wave dept
There is a beautiful passage in Hunter S. Thompson’s otherwise largely overrated book, Fear and Loathing In Las Vegas, that always stuck out to me. Speaking on the anti-war and free-love movements of the sixties, he writes:
There was no point in fighting—on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave. . . .So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high-water mark—that place where the wave finally broke and rolled back.
This idea of a positive movement cresting like a wave before rolling back fits other narratives as well, and not all of them positive. Whatever despair might be felt for Thompson’s cause receding back into the ocean might transform into joy as we might be watching something similar happen to the scourge that are copyright trolls. They too crashed onto the scene a decade or so ago like a wave, rolling over the legal systems of many nations and drowning them and the public with lawsuits, legal notices, and threats. But perhaps that wave has also crested, given the recent actions taken by ISPs to protect their customers, by courts that have begun casting narrow glances in the trolls’ direction, and by the fall of several of the more notable copyright trolls entirely.
But the real sign that things on the matter have taken a turn has always been when the copyright trolls begin facing a price for their actions. That too seems to be beginning, at least in the case of one falsely accused “pirate” who has been awarded $17k to cover his legal ordeal. The lawsuit had been over the downloading of an Adam Sandler movie at a foster care home.
The defendant in question, Thomas Gonzales, operates an adult foster care home where several people had access to the Internet. The filmmakers were aware of this and during a hearing their counsel admitted that any guest could have downloaded the film. Still, the filmmakers decided to move their case ahead, and for this decision they may now have to pay. After the case was dismissed, the wrongfully accused ‘pirate’ asked to be compensated for the fees he incurred during his defense.
In a findings and recommendations filing published last Friday (pdf), Magistrate Judge Stacie Beckerman concludes that the filmmakers went too far.
Within the opinion itself, the court noted that it agreed with Gonzales’ claim that the whole point of these legal threats by the copyright troll was to extract large settlements before the trial had actually begun, which meant that the troll would levy the harshest accusations in order to make its settlement offers appear reasonable by comparison. This, despite the facts that would make the accusations clearly silly.
The Court shares Gonzales’ concern that Plaintiff is motivated, at least in large part, by extracting large settlements from individual consumers prior to any meaningful litigation. On balance, the Court has concerns about the motivation behind Plaintiff’s overaggressive litigation of this case and other cases, and that factor weighs in favor of fee shifting.
Compensating Gonzales will encourage future defendants with valid defenses to litigate those defenses, even if the litigation is expensive. Conversely, and perhaps more importantly, awarding fees to Gonzales should deter Plaintiff in the future from continuing its overaggressive pursuit of alleged infringers without a reasonable factual basis.
In those last two lines, you can clearly see a court that is entirely fed up with having its docket filled with actions brought by copyright trolls. If other courts take up the cause, the possibility of financial penalty to bringing spurious copyright suits might finally roll back the wave, as it were. That would be a huge win for the practice of justice on matters of copyright.