It is now April 23rd, 2017, almost eight (8) years since I wrote my last post on the CashmanIP blog and created the TorrentLawyer resource blog. Coincidentally, the title of that last post was “Powerful Lesson on Settling a Patent Litigation Case & Avoiding Greed,” which has irony if you knew the number of cases that end up settling with these newer copyright infringement cases.
[The reason for this is that while the initial copyright infringement lawsuits cast wide nets over thousands of accused internet users, today’s copyright infringement “John Doe subscriber assigned IP address” lawsuits sue one accused internet user having one IP address for multiple titles they allegedly downloaded illegally without a license.]
These past eight years, our Cashman Law Firm, PLLC has written over 200+ articles on the topic of copyright trolling, and how to expose and fight against their scheme. We have represented literally hundreds (the number has likely reached into the thousands at this point) of defendants accused of copyright infringement in federal courts across the U.S.
To expose the tactics of the copyright holders filing copyright infringement lawsuits against those they accuse of downloading their copyrighted content, I created the TorrentLawyer blog (https://www.torrentlawyer.com).
TorrentLawyer: Defending ‘pirates’ against ‘pirates’.
Our goal was to defend ‘pirates’ against, well, ‘pirates.’ There is no justification to rationalize the ‘theft’ of copyrighted materials (unless you believe the growing meme that ‘copying is not stealing‘).
However, with the copyright trolling problem, malicious companies who create questionable content anticipate (and sometimes encourage) the illegal dissemination of that content via the peer-to-peer / bittorrent networks.
These so-called ‘copyright trolls’ hire companies to track the bittorrent networks and lawyers to file copyright infringement lawsuits scaring accused downloaders with $150,000 statutory damages.
Why these copyright trolls sue accused internet users.
Their intention is not to fight the case on the merits (and filing lawsuits without the intention of actually pursuing those lawsuits in court, “on the merits,” is a misuse of the court’s resources). Rather, the intention of these copyright holders / copyright trolls is to extort or solicit a multi-thousand dollar settlement from each defendant who clicked on a bittorrent link.
“Good” Copyright Infringement Lawsuits:
I would understand a lawsuit where a copyright holder sued an accused defendant who [probably cluelessly and ignorantly] downloaded a copyrighted movie title without knowing anything about copyrights… if that individual turned around and uploaded it online and made advertising revenue from the publication of that pirated video.
That advertising revenue in my opinion would belong to the copyright holder, not the indvidual who duplicated and uploaded the video without a license.
AVAILABLE WEBSITE CONTAINING PAID CONTENT
Similarly, I would understand an support a lawsuit where the copyright holder sued an accused internet user who accessed copyrighted content without a license, where
1) the copyright holder provided a website and a paid membership that the accused downloader could have used to access that copyrighted material,
2) the accused defendant knew about the availability of that website where he could have paid for the copyrighted content, and
3) instead of acquiring that copyrighted content through legal means, he chose to pirate the video and acquire a copy of it without paying for it.
In a situation like this, I would support a lawsuit where the so-called ‘pirate’ would be asked to purchase a membership to the copyright holder’s paid website.
MULTIPLIERS OF “ACTUAL” DAMAGES TO COPYRIGHT HOLDER
In addition, I would even support forcing the accused downloader to pay the attorney fees of the copyright holder who had to pay to enforce his copyright rights. I would also add a multiplier, for example, asking the accused downloader to pay 4x or 5x the cost of acquiring that video legally.
However, my support for these lawsuits ENDS where the downloader has downloaded 100 of those videos, all of those videos are available on the same website, and the copyright holder asks for a settlement of each title rather than the loss of his monthly or annual membership payment.
I would not support an attempt by the copyright holder to multiple his penalties by 100 because he downloaded 100 titles from the same website. And, I certainly wouldn’t support asking the accused download to pay hundreds of dollars per title where all of those videos would be available for one monthly or annual subscription fee.
So I guess this is why I disagree with the slew of copyright infringement lawsuits which have been showing up over the years. I simply feel that what the copyrght holders are asking for is greedy.
To make things worse, copyright law gives the copyright holder the ability to sue for $150,000 per instance of infringement. That is insane! I would rather the copyright holders adopt a forced licensing revenue model as the radio companies and music industry has done to reward their content providers. You can read more about that approach in my policy letter to lawmakers and judges here.
OTHER COPYRIGHT INFRINGEMENT LAWSUITS THAT I SUPPORT (IN THEORY)
Contrast the above lawsuits to a Siemens Industry Software Inc. software piracy lawsuit, or more recently, an Ansys, Inc. v. Does software piracy lawsuit (I haven’t written these up yet). The goal of these software piracy lawsuits is to legitimize the use of their software and to sell licenses (albeit VERY EXPENSIVE licenses) to engineers who use their software for profit without compensating the copyright holders for the illegal use of their software.
This is why I am so much more friendly to the idea of these lawsuits over the copyright troll movie download cases.
MY ISSUE WITH COPYRIGHT TROLLS
Copyright Trolls create and exploit an imbalance of access to legal resources.
In sum, the reason I call the plaintiff attorneys / copyright trolls ‘pirates’ is because their extortion scheme takes advantage of an imbalance in the access to information (and access to the federal courts).
These copyright troll ‘pirates’ file hundreds (and sometimes thousands) of “John Doe” lawsuits in multiple federal courts, using the same boilerplate filings for each and every case.
An accused defendant, however, has no knowledge or ability to fight or defend in a federal court, so they are forced to hire an attorney (someone like me) to defend them both in-and-out of the court.
The costs are so much greater for the accused ‘John Doe’ defendant (many of whom are falsely accused and did not do the download, or cannot afford to pay an attorney to defend them), and because of this, they are taken advantage of by the copyright holders / copyright trolls who filed the lawsuits.
This is why I call the copyright trolls ‘pirates’ as well.
I called that blog the “TorrentLawyer” blog, and it can be found on https://www.torrentlawyer.com.
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