Of pornography pirates and privateers: applying FDCPA principles to copyright trolling litigation.

• Author: Alderfer, Henry D.
• Position: Fair Debt Collection Practices Act

TABLE OF CONTENTS INTRODUCTION I. PIRACY IN THE DIGITAL AGE A. The Napster and RIAA Litigation B. Copyright Trolling in the Pornography Industry II. THE TWISTED RELATIONSHIP BETWEEN PORNOGRAPHY, OBSCENITY, AND COPYRIGHT A. Copyright at a Glance B. Obscenity: A Bar to Copyright Protection? III. COPYRIGHT TROLLING AS A BUSINESS STRATEGY A. The Copyright Trolling Suit Procedure 1. The Initial Steps 2. Finding Anonymous Defendants via BitTorrent 3. Connecting the Dots with Subpoenas 4. Demand Letter Deluge IV. A FRESH TAKE ON COPYRIGHT TROLLING A. Purpose and Function of the FDCPA B. Unintended Litigation Under the FDCPA C. Practicality of Amending the Copyright Act D. CACILA: A Model Anti-Trolling Statute E. Counterarguments Addressed CONCLUSION INTRODUCTION

Plaintiffs have outmaneuvered the legal system. They've discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle--for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry. (1) So began U.S. District Judge Otis D. Wright's scornful order issuing sanctions against attorney John Steele and his cohorts at Prenda Law. Under Steele's direction, a group of attorneys crafted a "cloak of shell companies and fraud" (2) to perpetrate a sprawling copyright infringement litigation scheme. (3) Judge Wright's order, replete with timely Star Trek references, (4) encapsulates the vexing legal, moral, and ethical problems associated with a legal phenomenon known as "copyright trolling." (5) Copyright holders and their attorneys who manipulate copyright law and the federal judiciary with the primary purpose of creating a revenue stream are said to be "copyright trolls." (6) According to the Norwegian fairy tale "Three Billy Goats Gruff," a troll was a creature that hid under a bridge and coerced payment from unsuspecting travelers. (7) Copyright trolls are not much different, except they usually come armed with a juris doctorate. (8)

Although not all copyright enforcement attorneys are as unscrupulous as John Steele and his companions, (9) copyright trolling--particularly in the context of pornography--is developing into a cottage industry. (10) A defendant in one of these cases is branded as a "pornography pirate." (11) He can either pay an expensive settlement to make the charges go away, or roll the dice and defend himself in federal court. (12) The attorneys who "plunder the citizenry" (13) by deriding their prey as "porn pirates" are, for all intents and purposes, no better than privateers of copyrighted pornography. (14)

Many law review articles and notes have been written on copyright trolling. (15) Although most authors suggest altering joinder rules or eliminating copyright protection for pornography altogether, this Note argues that many of the problems associated with copyright trolling are analogous to abusive debt collection practices. By adapting the legislation enacted to address abusive debt collection, the Fair Debt Collection Practices Act (FDCPA), Congress can stop copyright trolling by forcing copyright trolls to abandon the demand-letter-factory business model, or risk facing defensive litigation brought by the very defendants they are targeting.

This Note takes the position that the actions of these copyright trolls are not only morally and ethically objectionable, but also pose a significant burden to the federal judicial system. Part I of this Note will provide an overview of digital piracy and copyright trolling. Part II of this Note will review the history and policy underlying copyright law and obscenity, and examine how different courts have decided whether obscene material is entitled to copyright protection. Part III of this Note will examine copyright trolling litigation as a business strategy, particularly for producers of pornography. Part IV of this Note will examine previously proposed solutions to copyright trolling litigation in the legal literature. Part IV will also propose that principles from the FDCPA can be readily applied to the Copyright Act to remedy many current problems associated with copyright trolling litigation by setting forth model statutory language. Part IV concludes that amending the Copyright Act to create legislation that provides (1) a defensive cause of action for copyright infringement defendants and (2) administrative enforcement will curtail copyright trolling suits while leaving legitimate copyright infringement actions intact.

1. PIRACY IN THE DIGITAL AGE

   Over the last thirty years, the Internet has fundamentally transformed the landscape of copyright law. (16) Perhaps most notably, widespread access to the World Wide Web has led to an age of mass copyright infringement. (17) Any ordinary American with a scintilla of Internet savvy can access and download hundreds of thousands of copyrighted digital works in a matter of seconds. (18) Although downloading digital material is not necessarily illegal per se, (19) more often than not Internet users engage in digital piracy by acquiring copyrighted material without the permission of the copyright owner. (20) Whether digital piracy is actually causing significant harm to the entertainment industry is a matter of debate. (21) Regardless, the entertainment industry evolved to cope with pervasive digital piracy. (22) Some players in the entertainment industry have adopted the classic "if you can't beat them, join them" approach. (23) For example, English rock band Radiohead released their popular 2007 album, In Rainbows, through the band's own website as a digital download for which customers could make whatever payment that they deemed appropriate, including paying nothing at all. (24) However, many others in the entertainment industry have resorted to litigation. (25) Although there are a few prominent examples of sizeable judgments against defendants in copyright infringement cases, (26) using mass litigation to fight digital piracy has proven to be an imperfect strategy. (27)

   1. The Napster and RIAA Litigation

      In June 1999, Shawn Fanning launched the first mainstream peer-to-peer (P2P) music file-sharing service: Napster. (28) Within nine months, over 20 million people downloaded Fanning's program. (29) Although Napster revolutionized music distribution, (30) it did so at the expense of artists and record labels whose copyrighted music was impermissibly shared via Napster. (31) A few months later, an assemblage of record labels sued Napster for contributory and vicarious copyright infringement. (32) Metallica, a heavy-metal rock band, filed suit shortly thereafter for similar claims against Napster. (33) The ensuing litigation ultimately resulted in Napster's bankruptcy. (34)

      In the years following Napster's demise, the Recording Industry Association of America (RIAA), a trade group for the music industry, (35) launched a series of lawsuits with the intent to curb digital piracy. (36) For years, the RIAA made headlines litigating copyright infringement suits against individuals caught illegally downloading copyrighted music. (37) In the end, the RIAA gave up their crusade against copyright infringement. (38)

      The pornography industry is much like the music industry in that both sell copyrighted material, much of which is distributed electronically. (39) And like the music industry before them, some players in the adult entertainment industry are readily filing suits against citizens they believe to have infringed upon their copyrighted pornographic works. (40) Their tactics, however, are very different.

   2. Copyright Trolling in the Pornography Industry

      As of March 2012, copyright trolls had targeted over 200,000 anonymous defendants for illegally downloading copyrighted pornography. (41) These copyright trolling suits can be complex, with one notable suit having nearly 6,000 people joined as codefendants. (42) However, the copyright holders bringing these suits rarely litigate the matter beyond the initial pleading stages of litigation. (43) Rather, these plaintiffs seek, and are usually granted, early discovery requests providing access to the defendants' identities via their Internet service providers (ISPs). (44)

      The problem with copyright trolling is that it is not illegal per se, yet it imposes significant costs not only on defendants, but also on the federal judiciary, which is inundated with these claims. As one judge noted, "Courts have been troubled by what amounts to be a new business model employed by production companies 'misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlement, rather than ultimately serve process and litigate the claims.'" (45)

      The strategy behind this "demand-letter factory" business model is simple: it is easier and faster to collect settlement payments from a large pool of defendants, (46) as opposed to targeting a few defendants with protracted RIAA-style litigation. (47) This "demand-letter factory" strategy has proven lucrative for both pornography producers and their attorneys. (48) These copyright trolls have disrupted the "under-enforcement equilibrium" that has historically existed in copyright law. (49) Furthermore, because copyright trolls have not technically broken any laws, there is no "coherent basis on which to curb their activities." (50) To find meaningful success will require solving a jigsaw puzzle of interweaving and conflicting legal doctrines.

2. THE TWISTED RELATIONSHIP BETWEEN PORNOGRAPHY, OBSCENITY, AND COPYRIGHT

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