2015] COPYRIGHT TROLLING, AN EMPIRICAL STUDY 1107
Patent trolls are in the news,1 and they have been high on the agenda of
intellectual property policy makers and academics for over a decade now.2
Those targeted by patent aggregators and patent holding companies
accounted for nearly 38% of all patent defendants.3 Depending on your
definition of a patent troll, the incidence of patent troll litigation may be
increasing.4 The President has condemned patent trolls,5 and new legislation
targets patent trolls.6 While patent trolls hog the limelight, a particular type
of copyright troll has been taking over the dockets of several United States
district courts, and yet copyright trolls have received comparatively little
attention in policy and academic circles. District court judges have
commented on how copyright litigation is changing,7 but this is the first
systematic in-depth analysis of the data.8
1. See, e.g., Edgar Walters, Tech Companies Fight Back Against Patent Lawsui ts, N.Y. TIMES
(Jan. 23, 2014), http://www.nytimes.com/2014/01/24/us/tech-companies-fight-back-against-
2. See, e.g., FED. TRADE COMM’N, THE EVOLVI NG IP MARKETPLACE: ALIGNING PATENT
NOTICE AND REMEDIES WITH COMPETITION (2011), available at http://www.ftc.gov/sites/
competition-report-federal-trade/110307patentreport.pdf; FED. TRADE COMM’N, TO PROMOTE
INNOVATION: THE PROPER BALANCE OF COMPETITION AND PATENT LAW AND POLICY (2003),
available at http://www.ftc.gov/os/2003/10/innovationrpt.pdf. See generally Mark A. Lem ley & A .
Douglas Melamed, Missing the Forest for the Trolls, 113 COLUM. L. REV. 2117 (2013).
3. Christopher A. Cotropia et al., Unpacking Patent Assertion Entities (PAEs), 99 MINN. L.
REV. 649, 678 fig. 3 (2014) (using statistics from 2010 and 2012).
4. Colleen Chien reports that patent trolls filed 29% of patent lawsuits in 2010 and 62%
in 2012. Colleen Chien, Patent Trolls by the Numbers, PATENTLYO (Mar. 14, 2013), http://www.
patentlyo.com/patent/2013/03/chien-patent-trolls.html. However, new research using more
transparent data finds that, based on the total number of patent litigants, there is almost no
difference between 2010 and 2012. See Cotropia et al., supra note 3.
5. President Obama recently stated “[patent trolls] don’t actually produce anything
themselves. They’re just trying to essential ly leverage and hijack somebody else’s idea and see if they
can extort some money out of them.” Gene Sperling, Taking on Patent Trolls to Protect American
Innovation, WHITE HOUSE BLOG (June 4, 2013, 1:55 PM), http://www.whitehouse.gov/blog/2013/
06/04/taking-patent-trolls-protect-american-innovation; see also EXEC. OFFICE OF THE PRESIDENT,
PATENT ASSERTION AND U.S. INNOVATION 2 (2013), available at http://www.whitehouse.gov/sites/
6. Leahy-Smith America Invents Act (AIA), Pub. L. No. 112-29, 125 Stat. 284 (2011)
(codified in scattered sections of 35 U.S.C.). The AIA included a revision to the joinder rules for
patent litigation, which required lawsuits filed against multiple unrelated parties to be filed
separately, a provision squarely aimed at patent trolls. See 35 U.S.C. § 299 (2012).
7. See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 82
(E.D.N.Y. 2012) (“These actions are part of a nationwide blizzard of civil actions brought by
purveyors of pornographic films alleging copyright infringement by individuals utilizing a
computer protocol known as BitTorrent.”).
8. The Copyright Office has never addressed the issue of copyright trolls, nor does the
Copyright Office’s recent report on Copyright Small Claims even mention them. See generally
MARIA A. PALLANTE, U.S. COPYRIGHT OFFICE, COPYRIGHT SMALL CLAIMS (2013), available at
http://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf. For non-empirical