Copyright Trolling, An Empirical Study

• Author: Matthew Sag
• Position: Law Professor at Loyola University Chicago School of Law and the Associate Director of the Institute for Consumer Antitrust Studies
• Pages: 1105-1147

1105

Copyright Trolling, An Empirical Study

Matthew Sag 

ABSTRACT: This detailed empirical and doctrinal study of copyright trolling

presents new data showing the astonishing rate of growth of multi-defendant

John Doe litigation in United States district courts over the past decade. It

also presents new evidence of the association between this form of litigation

and allegations of infringement concerning pornographic films. Multi-

defendant John Doe lawsuits have become the most common form of copyright

litigation in several U.S. districts, and in districts such as the Northern

District of Illinois, copyright litigation involving pornography accounts for

more than half of new cases.

This Article highlights a fundamental oversight in the literature on copyright

trolls. Paralleling discussions in patent law, scholars addressing the troll

issue in copyright have applied status-based definitions to determine who is,

and is not, a troll. This Article argues that the definition should be conduct-

based. Multi-defendant John Doe litigation should be considered copyright

trolling whenever it is motivated by a desire to turn litigation into an

independent revenue stream. Such litigation, when initiated with the aim of

turning a profit in the courthouse as opposed to seeking compensation or

deterring illegal activity, reflects a kind of systematic opportunism that fits

squarely within the concept of litigation trolling. This Article shows that

existing status-based definitions of copyright trolls do not account for what is

now arguably the most prevalent form of trolling.

In addition to these empirical and theoretical contributions, this Article shows

how statutory damages and permissive joinder make multi-defendant John

Doe litigation possible and why allegations of infringement concerning

pornographic films are particularly well-suited to this model.

 Professor, Loyola University Chicago School of Law and Associate Director for

Intellectual Property of the Institute for Consumer Antitrust Studies. Thanks to Tonja Jacobi,

Glynn Lunney, Jonathan Phillips, David Schwartz, and Spencer Waller, and the participants at

the Internet Law Works in Progress Conference, Law and Society, and th e Intellectual Property

Scholars Conference for their comments and suggestions. Replication code in Stata12 available

upon request. Raw data available at http://matthewsag.com/?page_id=19.

1106 IOWA LAW REVIEW [Vol. 100:1105

I. INTRODUCTION ........................................................................... 1107

II. THE RISE OF THE COPYRIGHT TROLL ......................................... 1110

A. COPYRIGHT TROLLS AND COPYRIGHT TROLLING .................... 1111

1. Righthaven ................................................................... 1111

2. Beyond Righthaven ..................................................... 1113

B. WHEN DO MULTI-DEFENDANT JOHN DOE LAWSUITS AMOUNT TO

COPYRIGHT TROLLING? ........................................................ 1114

C. THE ECONOMICS OF MULTI-DEFENDANT JOHN DOE

LAWSUITS ............................................................................. 1115

D. THE RISE OF MULTI-DEFENDANT JOHN DOE LAWSUITS ............ 1116

III. STATUTORY DAMAGES, JOINDER, & PORNOGRAPHY .................... 1119

A. STATUTORY DAMAGES ........................................................... 1119

B. JOINDER ................................................................................ 1121

C. THE COPYRIGHT TROLLING-PORNOGRAPHY NEXUS ................ 1127

IV. REFORMS ..................................................................................... 1133

A. THE NORMATIVE FOUNDATIONS FOR REFORM ......................... 1133

B. REFORM PROPOSALS .............................................................. 1135

1. Reasonable Statutory Damages .................................. 1135

2. Denying Joinder, Severing Cases ............................... 1141

3. Conditional Joinder and Other Safeguards .............. 1144

V. CONCLUSION .............................................................................. 1145

APPENDIX A: COPYRIGHT LAWSUITS FILED IN U.S. FEDERAL COURTS:

2001–2014 ................................................................................. 1146

APPENDIX B: COPYRIGHT SUITS FILED IN U.S. DISTRICT COURTS:

2001 TO JUNE 30, 2014 .............................................................. 1146

2015] COPYRIGHT TROLLING, AN EMPIRICAL STUDY 1107

I. INTRODUCTION

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-

patent-lawsuits.html.

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/

default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-

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/

default/files/docs/patent_report.pdf.

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