Earlier this year, this blog introduced you to “copyright trolling,” a new business model for intellectual property lawyers. The copyright trolling concept is simple: search the Internet for instances where another website has used portions or all of your original work, sue the website operator for infringement demanding statutory damages completely out-of-line with any actual damages, rely on the website operator’s evaluation of the cost of settlement versus the cost of a protracted legal battle, and collect a settlement of a few thousand dollars for all your hard work. Oh yes, and to be successful as a copyright troll, the IP attorney must completely ignore other sections of the copyright statute pertaining to fair use—the legal concept that not all copying of copyrighted material constitutes infringement. Rinse and repeat.
Righthaven, a Las Vegas-based business with apparently only one client, is the law firm currently at the epicenter of this copyright trolling development. On behalf of Stephens Media, a media company that includes the Las Vegas Review-Journal, among other newspapers, Righthaven has sued upwards of 145 web site operators for copyright infringement, and has reportedly settled 20% of the suits so far. The Internet was awash in commentary about copyright trolling, with early speculation that the Electronic Freedom Foundation (“EFF”) would likely be interested in defending the rights of website operators. Though it took a few months, the EFF apparently has found an appropriate test case. On September 27, EFF filed an answer and counterclaim on behalf of the website Democratic Underground.
In the suit, the EFF argues that Righthaven is abusing copyright law to extract windfall settlements from website operators by filing nuisance lawsuits. In keeping with their defending-the-little-guy posture, EFF is seeking no damages in the case—they only want the court to rule that Democratic Underground has not infringed the copyrights of Stephens Media. Through this, the EFF hopes to set a precedent that would be invaluable to all bloggers and online media players, while destroying the copyright troll business model. Whether the court will agree with the EFF is hard to guess—but a decision in their favor could create the first opinion legally validating the unwritten rules of online blog behavior. Stay tuned.
About the author
Andrew Martin:
As an associate attorney with extensive prior experience advising information technology start-ups, Andrew’s practice focuses on finding solutions for his clients’ intellectual property issues. Due to his extensive experience in the software and technology industries, Andrew understands both the practical and legal issues involved in IP licensing agreements and disputes. In addition to licensing, Andrew helps his clients find new ways to use existing technologies to assist his clients in areas such as data privacy compliance. Andrew uses his diverse background which includes founding a record label and working for a world-wide concert promoter when counseling the firm’s entertainment clients.
Get in touch: amartin@scottandscottllp.com | 800.596.6176