Copyright Trolling
An Empirical Study of “John Doe” Litigation
Prof. Matthew Sag,
Loyola University Chicago School of Law
July 10, 2014
Background I
Copyright is a private right, not typically enforced by the
State. U.S. Copyright allows for statutory damages
without evidence of copyright holder’s loss or infringer’s
unjust enrichment.
BitTorrent is a very efficient P2P file sharing system
capable of lawful and unlawful uses.
A BitTorrent swarm usually has 1000s of participants.
Technologically sophisticated copyright owners can
identify participants by IP address.
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Background II
John Doe Lawsuits

Plaintiff files suit in the form “Digital Sin v. Does 1 through 5000”
– One filing fee ($350)
– Cases are not intended to go to trial


Plaintiff files a motion for early discovery to obtain names +
addresses from ISPs
Plaintiff demands settlement (threatens exposure, statutory
damages)
– Does not usually bother to serve defendants so named
– $2,000 to $4,000 settlements are common
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How Common Are John Doe
Copyright Suits?
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Copyright Trolling
DATA
41,769 cases



Filed between January 01, 2001 and March 31, 2014
Nature of Suit = Copyright (820)
All U.S. District Courts (does not include appeal dockets)
John Doe

Search for “doe” “does” + manual review
Number of Does

From case title, e.g. “Digital Sin, Inc v. Does 1-208” + hand correction
on an ad hoc basis.
Pornography


Plaintiff is a known pornographer, Google, IMDB
All/nothing assumption
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Copyright Trolling
Data Sources:
PACER (maintained by the Administrative
Office of the U.S. Courts)
Bloomberglaw (dockets)
IMDB
Google
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Implications
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Implications
1. Are these plaintiffs “trolls”?
2. The synergy of statutory damages + joinder + leverage
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= Troll?
Copyright trolls, patent trolls


Patent literature focuses on entity status, e.g. “non-practicing
entity” synonymous with troll in the eyes of many.
Others have applied this same understanding to copyright, e.g.
Righthaven (NPE, Sham Owner) suits against blogs etc.
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= Troll?
Not illegal, many cases have merit



Troll should mean something other than meritless in the R.11
sense
Meritless in terms of the objectives of the system
Litigation not driven by the merits (the threat of statutory
damages means merits don’t matter that much)
Motive


RIAA used John Doe suits as deterrence/education
Current trend is to use John Doe suits to ‘monetize
infringement’
Methods

Threat of public exposure = shakedown
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= Troll?
A troll is a systematic opportunist
Any definition of trolling that does not
capture extortion-driven pornography related
John Doe litigation is not a very good
definition
Opportunism is not confined to a particular
economic structure such as “non-practicing
entity”
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Even if pornography is the problem, reform of statutory
damages is the solution.
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Statutory damages
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Statutory damages
The corrosive effect of statutory damages




Statutory damages range from $750 to $150,000
No requirement of actual damage
Original intent was to deter commercial infringers
Now seen as a pot of gold at the end of the copyright rainbow
Court house > market place


For some plaintiffs statutory damages offer rewards significantly
greater than they could ever hope to obtain from voluntary
market transactions
The lure of easy money seems to attract lawyers with
questionable ethics
– See paper for citations to various sanctions.
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Joinder
The significance of procedural rules relating to joinder



Massive John Doe suits reduce plaintiff costs
A pretext for discovery
Provide a window of opportunity for court supervision
– … but note that joinder is becoming more difficult and less
significant
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Individual Doe Defendants in John Doe Copyright Cases 2001 – 2014
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Not so many mega suits
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APPENDIX B – COPYRIGHT SUITS FILED IN U.S. DISTRICT COURTS – 2001 TO JUNE 30 2014
The table below is current to June 30, 2014. The top section of the table shows how many cases were filed under the 820 code
for Copyright in U.S. Federal District Courts in the years 2003 to 2014. The bottom section of the table translates the same
information into percentages. The “Copyright - All” category includes all copyright cases. “Copyright –John Doe” includes all
copyright cases where the defendant was a John Doe, without differentiating as to the underlying subject matter of the compliant.
“Copyright - John Doe (Porn)” is a subset of the previous category and includes all cases identified as relating to pornography. The
final category, “Malibu Media v. Doe(s)” includes every case filed by Malibu Media against one or more John Does.
Raw Numbers
Year
Copyright - All
Copyright - John
Doe
Copyright - John
Doe (Porn)
Malibu Media v.
Doe(s)
2003
2571
2004
3674
2005
5336
2006
4674
2007
3887
2008
3046
2009
1924
2010
1984
2011
2336
2012
3237
2013
3817
2014*
2004
63
936
1685
661
822
610
56
105
475
1229
1670
977
3
0
1
0
1
4
1
53
386
1011
1267
827
0
0
0
0
0
0
0
0
0
332
1034
817
2007
100%
2008
100%
2009
100%
2010
100%
2011
100%
2012
100%
2013
100%
2014*
100%
2.45% 25.48% 31.58% 14.14% 21.15%
20.03%
2.91%
5.29%
20.33% 37.97% 43.75% 48.75%
Percentages
Year
Copyright - All
Copyright - John
Doe
Copyright - John
Doe (Porn)
Malibu Media v.
Doe(s)
2003
100%
2004
100%
2005
100%
2006
100%
0.12%
0.00%
0.02%
0.00%
0.03%
0.13%
0.05%
2.67%
16.52% 31.23% 33.19% 41.27%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00% 10.26% 27.09% 40.77%
* 2014 includes cases filed from January 1 to June 30, 2014. Source data from PACER.
48.75%
41.27%
40.77%
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¡Muchas Gracias!
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