Over the past several years we’ve covered dozens of copyright troll cases against tens of thousands of alleged copyright infringers.
Our coverage mostly focuses on piracy-related cases, but there are other variants too. Outfits that target blogs and other websites for using photos without permission, for example.
The definition of the term ‘copyright troll’ is fluid. In the file-sharing space it typically refers to parties that accuse large numbers of people of copyright infringement, who are then threatened with legal action and the potential for large damages awards. Targets are encouraged to pay settlements to ensure these legal problems go away.
The phenomenon has been ongoing for well over a decade and while the most severe examples have disappeared, the business model remains active today. According to an amicus curiae brief filed at the Supreme Court last week, the problem could get worse.
Copyright Troll Warning
These cautionary words come from the Electronic Frontier Foundation (EFF), the Authors Alliance, the American Library Association, and the Association of Research Libraries. They intervened in the Warner Chappell Music v. Nealy lawsuit, a music copyright case that in itself is unrelated to copyright trolling.
The case in question deals with the period during which rightsholders can recover damages for copyright infringement, known as the ‘discovery accrual rule’.
According to U.S. copyright law, there is a three-year statute of limitations to file complaints. This period starts after a rightsholder ‘discovers’ the infringement. Courts have been split on whether this three-year limitation also applies to the damages that can be claimed, or if ‘damages accrual’ can go further back.
Don’t Feed the Trolls
According to the amicus curiae brief, an extended damages accrual period could give more ammunition to copyright trolls. It would allow them to claim that they only just discovered infringements that took place many years ago, allowing them to claim damages beyond three years.
“The discovery accrual rule as interpreted by the Eleventh Circuit in this case […] encourages copyright trolling. The ability to recover damages for infringements that occurred an arbitrarily long time ago, as long as litigation is begun within three years of discovery, expands the opportunities to seek nuisance-value settlements against numerous internet users.
“The problem of copyright trolling illustrates why the Court should hold that infringement claims accrue when the infringement occurs, with the three-year statute of limitations running from that date,” the groups add.
Torrents, Photos, and More
The filing provides a detailed overview of the copyright trolling landscape. This includes the many lawsuits filed against BitTorrent users, who are targeted for sharing pirated movies. These lawsuits are typically settled or dismissed and rarely go to trial.
While this practice is still common today, courts have limited their scope; in some jurisdictions, trolls are no longer welcome.
“Many courts have thrown out these suits on procedural grounds (such as improper joinder and lack of personal jurisdiction), and courts have recognized the impropriety of using the judicial process solely to extract quick settlements,” the brief notes.
In BitTorrent cases, rightsholders have to actively monitor for copyright infringements, so lawsuits are not typically filed after many years have passed. For image-related trolling, the position differs.
Reverse image search tools allow photographers and their attorneys to spot content posted a long time ago. They can then go after alleged infringers years later, claiming damages.
“These demands frequently concern images posted well over three years earlier. Such postings cause little or no monetary harm to rightsholders, no significant gain for website authors, and would not otherwise be the subject of litigation,” the brief reads.
Time Limited Damages
The amici are concerned that if rightsholders can claim damages for much longer periods, this would only make the trolling problem worse. In a recent blog post, EFF explains its concerns in detail, asking the Supreme Court to mind the trolls.
Copyright disputes come in many forms, but EFF stresses that courts should ensure judicial safeguards are in place to prevent abuse. They note that limiting the damage period is key to prevent excessive trolling.
“EFF filed its brief in this case to ask the Supreme Court to extend these judicial safeguards, by holding that copyright infringement damages can only be recovered for acts occurring three years before the filing of the complaint.
“An indefinite statute of limitations would throw gasoline on the copyright troll fire and risk encouraging new trolls to come out from under the figurative bridge,” EFF concludes.
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A copy of the full amicus curiae brief, submitted by EFF, the Authors Alliance, the American Library Association, and the Association of Research Libraries, is available here (pdf)
