What Is A Copyright Troll?
Welcome To The Dark Side Of Copyright Infringement
The Copyright Infringement Game
When you get a letter of copyright infringement, it can be one of the most upsetting letters to receive. If it is from the representatives of a well-known author, artist, company or agency, you can bet they are going to pursue it to court. But what if you don't comply? Can they sue you for real money?
- If infringement has to do with using a photograph, music, copied text on the internet, the first notice you get will be a DMCA takedown notice from Google. But since sites like WordPress, Dogpile, and some other internet search engines like Bing, DuckDuckGo, Yahoo, AltaVista, Excite, Ask, Lycos, Technorati have their own notification process in place, for this article, I am only going to address Google's DMCA process.
Some people on the receiving end of the letter simply pay out the requested fee in order to avoid going to court.
But should they be doing that? How do they know for sure they were actually infringing on anyone's copyright? For that matter, how do they know the sender is the actual copyright holder or that the letter wasn't a hoax?
Be very suspicious. There's money to be made in them 'thar hills...
There actually is a law dedicated to cyberstalking. People are finding new ways to harass victims making them have to go to court to prosecute cyberstalkers.
Per Cornell University Law School
47 USC § 223. This is a United States statute which makes it a crime to use any “telecommunications device” to knowingly send anyone “a comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person.” While the statute might seem like it fills in holes, when compared with 18 USC § 875, the statute further states that a telecommunications device does not include an “interactive computer service,” which is defined as:
- any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
Texting and phone calls are covered under this act, but email, social media and internet forums are not covered. This forces the victims to go to court to get justice.
What Does Cyberstalking Mean?
Cyberstalking is when a person, or group of people, use any electronic form of technology (internet, telephone, websites) to harass another person, group of people or an organization.
It can be anything from accusations (true or false), threats, identity theft, damage to data, monitoring internet activity, solicitation for sexual reasons, and/or gathering information to continue harassment.
The statute says the harassment must be to a degree that the harassed person would consider it stressful. (Really!)
How Is Cyberstalking Different From Being Bullied?
Definition of a bully from Dictionary.com:
- a blustering, quarrelsome, overbearing person who habitually badgers and intimidates smaller or weaker people.
I like the definition at Wikipedia.com better which defines bullying as:
- the use of force, threat or coercion to abuse, intimidate or aggressively dominate others, often performed repeatedly and habitually, in order gain power or control over the person or the person's belongings.
Definition of a Cyberbully
According to U.S. Legal Definitions - it is the use of information technology to repeatedly harm or harass other people in a deliberate manner. Cyber-bullying could be limited to posting rumors or gossips about a person on the internet bringing about hatred in other’s minds; or it may go to the extent of personally identifying victims and publishing materials severely defaming and humiliating them
Cyberstalking is a form of cyberbullying:
Cyberbullying includes abuse using, but not limited to, email, instant messaging, text messaging, websites, social networking sites, etc.
Patent Trolls and Trademark Trolls
The following will be addressed in a separate future article; this article will focus only on copyright trolls:
- patent trolls - anyone who tries to enforce patent rights by attempting to collect licensing fees (even though they didn't make the product, own it or supply the services); those who jam up court dockets with multiple infringement claims, usually for large sums of money.
- trademark trolls -anyone who tries to register a trademark with no intention of using it; one who files trademarks for the purpose of using them in the (immediate or far) future with claims of infringement; those who threaten to sue others for using that trademark.
Filing A Counter-Notice Requires Supplying Your Personal Information
When someone accuses you of copyright infringement for posting something on your website, copying an article or using photos that don't belong to you, you should receive a DMCA takedown notice (usually from Google) that your site will be removed from their search engine until you delete the material in question.
If you choose to argue it or fight it by filing a counter-notice, as I have stated in previous articles, your personal information is on your counter-notice and is forwarded to the party who accused you. It is never good for an accuser to have this kind of personal information.
My suggestion? Rent a Post Office Box to use as your mailing address. If you don't want to do that, and still want to fight it, hire an attorney and let him speak for you.
It's not fair to the victim that their contact and personal information is provided on a counter-notice and this is one reason why cases are dead in the water from the start. People know they have to give their personal contact information so they drop the whole matter rather than risk being on the front page of tomorrow's tabloids.
What Is A Copyright Troll?
A copyright troll is an opportunistic person (or company) who has acquired the rights to a copyrighted work (or is an agent for the owner of the work). They typically roam the internet and print publications to locate infringers for the sole purpose of collecting infringement fines.
Copyright trolls usually have quite a number of people on their payroll so they can cover the most territory in the least amount of time to locate an alleged infringement.
They use letters of intimidation to get infringers to pay their fines. Copyright trolls make money by the way they use the legal system against alleged infringers. To them, there is no such thing as an alleged infringer.
The only infringer they know is a guilty infringer.
Internet Search Engines remove infringed work from their search engines.
Who Are The Copyright Trolls?
Copyright trolls are typically attorneys who represent a copyright holder. But a copyright troll can also be the copyright holder's agent or licensing company.
Some of these trolls have fully staffed departments who spend their days trolling the internet looking for infringements of their clients' works, especially targeting peer-to-peer (P2P) networks (example: BitTorrent).
In the past few years, a good number of copyright trolls are representing the porn industry because of the prevalence of watching (streaming, downloading, distributing pirated copies) of pornographic films on the internet.
On Google's Chilling Effects website, one can almost pick out the copyright trolls because they filed DMCA notices by the thousands using the names of music publishing houses and their distributors. They represent the top 100 music artists, and they are the licensing agents for well-known photographers, famous authors, and literary publishing houses.
The Connection of Bullying, Cyberstalking, & Copyright Trolling
It isn't a very big leap from "bullying" to "cyberstalking" to "copyright trolling."
They are all a form of intimidation, using some kind of technology (internet, videos, etc.) as a means to an end.
How Will I Know If I'm Dealing With A Copyright Troll?
Because we are an ever-advancing society, I contend that copyright trolling is akin to bullying.
How They Find You
Copyright trolls jot down the IP address of the alleged infringer, along with the downloaded (viewed) name of the file, the date and the time of day.
Then they have to find out the real name of the person that goes with the IP address and to do that, they must file a lawsuit against these unknown infringers.
With no names, and to hide behind another name so they don't pay individual filing fees for hundreds of unknown infringers, everyone's name on the one lawsuit is listed as "John Doe." Each is only identified in court documents by their IP address, no names, not cities.
For them to get your real name from your internet provider, they must get a subpoena for the ISP (Internet Service Provider). It is their job to match up your IP address with your name and provide it to the employer.
What Can They Do To You?
Once the copyright trolls get your name, the letters and/or phone calls begin. A friend of mine thought they must use a form letter because most of the letters she's seen all have similar wording. "Pay up or go to court."
Accusing copyright infringement using porn sites is a very lucrative business. Most people don't want to be known for this activity, so they pay for silence.
The fines can range from a couple of thousand dollars to as much as $10,000. If you answer that you refuse to pay, they've been known to up the ante with each subsequent letter, always driving the point home that going to court will expose your use of the porn site. They rarely file DMCA notices or Cease and Desist letters. They go right for the money.
- Never negotiate with them.
- Never reply without first obtaining legal advice.
Paying the fines admits your guilt. Don't pay it!.
Almost all their letters end with a threat to take you to court, citing that the court fines will be as much as $150,000 per infringement, plus attorney fees for both parties -if you lose. And they itemize to make sure you know that you will lose.
Some "accused infringers" get scared, especially if they are guilty (or think that someone really has access to their computer or IP address), and they will pony up the requested money.
Other "accused infringers" who know that they are not guilty will respond back that they refuse to pay.
Responding to any of these notices is a mistake because it makes copyright trolls become more aggressive, where they are repeatedly phoning you or sending letters, always stating it is to give you "one last opportunity to pay" by a stated due date to avoid taking you to court.
This is a case of "Thou doth protest too much."
Experts say that most of them will not take you to court, because they know they don't have enough dirt on you to win the case. Their motivation is to scare you into paying them cash up front to settle, not to go to court trying to get a judgment with sketchy proof.
On average, they settle 30 percent of the cases - the rest fall by the wayside or result in court verdicts of very little consequence due to a low show of proof.
- One judge said: "An IP address does not mean the person on the other end is the actual user (or guilty party)."
He's right. With 5 people living in one house, it could have been any one of them. However, homeowners are held liable for any activity that occurs using their IP address. With the prevalence of hackers, and access to WIFI or, as is the case in my city, where my provider can routinely change my IP address in order to provide continuous quality service to a large number of users at one time, then anyone could have been using your IP address, even someone who was assigned your IP address in the past.
"But I got hacked!"
Copyright trolls do not want to hear any defense or excuses, for example, that you were hacked. In fact, they don't want to hear back from you at all, unless your envelope has a check in it.
They are all about the business - the extortion business.
This whole process, even though it takes some preliminary work, is far more profitable than going to court. If they pursued 30 people at $5,000 each, that is the $150,000 that they could have been awarded if they went to court just one time.
The more hot air these letters blow at people, the less likely it is that they have any proof.
Interesting Case of Collecting Fees Due To Piracy
BitTorrent downloaders were accused of copyright infringement of the Sylvester Stallone movie "Expendables 3" because of viewing copies of the movie before it was released to theaters. Now that the film hasn't made as much money as original anticipated, the producers are pursuing piracy fines.
- Per the article where producers posted on message boards, "You may be held liable for monetary damages, including court costs and/or attorney fees if a lawsuit is commenced against you for unauthorized copying and/or distribution of the Work listed above. You have until Sunday, October 5, 2014 to access the settlement offer and settle online."
Isn't That Considered Extortion? You Betcha!
The two videos which follow will show you how attorneys for a particular porn production company are trying to pursue collecting fees from people who they "allege" are infringers, simply by locating them through their ISP (Internet Service Provider) address.
This is not the most reliable way to locate an infringer.
Many ISP's provide WIFI which I use in several rooms of the house. I am hard wired to one computer, but I use WIFI in all the other rooms with my lap top, and my husband and son use their game systems with WIFI internet in order to play online with other gamers.
Some older WIFI connections have no password and you only have to be within range in order to access. Newer WIFI connections require a password. Businesses are notorious for using the day's date or day of the week and anyone knowing that would not have to formally request access to WIFI, they just enter the info and they are in.
WIFI is not a safe secure connection.
Anything you view or information you enter is at risk to become public knowledge to anyone with a little internet savvy. When you use this type of connection, it is important that you change your passwords AFTER you are back on your home turf.
Copyright Trolls Will Work For Anybody
Copyright trolls are not limited to the porn industry.
There is a certain music distribution company with the uncanny ability of locating hundreds of YouTube videos who allegedly used music owned by their clients. They filed DMCA against the users, had their videos taken down and in the cases of repeat infringers, took them to court.
They have a very high success rate for takedowns, but are rarely successful in collecting fines because they give up as soon as the work is removed from the internet. They pursue copyright infringement for the publicity and to embarrass infringers.
Federal Criminal Statutes For Cyberstalking
KGUN9 - videos
Cornell University Law School
EFF - Electronic Frontier Foundation
Google's Chilling Effects - Sample of a DMCA Notice
Many accused (guilty) infringers make the mistake of dialing the phone number of the attorney on their letter, either wanting to settle a claim or looking for more information.
If you ever receive a letter from your ISP that your information was subpoened, or if you have been contacted by copyright trolls, quickly consult an Intellectual Property attorney, since most of these things are time-sensitive.
If you are guilty and interested in settling a claim of copyright infringement, don't share your identity, phone number or contact info. You lose a lot of negotiation leverage because they approach you with familiarity. Always let your attorney do your talking and filing for you.
UPDATE: In May 2014, a federal appeals court said copyright holders cannot sue large lists of John Doe's without a show of proof because it abuses the legal process by obtaining the identities of thousands of Internet users. This ruling came on the heels of over 10,000 John Doe's being sued for copyright infringement in the year 2013.
In a land where copyrights are supposed to protect the author, there will always be someone who will find a way to manipulate the system.
In the videos above, an offer of proof might have put the whole case to rest. But since the copyright trolls did not have to show proof at that time, the lady was caused undue hardship.
© 2020 Rachael O'Halloran