Copyright Trolls and the Purpose of Intellectual Property Law

If you follow legal or technology issues, you may well have heard of “patent trolling.” This is a well-known practice in which a company that has a patent on an invention it (usually) has no intention of manufacturing or selling, files aggressive patent infringement lawsuits against other companies for producing a similar-enough device as to create an arguable case for patent infringement.

Sometimes, patent trolls don’t even bother to draft and file their own patents; they just buy patents on the cheap, usually from companies that have recently gone bankrupt, and then sue when someone infringes them. If you have no problem getting in the way of a company that’s manufacturing and selling a potentially-useful product, and profit off of the work of others for a quick buck, patent trolling can be a lucrative business.

Now, I have no problem with patent law, in principle. I believe that inventors have a right to protect the fruits of their labor, and that they have a right to sell their patents to anyone they wish.  If you legitimately buy a patent, you should have the right to step into the shoes of the entity who sold it to you.

What I’m getting at, I guess, is a grudging concession that patent trolling should remain legal. But that doesn’t mean I have to like it.

Anyway, it looks like some firms (also reported here and here) are applying the same model to copyright. A group is buying copyrights in articles, editorials, and photographs from the Las Vegas Review-Journal (one of that city’s two major newspapers), and then suing website owners who have reproduced the content, and they definitely aren’t fooling around: they have announced their intent to sue just about anyone who has reproduced any of the content whose copyrights they have bought.

Most newspapers respond to copyright infringement by simply asking the infringing website to take down the content, or at the very least, give it a correct attribution with a link back to the original story. This saves them buckets of money in legal fees, and has the added benefit of not alienating website owners and bloggers who see some value in the newspaper’s content (people whom the newspaper industry desperately needs right now).

However, this copyright “attack dog” uses decidedly different tactics: it immediately files lawsuits against the website owners, seeking tens of thousands of dollars in damages, and forfeiture of the site’s domain name.

Critics have characterized this as a cynical ploy, which has nothing to do with seeking redress for actual harm caused by violations of copyright law, and is instead motivated purely by money. Because defending such a lawsuit is very expensive, even if the defendant wins, they usually decide to settle, paying out a few thousand dollars in exchange for not having to defend against a lawsuit that would cost much more.

Much like patent trolls, this conduct is technically legal, and should remain so, even if I happen to find it pretty morally reprehensible. When copyright plaintiffs cast such a wide net, invariably, innocent people will get caught in it. Tactics like this don’t give them any attractive options: they can settle for several thousand dollars, or they can spend much more money defending themselves in court to clear their name. Either way, people who have done nothing wrong will be forced to fork over a huge amount of money.

We should maybe step back and look at the actual policies that intellectual property law is meant to advance. The U.S. Constitution explicitly authorizes Congress to legislate in the area of patent and copyright, to promote the progress of the useful arts and sciences by granting authors and inventors exclusive rights to their writings and discoveries. The logic behind this is that art and science will be advanced if there is an economic incentive to do so. By ensuring that artists and inventors have exclusive rights to produce their creative works and inventions, such an incentive is created.

But do actions such as this do anything to advance the rationale behind copyright law? I don’t think they do. It’s all well and good to sell patents and copyrights. They’re the property of their owners, after all. However, when someone who has absolutely no interest in putting them to productive use buys them, one must question their motives. Buying a copyright with the sole purpose of manufacturing a cause of action that lets the owner line its pockets runs totally counter to the reasons that intellectual property law exists in the first place. It does nothing to advance the creative arts, and patent trolling does nothing to promote innovation. If anything, these actions hinder innovation and creativity because they occupy the time, money, and energy of people who were making productive use of the patented or copyrighted material.

So, what is the solution to this? Well, besides finger-wagging, disapproving looks, and harshly-worded letters to the people who engage in this conduct, I don’t know if there is one. This is again because we should be free to sell intellectual property rights to anyone we please, just as we can freely sell personal and real property.

Heck, the companies that do this sometimes can’t even be boycotted, because they don’t sell anything – they “make” (a term I use loosely) their money entirely by squeezing settlements out of people.

Without seriously changing copyright and patent law, the only way to stop actions like this is to render them unprofitable. Plaintiffs like this depend on quick settlements to make these tactics cost-effective. If even a significant percentage of defendants would go to trial, and make plaintiffs spend the time and money necessary to prove their case, any profits they get from those who do settle would dry up pretty quickly. It’s risky, of course, and I wouldn’t blame anyone who chooses not to stick their neck out in such a way. But if enough lawyers would take cases like this pro bono, like the Electronic Frontier Foundation is doing, there’s a fighting chance.