Attorneys, professors, and law students have all engaged in debate over patent trolls in recent years, but copyright has its own trolls whose legal threats and lawsuits may be even more dubious. Student attorneys with the Glushko–Samuelson Intellectual Property Clinic recently submitted Comments in a proceeding at the Department of Commerce explaining how statutory damages provide necessary tools for “copyright trolling.”
The student team, made up of Michael Basile, Christine Casaceli, and Ryan Schneer, and supervised by practitioner-in-residence Brandon Butler, drafted comments on behalf of Andrew P. Bridges, a partner at Fenwick & West LLP. Mr. Bridges has practiced intellectual property law for over twenty years, and currently represents clients in various copyright, trademark, and Internet-related matters. Mr. Bridges filed comments in his individual capacity, not on behalf of his firm or any of his clients, based on his experience litigating and counseling clients affected by statutory damages, including defending against the notorious troll Righthaven. That experience makes Bridges’ perspective a valuable one for the Department to consider.
The clinic’s comment suggests that the statutory damages provision in the U.S. Copyright Act incentivizes predatory behavior. Because plaintiffs can request up to $150,000 in statutory damages without any showing of actual harm, predatory entities can threaten unsuspecting victims with infringement lawsuits with stakes so high that even innocent defendants will settle for several thousand dollars rather than risk losing in court. The comment argues that the copyright trolls’ predatory behavior reduces the free exchange of information, wastes courts’ time and money, and undermines the integrity of U.S. copyright law. The comment concludes by advocating several reforms, including limits to statutory damages and harmonizing U.S. copyright law with the international community.