Judges Increasingly Catching On to Copyright Trolls' Unfair Tactics

Life under the bridge is a bit less comfortable for copyright trolls these days, as a series of legal losses continues to undermine their misguided business model. Trolls make their money through variations on a simple scheme: file mass copyright lawsuits against thousands of people at once without regard for whether they're in the right court, get a judge to give them power to obtain identifying information for the anonymous “Does,” and then send settlement demand letters threatening to name these Does in a lawsuit if he or she doesn’t pay up. In many cases, troll lawsuits are based on allegations of downloading pornography, creating additional pressure to settle rather than risk the embarrassment of being publicly named as watching dirty movies online.

The strategy may be simple, but courts are increasingly rejecting it. In the past few months, judges around the country have picked up the pace and gone after both the legal tactics used for trolling and the lawyers engaging in them.

One battleground is in Florida, where copyright trolls are on a real losing streak. Earlier this month a federal judge in the Northern District of Florida dismissed 27 cases targeting over 3,500 Does — because the lawyer Tarik Hashmi was practicing without a license.

That victory for the legal system follows two major decisions that have collectively taken a shaky legal tactic off the table for trolls. Florida trolls had attempted to use a state law to force ISPs to identify suspected file-sharers. Two different judges rejected that legal theory, quashing subpoenas or dismissing cases outright for nearly 1000 anonymous defendants. Notably, the motions in these cases were brought by the ISPs themselves, which are not happy to be assisting in the process of extorting their customers.

Those decisions are characteristic of what Northern District of Illinois Judge James F. Holderman called a "stiffening judicial headwind" against copyright trolls’ abuse of the legal system. Judge Holderman provided that analysis in an opinion rejecting conspiracy charges [pdf] brought by a troll on similarly legally suspect grounds.

In the Northern District of California, Judge Howard R. Lloyd has been even more direct with the lawyers bringing troll suits. In an order issued late last month [pdf] in Hard Drive Productions v. Does 1-90 the Judge wrote:

the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net).

It's clear that many judges are running out of patience for extrajudicial shakedown operations wasting court resources and victimizing Internet users at large. The Northern District of Texas Court Judge David C. Godbey granted sanctions motions brought by EFF and Public Citizen late last year against prolific porn troll lawyer Evan Stone, complaining in his opinion about Stone's "staggering chutzpah." Judge Godbey's colleague Judge John McBryde echoed that sentiment in another opinion [pdf], saying that Stone "failed to demonstrate the level of candor the court expects of members of the bar of this court."

Stone is joined in ignominy by fellow troll John Steele, who has also been the subject of harsh words from multiple federal judges, including Judge Milton I. Shadur in the Northern District of Illinois. Judge Shadur threw out one of Steele's cases against 300 Does, saying that his "ill-considered lawsuit" "abused the litigation system in more than one way."

And of course Righthaven, which at one point was among the most high-profile copyright trolls in the business but has never won a single case, is now in ruins, losing four appeals so far this year and having its domain name auctioned to pay its opponents’ legal bills.

Sadly, these judges' views are not universally held: too many courts are letting these cases go forward even after being apprised of their fundamental flaws. Several Internet service providers (with amicus support from EFF) have asked a federal judge who signed off on some of these lawsuits in a widely cited opinion to reconsider her determination or let them raise the issue before an appellate court. With hundreds of cases pending, and hundreds of thousands of individuals' right to anonymity online at stake, it is high time for an appeals court to put some uniformity on the law and stop the trolls’ unsavory tactics.