“The Uneasy Case Against Copyright Trolls” – Shyamkrishna Balganesh (U of Penn Law)

I recently found a draft of this paper on the Web and the author kindly provided a link to it.  I have only started to read over it and thought the Does and Copyright Defence Attorneys may find it interesting.    SSRN-id2150716    Here is the link for the abstract and paper.

DieTrollDie 🙂


The Uneasy Case Against Copyright Trolls

Shyamkrishna Balganesh

University of Pennsylvania Law School
August 15, 2012

Southern California Law Review, Vol. 86, May 2013
U of Penn, Inst for Law & Econ Research Paper
U of Penn Law School, Public Law Research Paper

The copyright troll and the phenomenon of copyright trolling have thus far received surprisingly little attention in discussions of copyright law and policy. A copyright troll refers to an entity that acquires a tailored interest in a copyrighted work with the sole objective of enforcing claims relating to that work against copiers in a zealous and dogmatic manner. Not being a creator, distributor, performer, or indeed user of the protected work, the copyright troll operates entirely in the market for copyright claims. With specialized skills in monitoring and enforcing copyright infringement, the troll is able to lower its litigation costs, enabling it to bring claims against defendants that an ordinary copyright owner might have chosen not to.

As a matter of law, the copyright troll’s model usually complies with all of copyright’s formal rules. Courts have as a result struggled to find a coherent legal basis on which to curb the copyright troll. In this Article, I show that the real problem with the copyright troll originates in the connection between copyright’s stated goal of incentivizing creativity and the enforcement of copyright claims, which discussions of copyright law and policy fail to adequately capture. Copyright claims, much like other private law claims, are systematically under-enforced. This under-enforcement is neither purely fortuitous nor indeed marginal to the system, but instead operates as an important safety valve that introduces an informal breathing space into copyright’s functioning. Over time, this under-enforcement results in a balance between claims that are actionable and enforced, and those that are actionable but tolerated. It is precisely this balance that the advent of the troll disrupts, since it seeks to enforce claims that copyright owners would have otherwise tolerated.

This Article unpacks the connection between the incentive to create and the incentive to enforce in copyright to show why the troll’s actions are indeed problematic, despite its formal compliance with copyright’s legal rules. In so doing, it shows how the troll exploits the market for copyright claims, which might otherwise have important upsides, and argues that a permanent solution to the problem will entail targeting the troll’s incentive structure rather than using any of copyright’s existing doctrines.

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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6 Responses to “The Uneasy Case Against Copyright Trolls” – Shyamkrishna Balganesh (U of Penn Law)

  1. Subscribe says:


  2. SJD says:

    Good article, while a bit outdated (which is not unexpected from academic research), it digs much deeper that we (and any practicing entity) usually do. Definitively must read for anyone who is seriously interested in the trolling phenomenon and is used to think broader than in how to quash a subpoena terms.

    Thank you, Shyamkrishna Balganesh.

  3. John Doe says:

    How would one forward something like this to a judge? I feel like this sort of in-depth discussion of the legal merits is super important for judges to be considering.

    • that anonymous coward says:

      That is a really good question I wish we knew the answer to.
      There are many “issues” we keep having to revisit with Does over and over because the same bad claims are made in court after court. It would be nice to have a nice brief that could be filed everytime we find a copyright case, covering the most common claims and the flaws with them. A Troll 101 Primer for Judges as it were. Some Judges are savvy enough to locate DTD and SJD (or get directed there) and even reference them in rulings.
      How awesome would it be to boil down the basic problems these cases have and submit it to each Judge assigned a troll. We could also prepare a “living” document for each specific troll firm, showing the cases they have opened and fled after getting names. Copies of the extortion letters, etc… destroying any hope of a Judge thinking these are good lawyers helping their clients that this is more a money making scheme hiding behind a sheepskin.
      If only there were a group who wanted to stand up for the public’s rights in these cases… instead of leaving the heavy lifting to regular people without spiffy law degrees.
      (There might just be the smallest touch of sarcasm in there.)

      I admit I am not the best poster child for these things, Guy Fawkes avatar and all but I am way more trust worthy than the trolls. Trolls have these things boiled down to a basic outline they just plug details into, why can’t our side do the same?

      • John Doe says:

        That would be incredible. I’d help with that project.

        I do think it wouldn’t fly without a fancy lawyer putting his name all over it though, ideally representing the EFF. But if we do most of the leg work, maybe someone over there would be willing to edit it for clarity and put their name on it.

      • that anonymous coward says:

        We have a few legal types who wander in and out who might be able to help with a general framework we should be using.
        My sarcasm might have been about the EFF, they have filed so few briefs and only in very high profile cases.
        If we were able to create the right document, it might be possible to get them to file it.
        I think we should pursue this idea further.
        I can think of a 3rd document that is important as well, a letter to be sent out with every “settlement” demand explaining the Does rights to them. The glaring holes in the “evidence” and how it is no where near as accurate as they want everyone to believe.
        That these are merely allegations the connection they pay for was used improperly (maybe), and if they have never used a BT client to download anything they can start breathing again.

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