Worldwide, cases of individuals receiving notifications for illegally downloading films and music are common. During the pandemic, with people staying more at home and the number of streaming services growing, P2P sharing technologies such as torrenting have again grown in popularity.
Along with it, there’s also been a growth of notifications sent by copyright trolls seeking to get money from users who, in fear, end up not seeking their rights and paying immediately what these trolls demand. In many cases users are wrongly notified, IPs are poorly identified or in many cases it is virtually impossible to know exactly who actually downloaded the files illegally.
The use of P2P sharing apps, such as those using the Torrent protocol, is not illegal - as in sharing personal files or files not protected by copyright. The situation becomes more complicated when file sharing of copyrighted material takes place.
“There is no doubt that under US copyright law, sharing copyrighted works without the permission of the copyright owner is illegal,” says Mathew Sag, Georgia Reithal Professor of Law at Loyola University of Chicago School.
Sag adds that “United States copyright law provides copyright owners with the option of statutory damages, and these damages can range from a minimum of $750 to an astounding maximum of $150,000 and it also allows for a successful copyright plaintiff to be reimbursed for their reasonable litigation expenses.”
All of this, says Sag, “give[s] enormous ammunition to plaintiffs in file sharing cases to demand comparatively high settlements for comparatively minimal alleged infringement.” And this gives rise to what many have called Copyright Trolls, “actors that make a business out of copyright enforcement,” explains Cara Gagliano, Staff Attorney at the Electronic Frontier Foundation.
“A key difference between copyright trolls and other rights holders is that trolls actually want people to infringe the copyrights they hold, because that’s how they make their money—they typically aren’t the content creators themselves,” Gagliano explains.
And Farzaneh Badii, Executive Director of the Internet Governance Project at Georgia Tech in Atlanta, agrees, saying that the “rationale behind their actions is to generate revenue. They use and lobby for laws they can make profit from and the positive effect of these laws and harsh enforcement on the society is unfounded and mostly anecdotal.”
Issues with identification
A big problem involved in the Copyright Troll’s actions and lawsuits is that it is hard to identify one specific user who has actually downloaded copyrighted material. This leads to awkward cases such as when RIAA sued a 66-year-old grandmother, Sarah Seabury Ward of Massachusetts, for illegally downloading over 2,000 songs in 2002. But her computer, a Macintosh, was not even compatible with the program she was accused of using, Kazaa.
More recently, in 2019, a retired police officer in his 70’s was falsely accused of sharing several adult films using BitTorrent after his IP address was wrongly identified. In Brazil, over 70,000 people have received out-of-court settlements demanding compensation last year for downloading three blockbuster movies. And in Sweden, also last year, 42,800 people were targeted by copyright trolls for allegedly sharing files through torrent.
“An IP address alone can’t tell you who downloaded a specific file, which is not necessarily the Internet subscriber to whom that IP address is registered. Any number of people (e.g., family members, roommates, guests) can access the Internet from the same IP address, not to mention the fact that IP addresses can be spoofed,” explains Gagliano
In other words, says Omar Kaminski, a lawyer specializing in digital law, “there are situations in which an IP leads to a machine at a certain time and place, but there is no record of who used the machine.”
Copyright trolls’ methods are similar, but the laws of different countries vary enormously as to who can be held responsible for illegal downloads and how evidence can and should be obtained. In Brazil, massive IP collection is illegal, and it is extremely rare for users to be criminalized for illegal downloads, with lawsuits being directed to those who make a profit from the activity.
Different legislations and threats
In Germany, explains Badii, “the wifi providers and ISPs are liable for copyright infringing if their service is used to commit the infringement.” Meanwhile in the US there are several methods lawyers use to go after alleged copyright infringements and users.
“In some jurisdictions they have to get a court order or some other legal order to get the personal information. They might also go through an easier and faster process (like a government agency tribunal). If the personal information is not protected by appropriate laws, the ISP might hand in the personal information even without a court order. And in some jurisdictions the ISP has to send the notice the lawyer has sent to the alleged copyright infringer,” explains Badii.
And, Sag explains, due to cases of misidentification, “copyright trials tend to back off from these if the person gets a lawyer. So you don't see this turn up in the court cases very much,” such as Cobbler Nevada, LLC v. Gonzales, 901 F. 3d 1142 (9th Cir. 2018) that states that the IP address subscriber is not liable for copyright infringement.
So, the copyright trolls’ tactics often resort to “threatening to sue for improbably high statutory damages figures as a way of extracting settlements,” says Gagliano.
Other common tactics, she further explains are “Targeting large groups of anonymous defendants identified by IP address; using cookie-cutter, poorly substantiated litigation tactics to keep their costs down; and targeting vulnerable marks, such as individuals or nonprofits that can’t afford legal counsel.”
To make things worse, “some trolls specifically focus their efforts on pornography downloads, using the threat of public embarrassment to help coerce settlements,” adds Gagliano.
Lame excuses: when trolling backfires
Copyright trolls “claim to have infallible technology, and yet bizarrely may also send infringement notices to people who could not have infringed,” says Sag, adding that “their methods are suspect, to say the least.”
And sometimes this leads to backfire, such as in 2020 when copyright troll Richard Liebowitz was sanctioned, explains Gagliano, “for his pattern of violating court orders and repeatedly lying under oath.”
“Liebowitz has been repeatedly sanctioned by courts across the country, but the consequences last year were particularly noteworthy—he was fined over $100,000 by a federal court in New York and has been temporarily suspended from practicing as an attorney in the Southern District of New York,” she adds.
Badii comments that copyright trolls will tell you that “they want to protect the rights of the authors, that copyright is good for innovation and creativity! Some claim that they are protecting the Internet from dangerous materials, they argue they want to keep us safe.”
But when they use such excuses, Badii notes, “I imagine Fake Gucci bags attacking the Internet.”
In the end, “it's all very opaque,” says Yasodara Cordova, an MPA/Edward S. Mason Fellow at the Harvard Kennedy School in Massachusetts. To her, “once again torrents are being criminalised and torrent is a decentralised technology. It’s quite easy to censor or hold someone responsible for misuse of centralised platforms (such as Facebook), but the governance of decentralized networks is much more complex.”
In addition to the relentless pursuit of easy profit, the action of copyright trolls also aims to undermine decentralized networks and impose centralized governance on the Internet, where users' privacy is lower, and it becomes easier to identify alleged offenders.
About the author: Raphael Tsavkko Garcia is a Brazilian freelance journalist published by Al Jazeera, Foreign Policy, Undark, The Washington Post, among other news outlets. He also holds a PhD in Human Rights from the University of Deusto.