Remember the sad experience of Research in Motion, Canada’s leading wireless company, which was successfully sued in a Virginia court for more than US$600 million by U.S. patent troll NTP?  Get ready for another incarnation – the copyright troll. Trolls, are companies that buy up intellectual property for the sole purpose of suing users.  These “non-practising entities” create nothing and have no intention of marketing their intellectual property.

There are two business approaches to controlling copyright. Traditionally, the field has been dominated by those that simply want their copyrights respected.  Those owners would send out a cease and desist letter and would be satisfied when the offender removed the offending material and apologized. Problem solved. Copyright trolls have developed a new approach, hoping to earn cash not by marketing their products, but by swooping down on unsuspecting small operators with few resources to fight back, and making exorbitantly punitive demands. They set the bait by allowing their copyrighted video, picture or text to be freely available and then they pounce. In the USA, the copyright act provides for damages of up to US$150,000 for a single infringement. In Canada the $20,000 penalty per infringement is much less, but like the US law, the fine can be levied without proving damages. Canada and the USA are among the very few countries that enforce these “statutory damages”.

The Recording Industry Association of America has led the way in suing users for copyright infringement in the United States. But there’s a new kid on the block, Righthaven, a Las Vegas-based legal firm set up for the sole purpose of buying copyrights and suing infringers.  What makes it unique is that it seemingly first scours the Internet for possible infringements, and only then buys up the copyright from owners in order to sue unsuspecting web site operators.  It is how the company can make a fast buck by “shaking down” the  “infringers”. The company director, and former Michelle Obama colleague, Steve Gibson claims that there are billions of infringers out there and so Righthaven is planning a rapid expansion that could have repercussions in Canada. Republican Sharron Angle, a candidate for the U.S. Senate in Nevada, is in Righthaven’s sights. She’s being sued for “unspecified damages” because her campaign website contained a reprint of a newspaper article, a pretty common practice in western democracies. In another case, Righthaven has  sued the source of the information on which an article was based. An interviewee simply posted the published interview on his web site and this was enough to trigger a Righthaven lawsuit. Another unfortunate blogger quoted two lines from an article and then linked to the appropriate newspaper webpage. He is now being sued for US$75,000 and the loss of his domain name.  Righthaven has stated that it will not tolerate blogs that print even a few sentences from copyrighted articles. So much for fair use rights that permit copying for education, research, parody, satire etc.

The multimillion dollar business case relies on the threat of harsh penalties and costly legal fees that scare users into settling out of court. Righthaven even threatens to take away the user’s domain name.  This company doesn’t send out a “takedown” or “cease and desist” notice to give the users a reasonable opportunity to comply, but rather goes straight for the jugular. In true cowboy style, it shoots first and asks questions later.  These shakedowns have so far been about 30% successful and range from $2,000 to $5,000 per victim.

One attorney has described the trolling approach to setting a wild boar loose in a china shop with a hidden piece of bacon.  The boar will get the bacon but in so doing will destroy everything else. This approach can only undermine the legitimacy of copyright. The original creators of copyright who intended it to support “learning and the useful arts” must be rolling over in their graves. These trolls have succeeded in mutating copyright into a caricature of its original intent. They are clearly abusing the legal system for profit and deliberately misusing and undermining copyright law for personal gain. And if you think you are safe up here in Canada from the likes of Righthaven, think again. Remember RIM.