The Age of Copyright Trolls?
Robert Zelnick, an attorney at McDermott Will & Emery, recently
interesting article on Righthaven LLC, a company that buys up
copyrights and then licenses them to, or threatens legal action
against, organizations and individuals that post them on the web.
This article about the new "copyright troll" is interesting
and illuminating. There are, however, a few oversimplifications
and at least one point overlooked. First, "dont copy"
is just too simple a solution. As an expert witness in copyright
litigation, I know that things can look the same without being copied.
Also, there are the fair use exceptions that leave lots of wiggle
room. So even if someone doesn't copy at all, there's a chance of
being hit with a lawsuit because two texts are surprisingly similar.
And not copying at all means society will lose important works of
commentary, satire, and news.
Second, Zelnick doesn't foresee the possible ultimate business
model of Righthaven. While I dont agree or disagree with Righthaven's
motives, I believe I see where theyre going. Jerome Lemelson
was perhaps the first patent troll, but definitely the first to
reach $1 billion in personal fortune from his effort. My understanding
is that he started by bringing actions against small companies that
could not easily defend themselves and Japanese companies that didn't
understand U.S. patent law. These companies saw his royalty fees
as small compared to the costs of hiring lawyers to study and defend
the patent infringement suits he brought. After amassing a huge
war chest, Lemelson went after bigger and bigger companies and sought
bigger and bigger payments. The more capital he had, the easier
it was to win these battles.
While Righthaven will probably never collect the multimillion dollar
awards that Lemelson did, consider that nearly everyone in the world
writes. There are thousands of novelists, thousands of journalists,
thousands of researchers, and millions of bloggers. And copyright
also applies to artists, filmmakers, and computer programmers. Righthaven,
and companies like it, can potentially collect more than Lemelson
even hoped for, and at less expense.
I believe that Righthaven and its business model should not be
underestimated. The solution to protecting yourself is more complex
than simply not copying. The exciting part is that this new business
model will create new areas of legal effort and will require the
best technology to allow the protection of both copyrights and free