Clifford S. Davidson
 

To Businesses Providing Wi-Fi or Free Internet: Beware of trolls!

May 2013

Clifford S. Davidson
503.243.1653
Recently, there has been a dramatic rise in so-called "copyright trolling" litigation. These lawsuits, several of which have been filed in Oregon, Washington, and California, pose a significant risk to any business that makes Wi-Fi or other Internet connections available for use by customers, guests, clients, employees, or the public.

In order to understand the risks "copyright trolls" pose, it is necessary to know a bit about how they operate. The typical copyright troll is an LLC established for the purpose of enforcing the copyrights of one or several protected works, such as movies or songs. A plaintiff's attorney works in conjunction with that entity and files copyright infringement actions on the entity's behalf.

In order to find potential defendants, the attorney hires a company to search for illegal downloads of particular movies or songs. Such downloads may be traced to specific IP addresses -- unique numbers assigned by Internet Service Providers, such as Comcast, to each subscriber. Once the copyright troll determines the IP addresses used to download the copyrighted materials, the troll files a lawsuit against "unknown" defendants. For example, a case recently filed in Washington is captioned R&D Film 1, LLC v. Does 1-45, where "Does 1-45" are unknown defendants. The troll then subpoenas the Internet Service Provider, e.g., Comcast, in order to learn the true identities of the defendants. The troll then substitutes the real names of the accused copyright infringers for the "Doe" defendants. In this way, copyright trolls are able to file lawsuits against thousands of businesses and individuals, and extort settlements ranging from several-hundred to several-thousand dollars.

Though these lawsuits are problematic for a number of reasons, they are particularly troubling because they do not simply punish individuals who actually download copyrighted materials illegally. These suits also seek to exploit those who provide the network connections downloaders use. This potentially implicates any business providing Wi-Fi as a perk or service to its customers, clients, or employees -- even though such businesses themselves did not actually perform any illegal downloads.

Fortunately, several arguments have been successful in early efforts to dispose of such lawsuits. We have been following the trolling lawsuits closely. If you receive a letter from your Internet Service Provider concerning a subpoena, are actually named in a copyright lawsuit, or would like to discuss risk management, contact Clifford S. Davidson directly, or any member of our Business Litigation Practice Area.

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Litigation

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