This empirical and doctrinal study of copyright trolling presents new data
showing the astonishing rate of growth of multi-defendant John Doe
litigation in United States district courts over the past decade. It also
presents new evidence of the association between this form of litigation
and allegations of infringement concerning pornographic films.
Multi-defendant John Doe lawsuits have become the most common form of
copyright litigation in several U.S. districts, and in districts such as
the Northern District of Illinois, copyright litigation involving
pornography accounts for more than half of new cases.
This Article highlights a fundamental oversight in the literature on
copyright trolls. Paralleling discussions in patent law, scholars
addressing the troll issue in copyright have applied status-based
definitions to determine who is, and is not, a troll. This Article argues
that the definition should be conduct-based. Multi-defendant John Doe
litigation should be considered copyright trolling whenever it is motivated
by a desire to turn litigation into an independent revenue stream. Such
litigation, when initiated with the aim of turning a profit in the
courthouse as opposed to seeking compensation or deterring illegal
activity, reflects a kind of systematic opportunism that fits squarely
within the concept of litigation trolling. This Article shows that existing
status-based definitions of copyright trolls do not account for what is now
arguably the most prevalent form of trolling.
In addition to these empirical and theoretical contributions, this Article
shows how statutory damages and permissive joinder make multi-defendant
John Doe litigation possible and why allegations of infringement concerning
pornographic films are particularly well-suited to this model.